Supreme Court to hear row between TfL and councils over highways

The Supreme Court will next week hear a dispute between two London councils and Transport of London (TfL) over the transfer of highways in the capital.

At issue in London Borough of Southwark and another v Transport for London UKSC 2017/0160 is whether the effect of a Transfer Order, which transferred to TfL 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 councils in the land on which the highway ran.

The background to the case is that the Greater London Authority Act 1999, which established TfL as the body responsible for roads designated as Greater London Authority roads ("GLA roads"), provides that TfL is to be the highway authority for GLA roads.

In order to give effect to this, the Secretary of State by statutory instrument ("the Transfer Order") transferred from the council of the relevant London boroughs to TfL "in relation to each GLA road … the highway, in so far as it is vested in the former highway authority".

The dispute between TfL and the respondent councils concerned the extent in the vertical plane of the interest which passed to TfL with the highways transferred to it under the scheme, i.e. whether it only transfers the surface of the highway and sufficient sub-soil as is necessary for the maintenance of the surface, or whether it transfers to TfL the entire interest in the land on which the highway ran.

An arbitrator determined that the effect of the Transfer Order was to transfer the entire interest of the local authority concerned (subject to such parts as had been appropriated to other uses) to TfL.

The respondent councils appealed unsuccessfully against the arbitration to the High Court. The Court of Appeal allowed the councils’ appeal. TfL appealed to the Supreme Court.

The case will be heard on 24-25 October by a five-justice panel comprising Lady Hale, Lord Reed, Lord Carnwath, Lord Lloyd-Jones and Lord Briggs.