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In the recent case of KBC Developments LLP v Wavin Limited [2023] EWHC 153 (Ch) the Court held that (i) land can be adopted under a section 38 highway agreement ("S38 agreement"), even when physical works have not been carried out on it and (ii) in relation to the 'vertical plane' in the planning context, a 'zone of ordinary use' is sufficient to include as much of the airspace above as well as the land under the highway surface to allow for construction of, in this case, a railway bridge.
The case is important to developers and landowners, particularly where they are dealing with adjoining land that is later to be connected to a highway adopted under a S38 agreement, because this could impact any creation of valuable ransom strips on the land.
The case concerned a dispute over whether or not a specific strip of land adjoining Wavin’s (“W”) land and Network Rail’s (“NR”) land was a ransom strip (“the Strip”) or an adopted highway. The parties owned land on either side of a railway. KBC had planning permission (“the Planning Permission”) and NR’s consent to build a railway bridge to connect with the highway on W’s land.
W argued that the Strip was a ransom strip and was not adopted as a highway. In addition, the Strip was not subject to the Planning Permission and was beyond its ‘red line’ boundary. This part of W’s argument is referred to as the “horizontal plane argument.” W said that the terms of the S38 agreement meant that the area adopted was limited to the area subject to the planning permission and that the land adopted had to have a functional relationship with the constructed road.
W further argued that even if it were adopted, the extent of the airspace above it and the ground below it that formed the area that was adopted was not enough for a bridge to be built above the highway and in the soil below it (this is the “vertical plane argument”). W’s logic was that the area adopted would only relate to the “zone of ordinary use”, being the area of the footpath and the space in which it is used.
KBC contended that the Strip formed part of land that had been adopted as a public highway and that it was therefore entitled to build the railway bridge and connect it to the landowner’s land on the other side of the railway.
When considering the horizontal plane argument, the court looked at the S38 agreement and found its terms and plans showed a clear intention that a future road connection was required (via a bridge) and that the adoption plan showed the extent of the adopted area.
In terms of the second point of the S38 agreement limiting its effect to the area where physical work had been carried out pursuant to the planning permission, the court found there was no reason why the extent of works for which planning permission had been granted should dictate the extent of land adopted under a section 38 agreement. They also rejected that there necessarily had to be a ‘functional relationship’ between the land and the highway being adopted.
Dealing with the vertical plane argument, the court found that a “zone of ordinary use” was sufficient to include as much of the airspace above and as much of the land under the highway surface to enable the construction of the railway bridge (thereby applying the decision in Southwark).
Ultimately, the court granted the declaration sought by KBC that there was no gap between the adopted highway and the ownership boundary, and that the claimant was entitled to construct the bridge connection.
The case shows the importance of the terms of S38 agreements, as well as thereto-related plans, being clear and unambiguous, and demonstrates that such agreements are not limited in effect by a related planning permission. Ultimately, whether land has been adopted will depend on the true construction of S38 agreements. Plans must identify the adopted area clearly (and it is advisable to include wording on any such plans to show such intention).
Further, it means that large areas of airspace above and below a highway surface may be vested in the highway authority, so far as it is required to enable the construction of, for example, a bridge (in accordance with the ruling in Southwark).
The case is important for landowners and developers (as well as local authorities) where adjoining land may later require a connection to a highway which has been adopted under a S38 agreement, especially when considering the importance of avoiding the creation of a potentially valuable ransom strip.
Adopted highways are not confined to areas where physical works are carried out, but may include other things such as amenity areas, verges or even part of land adopted with a view to a future connection being built.
