The Practical Lawyer


‘Highway’ – no single meaning

The SC has recently clarified the meaning of a highway.

Prior to the case, the definition of highway seemed to be settled to mean ‘the top two spits of the land’ together with so much of the subsoil as is necessary for support (a spit being a layer of earth whose depth is equal to the length of the blade of a spade). Put simply, the highway was thus the road surface and a supporting layer of ground.

The CA suggested that this general rule of interpretation represented good law (unless the contrary is indicated). However, the SC rejected this analysis in favour of a contextual approach so that highway does not have a fixed meaning whenever it is used. In addition, the terminology has changed from top two spits to the more flexible zone of ordinary use.

The case was a dispute between two London authorities as to the meaning of highway and whether the freehold had been transferred to TfL following a Transfer Order. The CA held that only the top two spits had been transferred to TfL.

The SC reversed this decision. The SC recognised that in the urban environment of a big city the notion of the top two spits will rarely ever be adequate and should be dropped in favour of a more comprehensive and flexible term. To that end the court adopted zone of ordinary use which reflects the fact that ordinary use may vary from place to place and from time to time.

This means that there is more than one definition of highway and the context is likely to affect that definition. This was simply put by Lord Briggs in the SC as follows:

‘It is common ground that the zone of ordinary use is a flexible concept, the application of which may lead to different depths of subsoil and height of airspace being vested in a highway authority, both as between highways and even, over time, as affects a particular highway, according to differences or changes in the nature and intensity of its public use. A simple footpath or bridleway might only require shallow foundations, and airspace of up to about ten feet, to accommodate someone riding a horse. By contrast a busy London street might require deep foundations to support intensive use, and airspace sufficient to accommodate double-decker buses and even the overhead electric power cables needed, in the past, by trolleybuses and now, by urban trams.’

Source: [2019] 370 Property Law Journal 7 and see Southwark v TFL [2018] UKSC 63.


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