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How far does a highway extend?
It may be surprising that there is no comprehensive statutory definition of a “highway”. Reliance is placed on case law and the common law definition – a way over which all members of the public have the right to pass and repass as of right (i.e. not on sufferance or by licence). But how far does the highway extend? When a highway is created very often the ownership of the sub-soil under the highway does not change and remains with the owner of the land concerned. That normally does not cause problems, but in the case of Southwark LBC v Transport for London  EWCA Civ 1220 the lack of any definition of the extent of the highway resulted in a dispute involving two London Councils and Transport for London (TfL).
When the Mayor of London was created, TfL was made the highway authority for certain highways. In order to give effect to this, the Secretary of State by statutory instrument transferred the relevant “highway” from the London borough to TfL. The issue was whether title to all the sub-soil under each highway (where this was owned by the London borough) was transferred to TfL. Although an arbitrator and the High Court decided that it did include all the land the Court of Appeal disagreed. The Court of Appeal referred to the common law meaning of the extent of the “highway” as the road surface and the top two spits of subsoil necessary for its use as a highway (a “spit” being the depth of a spade). The Court said that all TfL needed to become the highway authority, was the vesting of the surface and the subsoil necessary for its use. There was no reason why local authorities should be deprived of more property than that which was necessary to transfer the highway.
The case is interesting in confirming that the highway authority’s ownership extends just to the top two-spits of sub-soil and that otherwise, ownership remains with the original owner. It must be remembered however that even though the landowner retains ownership, highway authority consent (under the Highways Act 1980) is generally still required to carry out works under or over a highway.
If you need any advice regarding a matter like this, please do not hesitate to contact our experienced team of planning solicitors.