Case No: A3/2015/4278
Neutral Citation Number: [2017] EWCA Civ 1220
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr JUSTICE MANN
HC-2015-000260
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 4 August 2017
Before:

LORD JUSTICE McFARLANE
LORD JUSTICE McCOMBE
and
LORD JUSTICE DAVID RICHARDS

- - - - - - - - - - - - - - - - - - - - -

Between:

	(1) THE LONDON BOROUGH OF SOUTHWARK
(2) THE CITY OF LONDON	Appellants	
	- and -		
	TRANSPORT FOR LONDON	Respondent	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

David Elvin QC and Richard Moules (instructed by Dentons UKMEA LLP) for the Appellants
Timothy Morshead QC and Charles Banner (instructed by Wragge Lawrence Graham & Co LLP) for the Respondent

Hearing dates: 1-2 March 2017

- - - - - - - - - - - - - - - - - - - - -

Judgment
LORD JUSTICE DAVID RICHARDS: 
Introduction
1.	When the Greater London Authority was created, it assumed responsibility for certain highways in the Greater London area. To this end, Transport for London (TfL), a body responsible to the Mayor of London, was made the highway authority for highways designated by the Secretary of State as “GLA roads”. In order to give effect to this, the Secretary of State by statutory instrument transferred from the council of the relevant London borough to TfL “in relation to each GLA road … the highway, in so far as it is vested in the former highway authority”. 
2.	The issue on this appeal is whether the effect of that provision was to transfer to TfL the entire interest of the relevant council in the land on which the highway ran (in so far as not already appropriated to some other use) or only the surface of the highway and sufficient sub-soil (normally called the two top spits) as is necessary for the maintenance of the surface.  
3.	The issue arises in disputes between TfL and each of the London Borough of Southwark and the City of London Corporation concerning the property rights acquired by TfL in connection with GLA roads situated in those two local authority areas. I will call the local authorities “the Councils”.
4.	These disputes were referred to arbitration under article 8 of the GLA Roads and Side Roads (Transfer of Property etc.) Order 2000 (SI 2000 No 1552) (the Transfer Order). Mr John Male QC was appointed arbitrator and he directed this and other issues to be tried as preliminary issues with a single hearing in both arbitrations. By an award dated 27 November 2014, he determined, in short, that the effect of the provision in issue was to transfer the entire interest of the local authority concerned (subject to such parts as had been appropriated to other uses) to TfL.
5.	The Councils appealed under the Arbitration Act 1996 to the High Court. The appeal was heard by Mann J, who dismissed the appeal. The appeal to this court is made with permission granted by the judge.     
The statutory framework
6.	The Greater London Authority (the GLA) was established by the Greater London Authority Act 1999 (the GLA Act). It provided for a directly-elected Mayor of London and the elected London Assembly. It also established TfL as a body directly accountable to the Mayor or a chairman appointed by the Mayor. TfL was to be responsible, among other things, for the road maintenance and traffic management of the most important roads in London, designated as GLA roads. To this end, section 259 provides that TfL is to be the highway authority for GLA roads.
7.	The principal statute governing highways is the Highways Act 1980 (the 1980 Act). 
8.	Section 1 of the 1980 Act makes provision for highway authorities. Responsibility for highways is divided among a variety of authorities, depending on the importance of the highway. The Secretary of State is the highway authority for trunk roads and certain other roads. Outside Greater London, the council of a county or metropolitan district is the highway authority for all other roads in the county or district. The GLA Act added section 1(2A), making TfL the highway authority for all GLA roads. The council of a London borough or the Common Council of the City of London is the highway authority for all other highways in the borough or in the City (as the case may be).
9.	To give effect to the highway provisions in the GLA Act, sections 260 to 266 of that Act introduced sections 14A to 14D into the 1980 Act as a group under the heading “GLA roads”. By section 14A, the Secretary of State was empowered to designate by statutory instrument “highways or proposed highways as highways which are to be GLA roads”. Section 14B requires the Mayor to “keep under review the system of highways and proposed highways in Greater London” and the allocation of responsibilities for them among the different local highway authorities. The GLA may by order direct that a highway or proposed highway shall become or cease to be a GLA road. Section 14D provides for the definition of a GLA road as any highway or proposed highway which is for the time being a GLA road. 
10.	It is convenient here to refer to other provisions of the 1980 Act which are material to the issue of construction on this appeal.
11.	Section 263(1) provides that “every highway maintainable at the public expense, together with the materials and scrapings of it, vests in the authority who are for the time being the highway authority for the highway”. This provision, which has a continuing effect, provides for the automatic vesting of highways maintainable at public expense, subject to certain exceptions.
12.	Section 265 provides for the transfer of property and liabilities upon a highway becoming or ceasing to be a highway. It is of particular relevance because it is apparent that it served as the model for the transfer provisions for GLA roads in issue in this case. Section 265(1) and (3) provide:
“(1)  Where a highway becomes a trunk road, then, subject to the provisions of this section, as from the date on which the highway becomes a trunk road (“the operative date”), there are transferred to the Minister by virtue of this section –
(a)  the highway, in so far as, immediately before the operation date, it was vested in the former highway authority,
(b)  the property mentioned in subsection (3) below, in so far as, immediately before the operative date, it was vested –
(i)  in the former highway authority for the purposes of their functions in relation to the highway, or
(ii) in a council for the purposes of functions in relation to the highway under any enactment to which this section applies, and
(c)  all liabilities incurred by any such authority or council for the purposes of their functions in relation to the highway and not discharged before the operative date, other than loans and loan charges, and the highway and other property so transferred vest, by virtue of this section, in the Minister.
(2) …
(3)  the property referred to in subsection (1)(b) above is –
(a) land, other than land –
(i) vested in the former highway authority for the purpose of being used for the storage of materials required wholly or mainly for the maintenance and improvement of other highways, or
(ii) acquired for the improvement or development of frontages to the highway, or of land adjoining or adjacent to the highway, and
(b)  all other property (including the unexpended balances of any grants paid by the Minister to the former highway authority, or to any council for the purposes of their functions in relation to the highway), other than –

(i)  materials to be used for the maintenance or improvement of the highway, and
(ii) the unexpended balances of any loans raised by the former highway authority, or by any council for the purposes of their functions in relation to the highway.”
13.	Section 265(7) provides that these provisions are to apply in like manner when a highway ceases to be a trunk road.
14.	Section 266A was introduced by the GLA Act to provide for the transfer of property and liabilities upon a highway becoming or ceasing to be a GLA road by reason of an order made by the GLA under section 14B(2). It does not apply to the designation of a GLA road by the Secretary of State under section 14A, but it is relevant to the arguments on the issue in this case. Section 266A(2) and (4) provide:
“(2) As from the operative date there are transferred to the new highway authority by virtue of this section –
(a) the property mentioned in subsection (4) below, in so far as, immediately before the operative date, it was vested in the former highway authority for the purposes of their functions in relation to the transferred highway, and
(b) all liabilities incurred by any such authority for the purposes of its functions in relation to the transferred highway and not discharged before the operative date, other than loans and loan charges, and the property and liabilities so transferred best, by virtue of this section, in the new highway authority.
(3) …
(4)  The property referred to in subsection (2)(a) above is –
(a)  land, other than land – 
(i)  vested in the former highway authority for the purpose of being used for the storage of materials required wholly or mainly for the maintenance and improvement of other highways, or

(ii) acquired for the improvement or development of frontages to the highway, or of land adjoining or adjacent to the highway, and
(b)  all other property (including unexpended balances of any grants paid by the Minister to the former highway authority), other than –
(i)  materials to be used for the maintenance or improvement of the highway, and
(ii) the unexpended balances of any loans raised by the former highway authority.”
15.	The 1980 Act does not contain a comprehensive definition of “highway”. Section 328(1) leaves the meaning of “highway” at large but provides: 
“In this Act, except where the context otherwise requires, “highway” means the whole or a part of a highway other than a ferry or waterway.”
16.	Pursuant to section 14A of the 1980 Act, the Secretary of State made The GLA Roads Designation Order 2000 (SI 2000 No. 1117) which came into force on 22 May 2000. Article 2 provided that the highways specified in the schedule to the Order “are hereby designated as GLA roads”, with effect from 3 July 2000.
17.	The GLA Act, by sections 406 and 408, empowered a Minister of the Crown by order to make incidental and consequential provisions, and provision for or in connection with the transfer of property, rights and liabilities from, among others, any London borough council or the Common Council to, among others, any functional body or any subsidiary of TfL. 
18.	In exercise of the powers conferred by sections 406 and 408 and other sections, the Secretary of State made the Transfer Order, which gives rise to the issue on this appeal.
19.	The appeal concerns the effect of article 2(1) which provides:
“Subject to paragraph (2) and article 4 below, on the operative date there are hereby transferred to Transport for London in relation to each GLA road – 
(a) the highway, in so far as it is vested in the former highway authority;
(b) the property mentioned in paragraph (3) in so far as, on the designation date, it was vested—
(i)  in the former highway authority for the purposes of their highway functions in relation to the GLA road, or
(ii) in the former highway authority for the purposes of functions in relation to the GLA road under sections 6 (traffic regulation), 9 (experimental traffic orders), 23 and 24 (pedestrian crossings) and 85 (speed restriction signs) of the Road Traffic Regulation Act 1984 
(c) all liabilities incurred by a former highway authority for the purposes of their functions in relation to the GLA road and not discharged before the operative date, other than loans and loan charges.
  
20.	Article 2(3) provides:
“The property referred to in paragraph (1)(b) is -
(a)  land, other than land—
(i)  vested in the former highway authority for the purpose of being used for the storage of materials required wholly or mainly for the maintenance and improvement of other highways; or
(ii) where the former highway authority is a relevant authority, held by that authority for the improvement or development of frontages to the highway, or of land adjoining or adjacent to the highway; and
(b) all other property held in connection with the GLA road (including the unexpended balances of any grants paid by the Secretary of State to any relevant authority for the purposes of their functions in relation to the highway) other than materials to be used for the maintenance or improvement of the highway, and the unexpended balances of any loans raised by the former highway authority, or by any relevant authority for the purposes of its functions in relation to the highway.”
21.	Article 1(2) contains definitions. “The former highway authority” means the Secretary of State in relation to GLA roads that are trunk roads and the relevant borough council or the Common Council in relation to other GLA roads. “GLA road” means “a highway designated as a GLA road under section 14A” of the 1980 Act. “Land” includes “any interest or right in, over or under land”.
Meaning of highway
22.	There is no statutory definition of “highway” either in the 1980 Act, save for the very limited provision in section 328 quoted above, or in the GLA Act. It is therefore necessary to have regard to its meaning at common law. The commentary on section 328 in the Encyclopaedia of Highways Law and Practice says at para 2-484.2:
“This section does not define the term “highway” and it is necessary therefore, whenever the meaning of this word is in issue, to refer to the common law rules.  Stated shortly, a highway may be defined as a way over which all members of the public have the right to pass and repass.  Their use of the way must be as of right, not on sufferance or by licence.”
23.	Bennion on Statutory Interpretation (6th ed) at pp 1074-1075 gives “highway” as an example of a “free-standing term” at common law, so that “unless the contrary intention appears, Parliament is taken, when using a free-standing legal term, to intend that its meaning in the enactment shall correspond to the legal meaning assigned to it generally.” This was the view taken in the Explanatory Notes published with the GLA Act which stated at para 376 that there was no comprehensive statutory definition of a highway “because the concept of a highway long pre-dates highways legislation. Under common law, a highway may be broadly defined as a way over which all members of the public have the right to pass and repass.”
24.	The meaning of a highway and the extent of property included in a highway has been considered in several authorities since the mid-19th century. The historical background and the restrictive approach of the courts to the extent of property comprised in a highway is well explained in Sauvain: Highway Law (5th ed. 2013) at 3-05 and 3-08: 
“All highways that were in existence prior to the passing of the Highways Act 1835 were maintainable by some body or person.  Prima facie, the parish would be responsible for repair unless they could prove that some other person or body had repaired the road by reason of tenure of land, by prescription or by virtue of enclosure of land.  However, while the common law enforced the duty of the parish to repair, the question as to whether any legal interest in the highway had passed to the parish did not arise.  The obligation to repair fell upon the inhabitants at large of the parish and such an unincorporated body of persons could not hold any interest in land.  Furthermore, in their consideration of the extent of the rights of the landowner, as against the rights of the public to travel over the land, the courts took the view that the landowner’s interest in the highway remained intact subject only to the right of passage of the public…
When the courts were first called upon to analyse the nature of the interest vested by statute in the highway authority, they found themselves dealing with an unusual species of property right.  The interest was created by statute and appeared to take away, without compensation, part of the interest of the land owner that had previously been regarded as being intact – subject only to highway rights over it.  The courts were likely, therefore, to take a narrow view of the extent of the highway authority’s acquired interest.”
25.	We were referred to a number of these authorities. The Mayor etc of Tunbridge Wells v Baird [1896] AC 434 was a decision of the House of Lords. The Public Health Act 1875 had, by section 149, vested in the local authority “all streets, being or which at any time become highways repairable by the inhabitants at large within any urban district…” The appellant local authority constructed public lavatories beneath a street that had vested in it by virtue of section 149. The respondents were the successors in title to the street in question and they brought proceedings for a declaration and mandatory injunction in respect of these construction works on the grounds that they remained the owners of the land below the street. They succeeded in the Court of Appeal and the House of Lords. Lord Halsbury LC said at 437-438:
“My Lords, I really am hardly able to follow the reasoning which suggests that a right of property in the subsoil, to the extent and degree to which it has here been taken possession of, has passed under any Act of Parliament whatever.  Whatever may be the true construction of the word “street” – and many observations might be made about the mode in which the word “street” is defined – it appears to me that in no sense have these structures been placed in the “street”.  The word certainly would be very inappropriate in ordinary parlance to describe a subterranean excavation made with the conveniences described.  Mr Lords, for my own part, I am disposed to adopt every word of what James L.J. said in the passage that has been quoted as to the true effect and meaning of the vesting of a “street” in a local body.  That the street should be vested in them as well as under their control may be, I suppose, explained by the idea that, as James L.J. points out, it was necessary to give, in a certain sense, a right of property in order to give efficient control over the street.  It was thought convenient, I presume, that there should be something more than a mere easement conferred upon the local authority, so that the complete vindication of the rights of the public should be preserved by the local authority; and, therefore, there was given to them an actual property in the street and in the materials thereof.  The same section that vests the street in them vests also the materials, the actual personal property provided for the purpose of repair, and so forth.  It is intelligible enough that Parliament should have vested the street quâ street, and, indeed, so much of the actual soil of the street as might be necessary for the purpose of preserving and maintaining and using it as a street.”
26.	Lord Herschell summarised the position at p. 442:
“My Lords, it seems to me that the vesting of the street vests in the urban authority such property and such property only as is necessary for the control, protection, and maintenance of the street as a highway for public use.” 
27.	In Vestry of St Mary, Battersea v County of London [1899] 1 Ch 474, the Court of Appeal was concerned with the effect of section 96 of the Metropolis Management Act 1855 by which “all streets being highways….shall vest in and be under the control of the vestry or district board of the parish or district in which such highways are situate”. The vestry sought a mandatory injunction requiring an electric lighting company to remove pipes and wires which it had laid two feet below the surface. This court held that the vestry was not entitled to this relief because, applying the authority of Tunbridge Wells v Baird, the street vested in the vestry carried with it only so much of the soil under this street as was, in the words of Lord Herschell, “necessary for the control, protection, and maintenance of the street as a highway for public use”.
28.	The submissions of the local authority in a further case in the Court of Appeal, Finchley Electric Light Co v Finchley UDC [1903] 1 Ch 437, find an echo in the present case. Like Tunbridge Wells v Baird, it concerned the effect of section 149 of the Public Health Act 1875. The plaintiff electricity company had suspended wires 34 feet above Regent’s Park Road, which the defendant local authority had cut and it threatened to cut any other wires over the streets in its district. The road had been vested in the local authority by operation of section 149, prior to which it was owned by turnpike trustees. The trustees had acquired the full freehold interest in the land, on which they then built the road, under the Turnpike Roads Act 1822. It was argued by the local authority that as the trustees had owned the entire freehold interest for the purpose of the road, it was the entire freehold interest that vested in it under section 149. The local authority’s case was rejected. 
29.	In his judgment, Collins MR said at p.440:
“It has been decided by a long series of cases that the word “vest” means that the local authority do actually become the owners of the street to this extent: they become the owners of so much of the air above and of the soil below as is necessary to the ordinary user of the street as a street, and of no more.  For example, they do not take that part of the subsoil which has to be used for the purpose of laying sewers.”
30.	Dealing with the local authority’s submission, the Master of the Rolls said at p.442:
“It seems to me that the standard which determines this question is, not how much the owner has to give, but how much the local authority under the Public Health Act have the right to take.”
31.	The issue before the Court of Appeal in Tithe Redemption Commission v Runcorn UDC [1954] Ch 383 was, essentially, the effect of the 1925 property legislation on the property in a highway vested in a public authority. The issue was whether the defendant local authority was liable to contribute to the payment of a tithe redemption annuity under the Tithe Act 1936. This in turn depended on whether the local authority held a legal estate in fee simple in the highway vested in it by section 29(2) of the Local Government Act 1929. This court, affirming Danckwerts J, held that it did. Sir Raymond Evershed MR said at p. 398 that a vesting under the statute operated “to confer upon the highway authority in respect of some part of the land, which although indefinite in extent included the essential surface (that is, essential for the purpose of tithe, tithe rentcharges and the Tithe Redemption Act), a legal estate known to the law…” determinable on the land ceasing to be used as a highway.
32.	In his short concurring judgment, Denning LJ said in a celebrated passage: 
“The statute of 1929 vested in the local authority the top spit, or, perhaps, I should say, the top two spits, of the road for a legal estate in fee simple determinable in the event of its ceasing to be a public highway.”
33.	These and other authorities represent a formidable body of authority that when legislation vests in a highway authority a “highway” or a “road” or a “street” for the purpose of its maintenance as a public highway, the authority does not become the owner of the freehold interest in the entirety of the land on which the highway runs but only of the surface and such part of the sub-soil (“two spits”) as is necessary for the maintenance of the highway. That is the common law meaning of a highway. But, as Mr Morshead for TfL emphasised, the meaning of the word in any particular legislation must always be determined having regard to its statutory context.
The arbitrator’s award
34.	The award dealt with three preliminary issues: limitation, the extent of TfL’s vertical title and the extent of TfL’s horizontal title. This appeal is concerned only with the extent of its vertical title.
35.	As Mann J agreed with the conclusion reached by the arbitrator on this issue, it is sufficient for this appeal to concentrate on the reasons given by Mann J, but the arbitrator’s reasons can be found summarised in Mann J’s judgment at [19].
The judgment of Mann J
36.	The judge summarised the submissions of Mr Elvin for the Councils at [29] – [33]. Before the judge, as before us, Mr Elvin relied on the generally understood meaning of “highway” derived from the cases cited above. He submitted that it should be given the same meaning in the Transfer Order as it bears in the 1980 Act. He relied in particular on sections 263 and 265 of the 1980 Act. Given the similarity of wording between section 265 and the article 2 of the Transfer Order, consistency required they be given the same meaning. Pulling all his points together, Mr Elvin submitted that the case demonstrated a degree of consistency as to what vested in highway authorities.
37.	Mann J rejected these submissions. The authorities did not demonstrate what “highway” meant in the 1980 Act, particularly in sections 263 and 265. He said at [35]: “the interpretation point that arises in this appeal has to be decided with the above principles of highway law as part of the background, but not as factors going directly to the meaning of ‘highway’”.
38.	The judge said at [36] that he preferred to start with a consideration of the apparent purpose of the legislation. Before it took effect, the titles held by the London boroughs and the Common Council to what became GLA roads were far from uniform. In some cases, they held the freehold title to the whole of the land and in others to part only, for example the surface and the necessary sub-soil. In other cases, part of the freehold may have been appropriated to other purposes and so had ceased to be held for highway purposes (and was therefore outside the ambit of the Transfer Order); an example was “a shooting gallery which apparently exists under the approach to Blackfriars Bridge”.
39.	At [37] the judge identified an overall pattern in the various elements of the reorganisation brought about by the designation of GLA roads and their vesting in TfL. He said:
“I then consider the reorganisation as a whole against the background of those different sorts of holdings.  The scheme has three relevant elements.  First, the recategorisation of roads as GLA roads by the Designation Order.  Second, there is making TfL highway authority for the GLA roads – section 1(2A) of the 1980 Act (added by amendment) achieves that.  Third, there is the vesting of property by the vesting order.  I think that one can detect an overall pattern from this structure.  That pattern is that TfL stepped into the shoes of the local authorities so far as the highways were concerned.  That is obviously the case in a situation where the local authorities had hitherto held just the surface and no more – there is no real dispute about that.  But in my view it is also the case where the highway authority held more than that, pursuant to its highway functions.  At this level one cannot detect any level of refinement about the process.  The object was to move roads and functions.  The roads are described in the designation order in a broad brush way.  The functions are transferred by re-designation of the highway authority.  And the vesting order transfers land pursuant to that general overall scheme.  In using the words in Article 2(1)(a) “insofar as it is vested in the highway authority” I consider that Parliament was not only intending to convey the “nemo dat quod non habet” concept, but was also giving an indication that it was intending to vest land held qua highway authority, whether the surface or a wider holding.”
40.	The judge observed at [38] that if the Councils were right:
“… there would be the potential for a series of split holdings – TfL would get the surface, and the land below and the air above (or the air above a certain height) would remain vested in the local authority in question, notwithstanding that it originally held those planes as highway authority.  It is not easy to divine any good reason why that should have been Parliament’s, or the draftsman’s, intention.  I acknowledge, of course, that there remains the possibility of this sort of split holding where the highway authority may not hold the entire land qua highway authority, but that does no more than reflect the sort of situation which exists in dedication cases like Bayliss.  It does not mean that Parliament intended to create the potential for “layering” on as wide a scale as Mr Elvin’s submissions would give rise to.  Mr Elvin identified the purpose of the vesting order as being to enable the vesting of GLA roads so as to enable it to carry out its functions as highway authority, and that did not require more than the surface to vest in it.  If one identifies that as the narrow purpose, and then applies a narrow view of what that requires, then Mr Elvin might well be right.  However, I consider that it misidentifies the purpose, and is too narrow a view.  The “layering” it would give rise to points against it.”
41.	The judge considered at [39] that this produced “a state of affairs which is consistent with the remainder of Article 2 in achieving a sensible scheme”. Article 2 confined the vesting to property which is related to a GLA road. The elements were the “highway” and other “land” held for the purposes of highway functions relating to that road, but land at the edges is excluded if intended for improving frontages or adjoining land (article 2(3)(a)(ii)). The judge continued: “Thus ‘highway’ is used not to indicate some rather artificial vertical limits to the vesting, but to describe the “road” bits rather than the “ancillary” bits.” It would be anomalous if only the surface of a GLA road vested in TfL when, as was the case, the entire freehold interest in ancillary land held by a council did vest in TfL. 
42.	Mann J rejected the Councils’ submission that the purpose of the Transfer Order, stated in the Order as being (inter alia) “to make provision for transport and road traffic in and around Greater London”, required the vesting only of the surface. While agreeing that provision for transport and road traffic was a purpose of the Transfer Order, he considered that “the more likely intention, in order to achieve that, was to vest the entirety of the freehold where the highway authority holds it as highway authority, rather than slicing it up as Mr Elvin suggests.”
43.	The judge also rejected a submission based on the different situation that would arise if a road were subsequently designated a GLA road by the Mayor under section 14B. In that case, for reasons to which I will return, only the surface of the road would vest in TfL. While agreeing that this inconsistency was present in the legislative scheme, “it is not determinative, and is no more than an indication of the intention of Parliament”. The judge did not think that in area “riddled with complicated interlocking (or perhaps not quite interlocking) statutory provisions” this factor was of much weight when placed against the purposive considerations on which he relied. 
Discussion
44.	In broad terms, Mr Elvin for the Councils made before us the same submissions as he had advanced before Mann J. Mr Morshead for TfL supports the decision of Mann J for the reasons he gave in his judgment.
45.	The starting point is article 2 of the Transfer Order. Article 2(1) provides that on the operative date “there are hereby transferred to [TfL] in relation to each GLA road (a) the highway, in so far as it is vested in the former highway authority; (b) the property mentioned in paragraph (3)”, i.e. land vested in the former highway authority for specified highway purposes and subject to the exceptions stated in article 2(3).
46.	The use of the word “highway” in article 2(1)(a) is significant. The authorities to which I have earlier referred have established its common law meaning as the surface and the sub-soil necessary to its use as a highway (‘the top two spits”). The transfer, “in relation to each GLA road”, of “the highway” suggests that the intention was to transfer no more than that. Given the long-established and restricted common law meaning, it is an odd choice of word if the intention was to transfer the full legal title held by the former highway authority. The GLA Act, pursuant to which the Transfer Order was made, amended the 1980 Act to introduce provisions necessary to give effect to the policy of transferring GLA roads and responsibility for them to TfL as a new highway authority. Those new sections repeatedly use the word “highway” without introducing any definition to give it a specific, and wider, meaning. The term is, of course, central to the 1980 Act and there is no suggestion that in those generally applicable sections concerned with the vesting of highways, such as sections 263 and 265, it carries anything other than its common law meaning.
47.	There are specific considerations that support the view that “highway” in article 2(1) is intended to carry its ordinary legal meaning. 
48.	First, while article 2(1)(a) refers to “the highway”, article 2(1)(b) refers to “the property mentioned in paragraph (3) which is “land”. The distinction between “highway” and “land” is that, conventionally, the latter does refer to the full legal title of the transferor. This point was made by Lord Millett in the Privy Council case of Blanchfield v Attorney General of Trinidad and Tobago [2002] UKPC 1. Having referred to a number of the cases on highways, including some of those which I have cited, Lord Millett said at [17]: “What all these cases have in common is that the statute in question did not say that “the land” should vest in the highway or other authority but that “the street” should do so”. After more detailed reference to those authorities, Lord Millett said at [20]:
“But all this depends on the fact that what the relevant statute vests in the authority is a "street" and not "land". The Land Acquisition Ordinances of Trinidad and Tobago, however, authorise the compulsory acquisition of "land", and under both Ordinances publication of the statutory notice had the effect of vesting in the Crown the "land" described in the notice. In their Lordships' opinion this means the physical land and the totality of the estates and interests therein. Once the land had vested in the Crown and the owners had been compensated for their respective estates and interests, there was no reversionary or other interest left outstanding.”
49.	Second, there is the difference, accepted by the judge, between the effect of a transfer under article 2 of the Transfer Order made by the Secretary of State and a transfer made by the Mayor under section 14B of the 1980 Act, if TfL is right. The effect of the latter transfer is set out in section 266A, also added by the GLA Act. Section 266A(2) and (4) contain the same provisions for the transfer of ancillary land as article 2(1)(b) and (3), but it contains no equivalent to article 2(1)(a), transferring the highway to TfL. In that case, TfL must rely on section 263, which provides for the automatic vesting of every highway maintainable at public expense in the highway authority for the time being. It is accepted that section 263 vests only the surface and necessary sub-soil in the highway authority. Mann J viewed this as an inconsistency that did not outweigh what he considered to be the more purposive construction of article 2. I accept that it is not decisive but it is, in my view, significant. If the purpose of the new arrangements was best served by a construction of article 2 that resulted in the Councils’ full legal title being transferred to TfL, why would that purpose not also require the same result of a transfer made under section 14B? Rather than simply being an unexplained inconsistency, it seems to me a powerful pointer to the effect of a transfer under article 2 being the same as a transfer under section 14B, achieved in both cases by the use of the word “highway” in the operative provision (being article 2(1)(a) and section 263(1) respectively).
50.	Section 266A results in a further difficulty with the construction of article 2 advanced by TfL. As well as enabling the GLA to designate a highway as a GLA road, it empowers the GLA to de-classify a GLA road, In that event, there will be vested in, or transferred back to, the relevant council the surface and immediate sub-soil of the highway under section 263 and the ancillary land under section 366A(2). But there is no provision for transferring back to that council the rest of its former title to the highway land, which (unless agreed otherwise) will remain vested in TfL. This too suggests that the intention is to transfer no more than the “highway” as conventionally understood.  
51.	Third, as noted above, the terms of article 2 appear to be modelled on section 265. In construing the meaning of “highway” in section 265(1)(a), Mr Elvin relied on the judgment of Mr Kim Lewison QC (as he then was) in Secretary of State for the Environment v Baylis (2000) 80 P&CR 324. At p.335, Mr Lewison QC said:
“The effect of “trunking” a highway is that the highway vests in the Minister (now the Secretary of State) [by virtue of section 265]. The extent of the vesting is such part of the land as is necessary for the highway authority to perform its statutory functions. It has been described as the “two top spits”.”
52.	In a careful analysis of this decision, Mann J demonstrated that as the interest of the former highway authority extended only to the surface and necessary sub-soil, only that limited interest could be transferred to the Secretary of State by section 265 when the highway was designated a trunk road. Accordingly, the passage quoted above from the judgment was obiter, but it was nonetheless, in my view, a general statement of the effect of a transfer under section 265. Moreover, in my judgment, it was a correct statement. I see no good reason why the same word, “highway’, should carry different meanings in sections 263 and 265. Against the background of the well-established common law meaning, it would be extraordinary for the draftsman to use the same word in both sections without any indication that they were intended to carry very different meanings. No convincing reason was suggested why they should carry different meanings. 
53.	Fourth, section 14D of the 1980 Act, added by the GLA Act, provides that “[a]ny reference in any provision of this Act or any other enactment to a GLA road shall be construed as a reference to a highway or proposed highway in Greater London which is for the time being a GLA road” (emphasis added). There is no suggestion here of “highway” carrying anything other than its ordinary common law meaning.
54.	Mann J declared his hand early in his judgment. Referring to the Transfer Order at [28], he said that there was, in his view “a strong sense of an intention to vest everything that the local authority had qua highway authority, whatever that was.” At [37] he said that the overall pattern to be deduced from the legislative structure of the provisions relating to GLA roads was that “TfL stepped into the shoes of the local authorities so far as highways were concerned”. This meant that, if a local authority owned the freehold interest in the land on which a highway stood, that freehold interest was transferred to TfL.                                                   
55.	The difficulty I find with this approach is that it attaches little or no weight to the words chosen, deliberately one is entitled to assume, in these provisions. In particular, it regards as virtually irrelevant the repeated use of “highway”. If the intention was as the judge considered, it could with no difficulty have been spelt out. As Lord Halsbury LC said in Tunbridge Wells v Baird at p. 438, “if the complete vesting of the whole of the property in the land over which the public had rights or duties of repair were intended to be given, there would be no reason in the world why the Legislature should not have said so…”. Rather than spelling it out, the draftsman has chosen to use a term that generally carries a meaning at odds with the policy identified by the judge. I am unable to accept that the words in article 2(1)(a) “in so far as it is vested in the former highway authority” were any more than words of identification. It is telling that the same formula is used in section 265(1)(a), the predecessor to which was considered in Baylis. I do not think they are capable of bearing the weight put on them by the judge and of showing an intention “to vest land qua highway authority, whether the surface or a wider holding”, particularly when the draftsman has used the word “land” in sub-paragraph (b) in contrast to “highway” in sub-paragraph (a). 
56.	The judge also attached significance to the potential for a series of split holdings if the Councils were right. In the case of a highway on freehold land owned by a council, TfL would receive the surface and necessary sub-soil but the council would retain the rest of the land below the sub-soil and the air above the highway. But that does no more than describe an already common situation, as the judge recognised (see paragraph [36] of his judgment). There are in fact cases of GLA roads where the ownership interest of the council before the Transfer Order took effect was split along the same road. In some stretches of the road the council owned the full freehold interest to the land and in other stretches it owned only the surface and immediate sub-soil. The construction of the Transfer Order favoured by the judge would not produce a consistent pattern of ownership of GLA roads. A further complication, acknowledged by the judge, is where part of the land has been appropriated to other purposes, the shooting gallery near Blackfriars Bridge being the memorable example. The layers of ownership in such situations would continue, even if TfL were right.
57.	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. 
58.	I would therefore allow the appeal. 
Lord Justice McCombe:
59.	I agree.
Lord Justice McFarlane:
60.	I also agree.