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High Court rules on s38 agreement to adopt land up to boundary: What developers need to know

The High Court recently ruled in KBC Developments LLP v Wavin Ltd and another [2023] EWHC 153 (Ch) that the extent of a highway adopted by way of an agreement under s38 of the Highways Act 1980 was sufficient to permit the construction of a bridge over a railway to serve a residential development. This indicates that such agreements are not limited in effect by a related planning permission and also highlights the need to get s38 agreements right!

The case concerned a small strip of land in dispute and the entitlement of KBC Developments LLP to build a proposed bridge over a railway. The High Court considered whether the extent of a highway adopted by agreement was sufficient to permit the construction of a bridge over a railway for a residential purpose or whether this had created a ransom strip.

A highway may be adopted by way of agreement under s38 when a developer wishes to construct a road for a residential, industrial or general purpose. Where a highway is offered for adoption, the local authority agrees to maintain the road at the public expense, subject to roads being built to the required standard.  

The court declared that on correct interpretation of the s38 agreement, the highway had been adopted to the ownership boundary. In accordance with s263 of the Highways Act 1980, ‘sufficient land had been vested in the local highway authority in the horizontal and vertical planes to allow the construction of a substantial bridge connecting the two sites’. The decision builds on earlier authorities such as Southwark London Borough Council v Transport for London [2018] UKSC 63,  where highway authority was also found to extend to extensive areas of airspace above and depth beneath a highway surface to enable the ‘construction of a substantial bridge structure’.

The judgement reinforces the importance of the terms of s38 agreements and the need for careful drafting to avoid ambiguity.

"KBC is entitled to the declaration sought by it, that there is no gap between Parsonage Way and the legal boundary between Wavin's land and Network Rail's land and KBC may therefore connect the proposed railway bridge to Parsonage Way"

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