In any situation where a residential development adjoins a public highway, care must
be taken at all stages of the process to ensure
that no part of the development overhangs the
highway. Failure to do this may lead to problems in
terms of:
the approval of estate plans;
the need for projection-over licences;
plot disposal;
the sale of the freehold reversion; and
enfranchisement.
Moreover, there is no guarantee that there will be a
solution to the problem – defective title insurance is
not currently available.
A matter dealt with by this firm demonstrates the
pitfalls that may await a developer, and how an
application of the presumption usque ad medium
filum viae (middle-of-the-highway presumption)
provided the solution.
ESTATE PLANS AND ACQUISITION
It is relatively common to see balconies attached to
developments, but they are not substantial, do not
form part of the fabric of the building and may be
dealt with by the grant of a projection-over licence
in accordance with s177 of the Highways Act 1980
by the local council. A developer had plans drawn up
for a residential development, which had several
apartments with substantial parts of their living
accommodation overhanging the highway.
The estate plans were lodged at the Land Registry,
which did not reject the application, but instead left
the overhanging parts unapproved. When the
development was registered, the boundary of the
developer’s title only extended as far as the
highway, leaving the overhang unregistered.
DISPOSAL
There were two main issues that arose when the
developer attempted to dispose of the overhanging
apartments by the grant of long leases:
1) the search revealed that the overhanging part of
the living accommodation was unregistered; and
2) the prospective purchaser was concerned about
enfranchisement, in particular, the right to
acquire a new lease under Chapter II of the
Leasehold Reform, Housing and Urban
Development Act 1993.
Solution 1: a projection–over licence?
The council granted a projection-over licence in
respect of the overhang. However, this was made
pursuant to the council’s statutory obligations
under the Highways Act 1980 to regulate activity on
or over the highway. It failed to deal with the
ownership and enfranchisement issues.
Solution 2: the grant of a long lease of the airspace?
A search of the index map revealed that the
highway, like much of the highway in England and
Wales, was unregistered. In any event, a council or
the highways authority may be particularly reluctant
to grant a long lease of airspace over a public
highway. In this instance, the council confirmed that
it did not own the highway and so was unable to
grant a lease of the airspace in any event.
Solution 3: a ‘middle-of-the-highway’ solution?
The middle-of-the-highway presumption is only one
of three interrelated presumptions that apply when
land is bounded by a highway or private right of way.
The middle-of-the-highway presumption is that the
owners of land that adjoins the public highway are
presumed, subject to any evidence to the contrary,
to own the subsoil and the airspace above the
subsoil (subject only to a right of passage over the
highway and the rights of the highway authority) up
to the middle of the highway. It mainly applies in
instances where the conveyancing history of the
land is unknown. It is not Land Registry practice to
show the boundary up to the middle of the highway,
and so the title boundary as shown on the official
copy plan does not rebut this presumption.
The second related presumption is that the
subsoil, up to the centre of the highway, will
pass in a conveyance or transfer without being
expressly mentioned.
The third presumption, known as the ‘hedge-to-hedge’
presumption, is that, where a fence or hedge bounds
both sides of a highway, it is presumed, regardless of
any partitioning, that the highway extends all the way
to the fence or hedge. However, there must be
evidence that the fence or hedge was placed to
separate the highway from the adjoining land.
APPLICATION TO CHANGE THE REGISTER OR FIRST REGISTRATION?
The better application, both legally and for a
developer client, is for the Land Registry to change
the register to reflect the true extent of the
developer’s title.
For a developer client, this has two related
advantages. First, the overhanging apartments will
take the same grade of title as that of the rest of the
development. Secondly, given that the presumption
applies most often where the conveyancing history
of the land is unknown, a first registration application
may result in a lower grade of title, which may also
cause problems for the developer on disposal.
LAND REGISTRY APPLICATION
In the 1980s, it was much more common for the
Land Registry to apply the middle-of-the-highway
presumption. Its requirements were much less
stringent, with developers using this to their full
advantage, for example, to link up development
sites with the highway. Today, however, the
approach is more rigorous.
On this occasion, after thorough investigations of
the title and exploratory correspondence and
discussions with the Land Registry, an application
was lodged with a covering letter confirming the
following main points:
a) the council had never owned the highway and
the highway was unregistered; and
b) the developer had no evidence, having
considered the title deeds and pre-registration
documents, which rebutted the presumption.
The end result was that the register was
changed, so that the overhang was added to the
developer’s freehold title, with an entry in the
property register to the effect that in respect of
any roadway and footpaths falling within the title,
so much of the surface and subsoil that actually
formed part of the public highway was excluded
from the registration.
From the developer’s point of view, this was
the happy ending. The key was to establish on
the facts that the middle-of-the-highway
presumption applied, and to make the strongest
possible outline case to the Land Registry in
support of this.
SUMMARY
As mentioned at the outset, careful consideration
at the earliest stages of development may
prevent the problem arising in the first place.
However, following practical completion, the
limited options available to resolve such an issue
mean that the solution to an overhang may involve
recourse to this long-established principle, with its
inherent uncertainties.
