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16/04/2020

Legal landscape: Working on the highway

Words:

What constitutes a highway and how does the phrase ‘the top two spits’ affect which body is responsible for its upkeep? Here, Ruth Stockley explores the latest Supreme Court ruling on highways and what it could mean for developers.

At first blush, the word ‘highway’ is a simple, commonly used term. Somewhat surprisingly, its meaning is not defined in the Highways Act 1980.

Moreover, in the most important highway case reaching the Supreme Court in recent years – London Borough of Southwark v Transport for London [2018] – Lord Briggs stated: “There is in my view no single meaning of highway at common law. The word is sometimes used as a reference to its physical elements.

“Sometimes it is used as a label for the incorporeal rights of the public in relation to the locus in quo. Sometimes, as here, it is used as the label for a species of real property. When used within a statutory formula, as here, the word necessarily takes its meaning from the context in which it is used.”

A flexible term

A reference to ‘highway’ must always be interpreted in the specific context in which it is used.

Developers should be alert to the flexibility of the term’s meaning and ensure that in any negotiations all parties are referring to the same concept.

A highway’s depth was a focus of the court’s decision. A non-maintainable highway has no depth; it merely comprises its surface over which the public has the right to pass.

“There is in my view no single meaning of highway at common law. The word is sometimes used as a reference to its physical elements” 
– Lord Briggs

In contrast, the depth of a highway maintainable at the public expense vesting in a highway authority under section 263 of the Highways Act comprises the “zone of ordinary use”, a phrase to replace the oft-used words “the top two spits”. The zone of ordinary use is such depth below the surface, and such airspace above, necessary to enable the authority to undertake its highway functions.

That will inevitably vary on a case-by-case basis: a busy urban carriageway will comprise a greater depth and airspace than a rural footpath. The depth must be sufficient to provide for the highway’s support and drainage. The subsoil below and the airspace above that zone of ordinary use are excluded from the highway, and their ownership remains with the subsoil owner, often the adjoining landowners pursuant to the ad medium filum rule.

The rights of ownership

Implications for developers are significant. Elements of development outwith the zone of ordinary use are not within the highway and the consent of the landowner will be required.

Examples include new bridge structures, both in terms of foundation and height; suspended structures over the highway; and infrastructure in the subsoil where the powers of statutory undertakers cannot be relied upon.

In addition, any development value in the subsoil below and the airspace above the highway should be protected.

Further, the subsoil owner retains all other rights of ownership in the land over which the highway runs, including being the only person with the capacity to dedicate a highway with greater rights over it.  


In brief 

  • Developers should be alert to the flexibility of the term’s meaning and make sure that all parties to negotiations are referring to the same concept. 
  • A non-maintainable highway has no depth; it just comprises a surface over which the public has the right of way. 
  • Development outside the zone of ordinary use are not within the highway and the landowner’s consent is required: e.g. new bridges and suspended structures over the highway.

Ruth Stockley is a barrister at Kings Chambers specialising in highways and road traffic regulation and environmental law

Image credit | Shutterstock

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