The recent query ‘Who Owns Highways’ from one of my developer clients has prompted me to write on the law about the ownership of highway land.
Highways are areas of land over which the public at large has rights of way. Highways may be maintained by local highway authorities at public expense. However, where land is highway, it is not necessarily owned by the relevant highway authority.
My client is developing a site, which is in a town and fronts onto a highway maintained by the local authority.
The building design requires raked piles to be installed. They are parts of the structure which form foundations and are installed at an angle rather than directly vertically. In this case, the raked piles need to protrude from my client’s site into the land below the adjoining highway.
My client approached the local highway authority to get permission. The local highway authority in response asked my client who owned the land beneath the highway, which prompted my client to ask me the same question.
The Land Registry title plan to the site shows red edging around the building site but does not include any of the adjoining highway. The first point to make is that Land Registry title plans do not show the legal boundary to a property but only a general boundary.
The second is that there is a presumption in law that where a document transfers ownership of property that adjoins a highway it will carry with it half of the highway. This is the case even where a plan is attached to the document which would appear to exclude the adjoining highway. This is known as the “ad medium filum rule”.
The presumption is strong and there must be strong evidence of a contrary intention to prevent ownership of the highway passing in the relevant transfer document.
The depth of the highway (i.e. the extent of it from the surface to where your land begins) is as much as is required to maintain the highway, so will include the depth of a road to and including the foundations of it.
If you own the subsoil beneath a highway you are free to deal with that how you like provided that you do not interfere with the rights to use the highway. Any works that may interrupt use of the highway would need the local highways authority’s consent.
Any pipes and cable lying beneath the highway are installed as a result of statutory rights to be installed under statutory rights rather than because the land itself is highway.
It is, of course, possible that the land underneath the adjoining highway may have been excluded from a document transferring ownership of the land to rebut the presumption of ad medium filum. However, if there is no evidence of such exclusion and it is not obvious that the subsoil beneath the highway is owned by a third party the assumption is that it belongs to the adjoining landowner.
For most new vehicular highways that are built, land is acquired from the owner by the relevant highway authority from the owner and the ad medium rule will not be relevant. Major trunk roads are typical examples of this.
Where it is relevant, it can be very useful to be aware of the ad medium filum rule.