Earlier this year the High Court gave a ruling on the extent of a highway. Given the sheer number of highways, and the thousands of years over which they have been created and used, it is perhaps surprising that, legally, we may not know exactly what a highway includes.
The recent case
In KBC Developments LLP v Wavin Ltd & Anor, both the horizontal and vertical extent of the highway were in dispute.
The highway in question had been adopted pursuant to a Section 38 agreement under the Highways Act 1980. This set out the terms of the adoption. You would assume there would not be a huge amount of room to argue the highway extent with a specific agreement in place. Fortunately for those of us who rely on highways searches and the content of highways agreements to advise clients who are connecting new developments into existing adopted highways, the High Court largely agreed. The plan attached to the Section 38 agreement was the plan showing the adopted area, despite the fact that the plan on the related planning application showed a slightly smaller area. So far, so good.
Unfortunately, plans are flat, and roads require airspace. Unsurprisingly the agreement in question did not specify how much airspace was included in the adoption.
This is generally not an issue: if a highway is adopted it can safely be assumed to have to function as a highway and have sufficient airspace to do so.
On this occasion, the position was slightly more complicated as the highway ended with a hammerhead or cul-de-sac. At the end of the cul-de-sac was a railway line, on the other side of which was an area of land with planning permission for development. The development plans included constructing a bridge over the railway line to connect into the cul-de-sac. The plans on the Section 38 agreement were clear that the adopted highway ran to the boundary of the railway line.
The developer who had created the cul-de-sac sought to claim it had a vertical ransom strip. It maintained that, even if the highway abutted the railway line at ground level, the Section 38 agreement did not provide for adoption of the whole of the vertical area, i.e. all the sub soil and, critically, all the airspace. In the earlier case of Southwark London Borough Council & City of London Corp v Transport for London, the Supreme Court stated that adoption was: “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.” The very end of the hammerhead was pavement and, as such, the developer seeking a ransom maintained that only enough airspace for pedestrians was included in the adoption.
The court, however, took the view that the hammerhead had been intended to connect into a possible extension of the highway and a bridge over the railway. Therefore, the highway had to include enough airspace to facilitate this.
While this is a good outcome for parties trying to connect into highways, it does act as a reminder that highway is not necessarily as clearly defined as might be anticipated.
Interestingly, Southwark London Borough Council & City of London Corp v Transport for London (the case the judge quoted in the KBC Developments decision) did not result in the creation of a highway with limited airspace. On that occasion, the relevant highway authority took all the vertical area held by the party it was taking the highway from.
Here, Transport for London was taking over an existing highway from a local highways authority under the GLA Roads Designation Order 2000. The Supreme Court ruled that, in that situation, the new highway authority took the whole of the previous area held as highway, so that included everything the old highway authority owned. Nothing could be left with the old authority even if the area was greater than “was necessary for [the highway’s] ordinary use.”
By way of contrast, in the 2006 High Court case of Bexley London Borough Council v Maison Maurice Limited, the local authority used a compulsory purchase order (CPO) to obtain land to build a dual carriageway. Maison Maurice Limited (MM) was one of the landowners whose land was bought. The local authority built the dual carriageway and, next to it, a footpath. On the other side of the footpath it put in a concrete strip, and between that and MM’s land, a fence.
There is, or perhaps was, a general presumption that where a road runs between two hedges or fences, the whole of the area between those items is highway. This has been discussed in case law for over 150 years. In this case, the whole of the relevant part of the area compulsorily purchased to allow the building of the new highway was fenced in.
MM obtained planning permission for a new access onto the dual carriageway. It paid the local authority to build a crossover into the dual carriageway and used this access for two years with no objection from the local authority. At this point the local authority stated that MM had no right to access the dual carriageway where it had, and that it needed to pay the local authority for a licence if it wanted to continue to use that access. The local authority claimed that the strip of concrete between the footpath and the fence did not form part of the public highway, and that this had been deliberately created as a ransom strip to control access to the highway. MM relied on the hedge-to-hedge presumption to argue that the concrete strip formed part of the public highway and was not, therefore, a ransom strip.
On this occasion the decision was that the adopted highway did not include the whole of the area taken by the local authority. The court held there was no general hedge-to-hedge presumption but that, if the fence could be shown to have been erected to separate private land from an area over which a right of way was held, then a presumption of adoption as public highway could arise in relation to the land between the fence and the made up surface of the highway. The concrete area was accepted as a ransom strip.
While the court found against MM in terms of highway adoption, it ruled that the local authority was estopped from denying MM’s access, because MM had blocked up its original access when the local authority had granted the new one.
So, what can you rely on?
A large part of the uncertainty may be inherent in the nature of highways. Highways have existed as long as humans have had settlements but the form of these and their role has changed over time as societies have moved on. Adopted highways now can and do change in nature, as roads are closed or repurposed as bus lanes or cycle lanes, with the corresponding restrictions on use.
Ultimately every challenge to the extent of an adoption will be assessed on its own merits. The exact wording of all the relevant documents will need to be reviewed along with all plans. For most highway development this will probably be enough, but there is a need to be aware that highway extent is not necessarily clear cut.