When the Greater London Authority was created in 2000, it assumed responsibility for certain highways in the Greater London area. To that end, the Secretary of State, acting pursuant to his power under section 14A of the Highways Act 1980, designated Transport for London, a body responsible to the Mayor of London, as the highway authority for those highways, known as “GLA roads”. The Secretary of State subsequently made the GLA Roads and Side Roads (Transfer of Property etc) Order 2000, article 2 of which 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”. In an arbitration between two local authorities and Transport for London, the arbitrator determined that the effect of the Order was to transfer to Transport for London the entire interest of the relevant local authority in the land on which the highway ran (in so far as not already appropriated to some other use), rather than to transfer only the surface of the highway and sufficient sub-soil (normally called the two top spits) as was necessary for the maintenance of the surface. The judge dismissed the local authorities’ appeal.
On appeal by the local authorities—
Held, appeal allowed. There was no statutory definition of “highway” either in the Highways Act 1980, save for the very limited provision in section 328, or in the Greater London Authority Act 1999. It was therefore necessary to have regard to its meaning at common law. When legislation vested in a highway authority a “highway” or a “road” or a “street” for the purpose of its maintenance as a public highway, the authority did not become the owner of the freehold interest in the entirety of the land on which the highway ran but only of the surface and such part of the sub-soil (“two spits”) as was necessary for the maintenance of the highway. That was the common law meaning of a highway. But the meaning of the word in any particular legislation should always be determined having regard to its statutory context. “Highway” in article 2(1) of the 2000 Transfer Order was intended to carry its ordinary legal meaning. The councils were right in their identification of the purpose of the provisions. The purpose was that TfL should be the highway authority for the GLA roads. As with any highway authority, all that was needed to achieve that end was to vest the surface and necessary sub-soil in TfL. No adequate explanation had been provided by TfL as to why the residents and ratepayers of the councils should be deprived, without compensation, of more property than was necessary to fulfil that purpose—essentially the same point as underpinned many of the cases from the mid-19th century onwards (paras 22, 33, 47–56, 57, 58, 59, 60).
David Elvin QC and Richard Moules (instructed by Dentons UKMEA LLP) for the local authorities.
Timothy Morshead QC and Charles Banner (instructed by Wragge Lawrence Graham & Co LLP) for Transport for London.