Southwark London Borough Council and Another v Transport for London
| Jurisdiction | England & Wales |
| Judge | Lord Justice David Richards,Lord Justice McCombe,Lord Justice McFarlane |
| Judgment Date | 04 August 2017 |
| Neutral Citation | [2017] EWCA Civ 1220 |
| Docket Number | Case No: A3/2015/4278 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 August 2017 |
[2017] EWCA Civ 1220
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr JUSTICE MANN
HC-2015-000260
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McFarlane
Lord Justice McCombe
and
Lord Justice David Richards
Case No: A3/2015/4278
David Elvin QC and Richard Moules (instructed by Dentons UKMEA LLP) for the Appellants
Timothy Morshead QC and Charles Banner (instructed by Wragge Lawrence Graham & Co LLP) for the Respondent
Hearing dates: 1–2 March 2017
Introduction
When the Greater London Authority was created, it assumed responsibility for certain highways in the Greater London area. To this end, Transport for London (TfL), a body responsible to the Mayor of London, was made the highway authority for highways designated by the Secretary of State as "GLA roads". In order to give effect to this, the Secretary of State by statutory instrument transferred from the council of the relevant London borough to TfL "in relation to each GLA road … the highway, in so far as it is vested in the former highway authority".
The issue on this appeal is whether the effect of that provision was to transfer to TfL the entire interest of the relevant council in the land on which the highway ran (in so far as not already appropriated to some other use) or only the surface of the highway and sufficient sub-soil (normally called the two top spits) as is necessary for the maintenance of the surface.
The issue arises in disputes between TfL and each of the London Borough of Southwark and the City of London Corporation concerning the property rights acquired by TfL in connection with GLA roads situated in those two local authority areas. I will call the local authorities "the Councils".
These disputes were referred to arbitration under article 8 of the GLA Roads and Side Roads (Transfer of Property etc.) Order 2000 (SI 2000 No 1552) (the Transfer Order). Mr John Male QC was appointed arbitrator and he directed this and other issues to be tried as preliminary issues with a single hearing in both arbitrations. By an award dated 27 November 2014, he determined, in short, that the effect of the provision in issue was to transfer the entire interest of the local authority concerned (subject to such parts as had been appropriated to other uses) to TfL.
The Councils appealed under the Arbitration Act 1996 to the High Court. The appeal was heard by Mann J, who dismissed the appeal. The appeal to this court is made with permission granted by the judge.
The statutory framework
The Greater London Authority (the GLA) was established by the Greater London Authority Act 1999 (the GLA Act). It provided for a directly-elected Mayor of London and the elected London Assembly. It also established TfL as a body directly accountable to the Mayor or a chairman appointed by the Mayor. TfL was to be responsible, among other things, for the road maintenance and traffic management of the most important roads in London, designated as GLA roads. To this end, section 259 provides that TfL is to be the highway authority for GLA roads.
The principal statute governing highways is the Highways Act 1980 (the 1980 Act).
Section 1 of the 1980 Act makes provision for highway authorities. Responsibility for highways is divided among a variety of authorities, depending on the importance of the highway. The Secretary of State is the highway authority for trunk roads and certain other roads. Outside Greater London, the council of a county or metropolitan district is the highway authority for all other roads in the county or district. The GLA Act added section 1(2A), making TfL the highway authority for all GLA roads. The council of a London borough or the Common Council of the City of London is the highway authority for all other highways in the borough or in the City (as the case may be).
To give effect to the highway provisions in the GLA Act, sections 260 to 266 of that Act introduced sections 14A to 14D into the 1980 Act as a group under the heading "GLA roads". By section 14A, the Secretary of State was empowered to designate by statutory instrument "highways or proposed highways as highways which are to be GLA roads". Section 14B requires the Mayor to "keep under review the system of highways and proposed highways in Greater London" and the allocation of responsibilities for them among the different local highway authorities. The GLA may by order direct that a highway or proposed highway shall become or cease to be a GLA road. Section 14D provides for the definition of a GLA road as any highway or proposed highway which is for the time being a GLA road.
It is convenient here to refer to other provisions of the 1980 Act which are material to the issue of construction on this appeal.
Section 263(1) provides that "every highway maintainable at the public expense, together with the materials and scrapings of it, vests in the authority who are for the time being the highway authority for the highway". This provision, which has a continuing effect, provides for the automatic vesting of highways maintainable at public expense, subject to certain exceptions.
Section 265 provides for the transfer of property and liabilities upon a highway becoming or ceasing to be a highway. It is of particular relevance because it is apparent that it served as the model for the transfer provisions for GLA roads in issue in this case. Section 265(1) and (3) provide:
"(1) Where a highway becomes a trunk road, then, subject to the provisions of this section, as from the date on which the highway becomes a trunk road ("the operative date"), there are transferred to the Minister by virtue of this section –
(a) the highway, in so far as, immediately before the operation date, it was vested in the former highway authority,
(b) the property mentioned in subsection (3) below, in so far as, immediately before the operative date, it was vested –
(i) in the former highway authority for the purposes of their functions in relation to the highway, or
(ii) in a council for the purposes of functions in relation to the highway under any enactment to which this section applies, and
(c) all liabilities incurred by any such authority or council for the purposes of their functions in relation to the highway and not discharged before the operative date, other than loans and loan charges, and the highway and other property so transferred vest, by virtue of this section, in the Minister.
(2) …
(3) the property referred to in subsection (1)(b) above is –
(a) land, other than land –
(i) vested in the former highway authority for the purpose of being used for the storage of materials required wholly or mainly for the maintenance and improvement of other highways, or
(ii) acquired for the improvement or development of frontages to the highway, or of land adjoining or adjacent to the highway, and
(b) all other property (including the unexpended balances of any grants paid by the Minister to the former highway authority, or to any council for the purposes of their functions in relation to the highway), other than –
(i) materials to be used for the maintenance or improvement of the highway, and
(ii) the unexpended balances of any loans raised by the former highway authority, or by any council for the purposes of their functions in relation to the highway."
Section 265(7) provides that these provisions are to apply in like manner when a highway ceases to be a trunk road.
Section 266A was introduced by the GLA Act to provide for the transfer of property and liabilities upon a highway becoming or ceasing to be a GLA road by reason of an order made by the GLA under section 14B(2). It does not apply to the designation of a GLA road by the Secretary of State under section 14A, but it is relevant to the arguments on the issue in this case. Section 266A(2) and (4) provide:
"(2) As from the operative date there are transferred to the new highway authority by virtue of this section –
(a) the property mentioned in subsection (4) below, in so far as, immediately before the operative date, it was vested in the former highway authority for the purposes of their functions in relation to the transferred highway, and
(b) all liabilities incurred by any such authority for the purposes of its functions in relation to the transferred highway and not discharged before the operative date, other than loans and loan charges, and the property and liabilities so transferred best, by virtue of this section, in the new highway authority.
(3) …
(4) The property referred to in subsection (2)(a) above is –
(a) land, other than land –
(i) vested in the former highway authority for the purpose of being used for the storage of materials required wholly or mainly for the maintenance and improvement of other highways, or
(ii) acquired for the improvement or development of frontages to the highway, or of land adjoining or adjacent to the highway, and
(b) all other property (including unexpended balances of any grants paid by the Minister to the former highway authority), other than –
(i) materials to be used for the maintenance or improvement of the highway, and
(ii) the unexpended balances of any loans raised by the former highway authority."
The 1980 Act does not contain a comprehensive definition of "highway". Section 328(1) leaves the meaning of "highway" at large but provides:
"In this Act, except where the context otherwise requires, "highway" means the whole or a part of a highway other than a ferry or waterway."
Pursuant to section 14A of the 1980 Act, the Secretary of State made The GLA Roads Designation Order 2000 (SI 2000 No. 1117) which came into force on 22 May 2000. Article 2...
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