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On appeal from: [2017] EWCA Civ 1220

This appeal considered whether the effect of a Transfer Order, which transferred to Transport for London certain roads in London, was only to transfer the surface of the highway and sufficient sub-soil (normally called the two top spits) as is necessary for the maintenance of the surface, or whether it was to transfer to TfL the entire interest held by the council in the land on which the highway ran.

The Supreme Court unanimously allowed the appeal, finding that the entire interest had been transferred to TfL. The Court held that the word “highway” has no single meaning in the law. The Court considered the Baird principle which provided that a transfer of highway interests was limited to the road surface, the subsoil immediately beneath it and airspace sufficient to enable use and enjoyment by the public and maintenance by the highway authority. However the Court decided that the Baird principle did not apply to article 2 of the Transfer Order or to the Highways Act 1980,  s 265, upon which article 2 was modelled. In conclusion, the Supreme Court disagreed with the Court of Appeal’s reasoning that the word “highway”, used in article 2 and s 265, has a clear common law meaning, and took an approach which largely avoided irrational types of multi-layering on the vertical plane in the sense of different highway authorities owning parts of the vertical plane in the same highway.

For judgment, please download: [2018] UKSC 63
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (24 Oct 2018 morning session) (24 Oct 2018 afternoon session) (25 Oct 2018 morning session)