Public highway agreement denies landowner a ransom strip

Land adopted as a highway commonly includes land on which no work is undertaken: specific exclusions require agreement and clear wording. In KBC Developments LLP v Wavin Ltd and another [2023] EWHC 153 (Ch) the claimant succeeded in obtaining a declaration that a strip of land had been adopted by the council, enabling it to reach an agreement for the construction of a bridge over the railway. The case concerned a strip of land between the bottom of a verge and the top of an embankment down to the north-west side of the Great Western railway line near Chippenham, owned by Wavin. The land to the south-east was owned by KBC, which had permission to build a bridge over the railway line to connect to a road which ran across Wavin’s land. Features adjacent to the strip – a tarmac hammerhead and the verge – were adopted as a public highway and vested in Wiltshire Council. KBC argued that the strip formed part of the land vesting in the council.  Wavin claimed that it retained ownership of the strip, which was unaffected by a 1990 planning permission to divert a road, and that it formed a ransom strip. To become a public highway, the landowner and public authority must agree to a way being dedicated as such under section 38 of the Highways Act 1980. Neither party retained documents concerning the extent of the works required under the section 38 agreement and the plans to the agreement were inconsistent: one plan included the strip, another did not. The 1995 adoption plan included the whole of the tarmac hammerhead, the verge and the strip. It also identified, by pink shading, the area adopted as a public highway including the strip, as did the council’s digital record. It was common ground that land adopted as a highway will commonly include land on which no physical work is undertaken, such as verges or land left open as sight-lines. The court was not satisfied that: i) the 1990 permission excluded the strip or that the section 38 agreement was limited to land covered by it;  ii) that there was implied into the section 38 agreement a limitation on land to be included to that which had a functional relationship with the road itself; or iii) that the airspace above and ground below the strip was limited to its use prior to adoption, as a footpath. The strip was of a piece with the tarmac hammerhead and the verge and all were adopted. Louise Clark is a property law consultant and mediator