Nicholas Kossodo Weaver v Deborah Smith
[2023] EWHC 1200 (Ch)
KBC Developments LLP v Wavin Limited & Anor
31 January 2023
[2023] EWHC 153 (Ch)
High Court
A company needs a small piece of land to build a bridge. The owner says it's private land. The court decided the land is actually part of a public road, so the company can use it to build its bridge.
Key Facts
- •Dispute over a strip of land (Level Strip) between Wavin Ltd's property and Network Rail's land, needed for a bridge connection.
- •KBC Developments LLP (KBC) needs access to the Level Strip to build a bridge connecting its land to Parsonage Way.
- •Parsonage Way, including the Tarmac Hammerhead and Verge, is a public highway vested in Wiltshire Council.
- •Wavin claims the Level Strip is privately owned, forming a ‘ransom strip’.
- •Wavin also argues that even if public, the vertical plane adoption doesn't allow bridge construction.
- •KBC argues a 1992 conveyance gives it a contractual right to connect to Parsonage Way.
- •A 1990 planning permission and a 1992 s.38 agreement (for highway adoption) are central to the dispute.
Legal Principles
For a way to become a public highway, dedication by the landowner and acceptance by the public are needed.
Secretary of State for the Environment, Transport and the Regions v Baylis (Gloucester) Ltd (2000) 80 P&CR 324
Section 38 of the Highways Act 1980 provides a statutory mechanism for highway dedication and acceptance.
Highways Act 1980
Section 38 agreements can include areas beyond the road itself, such as verges or sightlines.
R (Redrow Homes Ltd) v Knowsley Metropolitan Borough Council [2014] EWCA Civ 1433
The extent of a highway adopted under s.38 is determined horizontally by the agreement's terms.
Southwark London Borough Council v Transport for London [2018] UKSC 63
Once adopted, a highway vests in the relevant highway authority.
Highways Act 1980
The vertical extent of a highway adopted under s.38 is limited to the ‘zone of ordinary use’.
Southwark London Borough Council v Transport for London [2018] UKSC 63
Outcomes
KBC is entitled to connect the proposed railway bridge to Parsonage Way.
The Level Strip was part of the highway adopted under the s.38 Agreement, both horizontally and vertically.
The 1990 planning permission and the s.38 agreement did not exclude the Level Strip from the adopted highway.
Interpretation of the plans and the s.38 agreement showed the intention to include the Level Strip.
Even if the Level Strip wasn't adopted, KBC has a right to connect via the 1992 conveyance.
The conveyance granted KBC a right to connect to the 'New Road', which encompasses the necessary access, regardless of highway adoption.