Southwark London Borough Council and Another v Transport for London
| Jurisdiction | England & Wales |
| Judge | Lady Hale,Lord Reed,Lord Carnwath,Lord Lloyd-Jones,Lord Briggs |
| Judgment Date | 05 December 2018 |
| Neutral Citation | [2018] UKSC 63 |
| Court | Supreme Court |
[2018] UKSC 63
Lady Hale, President
Lord Reed, Deputy President
Lord Carnwath
Lord Lloyd-Jone
Lord Briggs
Appellant
Timothy Morshead QC
Charles Banner
(Instructed by Gowling WLG (UK) LLP (Birmingham))
Respondents
David Elvin QC
Richard Moules
(Instructed by Dentons UK and Middle East LLP (London))
Respondents:-
(1) London Borough of Southwark
(2) City of London Corporation
Heard on 24 and 25 October 2018
(with whom Lady Hale, Lord Reed, Lord CarnwathandLord Lloyd-Jonesagree)
This appeal raises an interesting but complicated question as to the meaning of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000 ( SI 2000/1552) (“the Transfer Order”) made by the Secretary of State in exercise of powers conferred by section 405 and following of the Greater London Authority Act 1999 (“the GLA Act”). By that Act Parliament reorganised local government in London and created the Greater London Authority (“GLA”) under a directly elected Mayor of London. The GLA performs its strategic transport and road traffic functions through the appellant Transport for London (“TfL”), which became the highway authority for those public highways in London designated as GLA roads, in the GLA Roads Designation Order 2000 (SI 2000/1117) (“the Designation Order”). Previously those highways had been the responsibility of individual London borough councils as local highway authorities including, for their respective areas, the respondents London Borough of Southwark and the City of London Corporation (“the Councils”).
As its name implies, the Transfer Order provided for the transfer from local highway authorities to TfL of specified property and liabilities relating to highways designated as GLA roads by the Designation Order. The present dispute concerns, in particular, the meaning of the following provisions in article 2 of the Transfer Order (“article 2”):
“(1) Subject to paragraph (2) and article 4 below, on the operative date there are hereby transferred to Transport for London in relation to each GLA road -
(a) the highway, in so far as it is vested in the former highway authority;
(b) the property mentioned paragraph (3) in so far as, on the designation date, it was vested -
(i) in the former highway authority for the purposes of their highway functions in relation to the GLA road …
…
(3) The property referred to in paragraph (1)(b) is -
(a) land, other than land -
(i) vested in the former highway authority for the purpose of being used for the storage of material required wholly or mainly for the maintenance and improvement of other highways;
(ii) where the former highway authority is a relevant authority, held by that authority for the improvement or development of frontages to the highway, or of land adjoining or adjacent to the highway; …”
The dispute arose, and was directed to be determined as a preliminary issue, in an arbitration held under article 8 of the Transfer Order. At its heart, the appeal is about what is transferred by the words in paragraph (1)(a) of article 2:
“the highway, in so far as it is vested in the former highway authority.”
The question is whether that phrase captures everything which the former authority owns in the vertical plane bounded by the road, which may include all the airspace above and all the subsoil below the surface of the road, or only that part which is necessary for the operation, maintenance and repair of the road, ie a slice of the airspace and a slice of the underlying subsoil.
The Secretary of State's drafting team adopted, as their model for article 2, the content of section 265 of the Highways Act 1980 (“section 265”) which provides for the transfer of property and liabilities upon a highway becoming, or ceasing to be, a trunk road. Although not part of that Act, article 2 therefore forms part, at least by inheritance, of what counsel fairly described as the rich tapestry of the highways legislation in England and Wales.
In Farrell v Alexander [1977] AC 59, at 73, Lord Wilberforce said:-
“… self-contained statutes, whether consolidating previous law, or so doing with amendments, should be interpreted, if reasonably possible, without recourse to antecedents, and that the recourse should only be had when there is a real and substantial difficulty or ambiguity which classical methods of construction cannot resolve.”
Goodes v East Sussex County Council [2000] 1 WLR 1356 was a case about the Highways Act 1980, and its predecessor, the Highways Act 1959. After citing Lord Wilberforce's well-known dictum, Lord Hoffmann continued, at p 1360H:
“It seems to me quite impossible, in construing the Act of 1959, to shut one's eyes to the fact that it was not a code which sprang fully formed from the legislative head but was built upon centuries of highway law. The provisions of the Act itself invited reference to the earlier law and in some cases were unintelligible without them.”
See also, to much the same effect: Cusack v Harrow London Borough Council [2013] UKSC 40; [2013] 1 WLR 2022, per Lord Carnwath at para 19 and per Lord Neuberger at paras 64–65.
Lord Wilberforce's wise words have lost none of their force, in an era which has seen an exponential increase in the complexity of legislation. It is hard enough on the law-abiding public that legislation is often unintelligible without the assistance of skilled lawyers. It is even worse if its meaning requires, in addition, the assistance of a legal historian. None the less, this is a case, as were the Goodes and Cusack cases, where neither the analysis of the dispute as to statutory meaning, nor the appropriate solution to it, can be undertaken without substantial recourse to the history of English and Welsh highways law and in particular legislation. Even the innocent sounding word “highway” is itself capable of having a range of different meanings, dependent upon the context in which it is used.
The word highway has no single meaning in the law but, in non-technical language, it is a way over which the public have rights of passage, whether on foot, on horseback or in (or on) vehicles. At common law, at least prior to 1835, there was, generally speaking, no necessary connection between those responsible for the maintenance and repair of a public highway and those with a proprietary interest in the land over which it ran. Prima facie the inhabitants of the parish through which the highway ran would be responsible for its repair, but they were not a corporate body suitable to hold ownership rights in relation to it: see Sauvain on Highway Law (5th ed, 2013) at para 3–05. As he puts it:
“It was left to statute, therefore, to create an interest in land which was to be held by the body on whom the duty to repair had fallen.”
Parliament began this task, in a rudimentary way, in section 41 of the Highways Act 1835, continued it in section 68 of the Public Health Act 1848, section 96 of the Metropolis Management Act 1855 and section 149 of the Public Health Act 1875. They all provided for a form of automatic vesting of a property interest in the land over which the highway ran in favour of the body responsible for its maintenance and repair.
A basic feature of the conveyance or transfer of freehold land by reference to an identified surface area is that, unless the context or the language of the grant otherwise requires or provides (eg by a reservation of minerals), its effect is to vest in the transferee not only the surface of the ground, but the subsoil down (at least in theory) to the centre of the earth and the air space up (at least in theory) into the heavens. Viewed in the vertical plane, the transferee acquires ownership not only of the slice on the surface but of the whole of the space above it, and the ground below it.
But a series of 19th century cases beginning with Coverdale v Charlton (1878) 4 QBD 104 and culminating in the decision of the House of Lords in Tunbridge Wells Corpn v Baird [1896] AC 434, established that the successive statutory provisions for the automatic vesting of proprietary interests in highways in the bodies responsible for their maintenance and repair operated in a much more limited way than would a simple conveyance or transfer of the freehold. First, it was a determinable, rather than absolute, fee simple, which would end automatically if the body responsible for its repair ceased to be so responsible (eg if the road ceased to be a public highway): see Rolls v Vestry of St George the Martyr, Southwark (1880) 14 Ch D 785. Secondly it was inalienable, for so long as that responsibility lasted. Thirdly, and most importantly for present purposes, statutory vesting conferred ownership only of that slice of the land over which the highway ran, viewed in the vertical plane, as was necessary for its ordinary use, including its repair and maintenance. Following the example of counsel, I shall call this “the Baird principle”.
That slice of the vertical plane included, of course, the surface of the road over which the public had highway rights, the subsoil immediately beneath it, to a depth sufficient to provide for its support and drainage, and a modest slice of the airspace above it sufficient to enable the public to use and enjoy it, and the responsible authority to maintain and repair it, and to supervise its safe operation. That lower slice was famously labelled “the top two spits” in Tithe Redemption Commission v Runcorn Urban District Council [1954] 1 Ch 383 at 407. A spit is a spade's depth. Although colourful, that phrase says nothing about the necessary airspace above the surface. Again following counsel's example, I prefer the phrase “zone...
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