You might wonder why a Court of Appeal case about interpretation of a statutory instrument about highways should be setting warning lights flashing for developers. What is interesting about the case of The London Borough of Southwark and the City of London v Transport for London, recently reported, is that, in making the age old distinction between highways and land ownership, it has opened up the possibility of problems for those whose buildings project, or, probably more worryingly, are planned to project over the public highway.
So, a canopy, balcony or bridging building, for example. There are procedures for obtaining projection licences. But in London, and for what are known as "GLA Roads" at least, according to this case, there are now two authorities to deal with - TfL so far as the highway is concerned, and then the London Borough who remains owner of the land, heaven to hell, who will not be constrained by any pubic law restrictions, and who can be as capricious as any other landowner - Stokes v Cambridge, anyone?
"In my judgment, the Councils are right in their identification of the purpose of these provisions. The purpose was that TfL should be the highway authority for the GLA roads. As with any highway authority, all that is needed to achieve that end is to vest the surface and necessary sub-soil in TfL. No adequate explanation has been provided by TfL as to why the residents and ratepayers of the Councils should be deprived, without compensation, of more property than is necessary to fulfil that purpose – essentially the same point as underpinned many of the cases from the mid-19th century onwards."