Roxlena Limited v The Ramblers' Association, R (on the application of) & Ors

Section 31 (1) of the Highways Act 1981 relevantly provides:

The issues on this appeal relate to the meaning of the phrase “actually enjoyed by the public as of right and without interruption for a full period of 20 years”.

On 19 January 2021 Cumbria County Council made the Cumbria County Council (Parish of Hayton: District of Carlisle) Definitive Map Modification Order (No 1) 2021 (“the Order”) in the exercise of powers under section 53(2)(b) of the Wildlife and Countryside Act 1981. That order, subject to confirmation, added 18 new footpaths and a bridleway over Hayton Wood, which was land belonging to Roxlena Ltd.

Roxlena objected to the Order with the consequence that the Secretary of State appointed an inspector (Ms Saward) to hold a public inquiry in order to decide whether or not the Order should be confirmed. She decided that it should not be confirmed. She took the relevant period of 20 years as being the period from 1990 to 2010, 2010 being the year in which the existence of the claimed rights was challenged: Highways Act 1981 s. 31 (2). At the heart of her reasoning was that there had been a break in public use for a period of some four months in 2001 as a consequence of an outbreak of foot and mouth disease. That meant that it had not been shown that the ways had been actually enjoyed for the full period of 20 years.

The Ramblers’ Association challenged that decision by judicial review. Having considered the grounds of challenge the Secretary of State was prepared to consent to the quashing of the decision; but Roxlena maintained its support of the decision. The order making authority (which had become Cumberland Council) took no part in the proceedings.

The judicial review challenge came before Lang J who upheld it. Her judgment is at [2025] EWHC 537 (Admin). With my permission, Roxlena now appeal. The underlying reason for my grant of permission to appeal was the existence of a potential conflict of authority at High Court level. Consistently with her stance below, the Secretary of State has taken no part in this appeal.

The Order decision was given on 10 April 2024, following both a site visit and a hearing. The Order decision recorded at [86] that Roxlena accepted that members of the public used all the routes shown in the Order over the relevant 20-year period and with the regularity claimed but raised two main points of which only the first is relevant to this appeal. That is that the use was not for a full period of 20 years and that the use was interrupted so as not to be continuous. Roxlena’s argument was augmented at [104] in which the Inspector explained that Roxlena contended that (i) continuity of public use of the paths was broken while restrictions were in place during the foot and mouth disease outbreak, and (ii) in consequence of the period of non-use there had not been public use for a full 20 years over the requisite period.

She made her findings about the outbreak of foot and mouth disease at [106] to [110]. In summary, Cumbria was badly affected by the outbreak of the disease in 2001. On 28 February 2001 an order was made by Cumbria County Council prohibiting public access to three public footpaths crossing Hayton Wood, but they did not apply to the ways under consideration. She concluded on this point:

The Inspector then set out the test to be applied as follows:

At [121] to [126] the Inspector made further findings about the use of the ways. In short, she found that during the duration of the foot and mouth disease outbreak all but one person stopped using the ways. Even then, the practicalities meant that such use could not have extended across all the Order paths without contravening the restrictions in place for the public paths. The period of non-use was of the order of four months. Once the restrictions were lifted in September or October 2001 people used the paths as before; that is for a period of 9 or 10 years before the end of the 20 year period. At [126] she said:

It was on that basis that the Inspector concluded that at [127]:

She did not, however, find that there had been an “interruption” within the meaning of section 31.

Although Mr Bowes argued his points in a different order, it is in my view logical to begin by considering what legal test the Inspector applied. In my judgment (and to some extent contrary to the view taken by the judge) it is clear that the Inspector applied a de minimis test. That is made plain by the first sentence of [116] quoted above (“the crux of the matter”). The combination of [117] and [126] repeats that approach. Although it is true to say that the Inspector said that a mere cessation of use would not break continuity of actual use, her conclusion was that since the four month break could not be regarded as de minimis, it had that effect.

The origin of the test that the Inspector applied appears to be the observations of Kerr J in R (Roxlena Ltd) v Cumbria CC [2017] EWHC 2651 (Admin) (“Roxlena 1”). That challenge concerned an earlier stage in determining what footpaths existed in Hayton Woods. The challenge was dismissed by Kerr J, and his dismissal was upheld on appeal to this court. Cumbria relied on, among other things, Advice Note 15 issued by the Planning Inspectorate in November 2012. Paragraph 1 of that Note explained that it was dealing with the question whether restrictions on access to claimed rights of way under foot and mouth legislation would constitute an “interruption” in use for the purposes of section 31 (1). Paragraph 8 stated:

That advice note concluded in paragraph 9:

Kerr J commented on that Advice Note as follows:

I agree with the judge that this part of Kerr J’s judgment was muddled and potentially misleading. It conflated two separate questions: (1) whether there was actual enjoyment for the full period of 20 years and (2) whether that enjoyment had been interrupted. The Advice Note dealt only with the question of interruption. As I will explain, an intermission in use (or “non-use”) and an interruption in use are different concepts. As I will also explain, Kerr J was wrong to dismiss the relevance of the cause of any non-use.

Nevertheless, and not surprisingly given that the Advice Note had been criticised by a High Court Judge, the Planning Inspectorate reconsidered the advice and issued a new Advice Note 15 in August 2023. The new version stated in terms that it had taken into account Kerr J’s observations in Roxlena 1. Under the heading “Consideration” that Advice Note stated:

Thus paragraph 3.2 could be read as suggesting that (as the Inspector thought) the “crux of the matter” is whether the period of non-use can be regarded as de minimis.

This version of the Advice Note has since been withdrawn.

Section 31 (1) of the Highways Act 1981 is the direct descendant of the Rights of Way Act 1932, which in turn adopted language first found in the Prescription Act 1832. It is sufficient for present purposes to quote part of section 2 of the 1832 Act which enabled a right of way to be acquired by prescription where that right:

Dr Bowes submitted that although there was a parallel between the language used in these Acts, there was significant difference in the nature of the right acquired. Under the Prescription Act 1832 all that was acquired was a private right, whereas under section 31, what is acquired is a public right. Accordingly, cases decided under the 1832 Act are not a reliable guide to the application of section 31.

I disagree. As Hilbery J pointed out in Merstham Manor Ltd v Coulsdon and Purley UDC [1937] 2 KB 77, 81 the words of the Act (in that case the 1932 Act) are reproductions of the language used in the 1832 Act; with the consequence that in considering the 1932 Act he applied authority on the 1832 Act. Lord Hoffmann identified the same pedigree in R (Sunningwell PC) v Oxford CC [2000] 1 AC 335 and R (Godmanchester Town Council) v Secretary of State [2007] UKHL 28, [2008] 1 AC 221. In Sunningwell he explained at 353 that in introducing what became the 1932 Act Lord Buckmaster said that its purpose was to assimilate the law on public rights of way to that of private rights of way. In Godmanchester he said at [8]:

In DPP v Instone [2022] EWHC 1840 (Admin), [2022] 1 WLR 5358 Holgate J, discussing section 31, said at [34]:

Accordingly, in my judgment the judge was correct in saying at [58] that the same statutory test was adopted for all three Acts with the consequence that the case law interpreting the test under the earlier Acts informs the interpretation of section 31.

Dr Bowes had another string to his bow on the question of the approach to interpretation of section 31. He referred to section 15 of the Commons Act 2006 which deals with the right to apply to register a town or village green. It relevantly provides:

It follows, so the argument goes, that where Parliament wishes a period of non-use to be disregarded, it says so expressly. There is no similar provision in section 31. Accordingly, the judge was wrong to include in her consideration whether there was a cause or explanation for the period of non-use during the foot and mouth outbreak.

There are a number of flaws in this argument. First, it is only permissible to look at later legislation to interpret earlier legislation where (a) the earlier legislation is ambiguous and (b) the later legislation is legislation on the same subject. Neither of those conditions is satisfied in this case. Section 31 is not ambiguous; and the Commons Act is concerned with a different species of public rights. Second, the legislative scheme enacted by the Commons Act is wholly different to the simple words of section 31. Third, in a case to which section 15 (6) applies, the period of non-use does not count towards the period of 20 years. It simply drops out of the picture, so that the starting point of the 20 year period is simply pushed back. As Mr Buley KC submitted, Parliament must have considered that, absent section 15 (6), a period of non-use would count towards the establishment of the 20 year period.

Lord Neuberger explained in Lawrence v Fen Tigers Ltd [2014] UKSC 13, [2014] AC 822 (a case of prescription at common law) at [142] that:

The same test applies to section 31, as Ousley J said in Wright v Secretary of State for Environment, Food and Rural Affairs [2016] EWHC 1053 (Admin) at [21]:

At [86] of the Order decision the Inspector recorded that Roxlena accepted that the public used all the routes in the Order over the 20 year period and on the regularity claimed, subject to the gap when foot and mouth restrictions were in force. I understand that concession to have been a concession that, subject to the four month gap and any question of interruption, the quality of the use met the legal test I have set out.

It is obvious common sense that a way may not be used for every minute of every day, but may nevertheless be a public right of way. Dr Bowes accepted that as a general proposition, but nevertheless stressed that the language of section 31 required it to be demonstrated that the use must have been “actual enjoyment” for the “full period” of 20 years. In evaluating that point it is necessary to consider how the same concept was explained in earlier cases both under the 1832 Act and the 1932 Act. In Carr v Foster (1842) 3 QB 581 Lord Denman CJ said at 586-7:

In the same case Patteson J said at 588:

Williams J emphasised the difference between an interruption and an intermission.

The judge correctly said at [65] that these judgments:

In Jones v Bates [1938] 2 All ER 237, dealing with the Rights of Way Act 1932, Scott LJ said at 246 that a mere absence of continuity in the de facto user proved will not prevent the statute from running. Scott Baker J applied that observation when considering section 31 in Fernlee Estates Ltd v City & County of Swansea [2001] EWHC 360 (Admin) at [16]. In Lawrence v Fen Tigers Ltd Lord Neuberger approved Carr v Foster at [37] and [141] holding that the trial judge was not entitled to find that an intermission for two years in the prescriptive right claimed would have prevented the acquisition of the claimed easement by prescription.

The word “interruption” which appears in section 31 is also the subject of some case-law. In Carr v Foster Williams J said:

In Merstham Manor Hilbery J said that an interruption means an “actual and physical stopping of the enjoyment”. In Jones v Bates Scott LJ said that:

Thus, in Lewis v Thomas [1950] 1 KB 438 Sir Raymond Evershed MR, applying Jones v Bates said that an interruption “means interruption in fact”.

What is clear from the case-law is that an intermission in use and an interruption of use are two quite different concepts.

In his written argument Dr Bowes submitted that if there has been an intermission in use, the reason for that intermission is irrelevant. He relied on the statement of Kerr J in Roxlena 1 at [73] that:

In support of this submission, he drew attention to the decision of the Divisional Court in De Rothschild v Buckinghamshire CC (1957) 8 P & CR 317. That is not a case that is entirely easy to understand. There were two potential dates at which the existence of the claimed right was brought into question: one in 1911 and the other in 1948. I think that it is the latter date which is relevant to this appeal. As regards that date the facts appear to have been as follows. The way was used by the public between 1911 and 1940, when the land over which it ran was requisitioned as a munitions factory. Thereupon the use of the way ceased, and following the derequisitioning of the land at some point after 1945 the landowner posted notices stating “No right of way” at each end of the way. Slade J gave the leading judgment. On the basis that 1948 was the relevant date when the right was called into question, he said:

In other words, the use of the way had not been exercised for eight years before the end of the period. It was not a case in which there had been an intermission in use during the course of use for a period both before and after the intermission. It gives no support to the argument that an explanation for an intermission in use is irrelevant.

In Hollins v Verney (1884) 13 QBD 304 Lindley LJ considered the question of cessation of use. He said at 311, after referring to previous cases:

He went on to say at 314:

In his oral submissions Dr Bowes adopted a less absolutist approach. He accepted that an explanation for non-use may be relevant, but that it was a question for the decision-maker to determine. At one stage he seemed to suggest that this was a matter of public law discretion. But as Lewis LJ pointed out in argument, whether a public right of way has been established has nothing to do with discretion. It is a fact-finding exercise which, under the Prescription Act 1832, would in the nineteenth century have been a matter for the jury.

His final position in oral submissions was that if there is a gap in use it is necessary to inquire into the reason for the gap, but whether the reason is relevant to the question whether there has been actual use for the full period or whether there has been an interruption of use is a question for the decision maker.

It is, with all respect, clear that if there is a gap in use, and an explanation for it, the explanation will be relevant. Whether the gap is an intermission or an interruption will depend on the reason for the gap. Whether a gap is consistent with the continued assertion of a right of way will also depend on the explanation for the gap.

Although Dr Bowes argued that the judge departed from previous case law, it was in fact Kerr J who did so. Whether the cause of the non-use is mere intermission or an interruption is dependent on the cause; and in deciding whether it is consistent with the continued assertion of the claimed right the cause of the non-use is of critical importance.

In my judgment, the judge was entirely correct in saying that an explanation for an intermission in use is relevant to the overall question of fact; and that it is important to survey the extent and nature of the use over the whole of the relevant 20 year period.

In paragraph 4 of their skeleton argument Roxlena say:

That is a mischaracterisation of the judge’s judgment. She did not say anything of the kind. At [86] she accepted the submission that:

She added at [88]:

All that she said is that the reason for any intermission in use is “likely to be relevant information”. In so saying she was entirely correct.

There is no doubt that the Inspector made factual findings about the reason for the gap in use which the judge accurately summarised at [124]. Dr Bowes submitted that the Inspector had properly considered the reason for the intermission and whether it was consistent with the continued assertion of the claimed right.

But the only consideration of the effect of that reason was a single sentence at [126] of the Order decision in which the Inspector said:

It is clear from the Inspector’s statement that the public use “had stopped” that she was only considering the relevance of the reason for the non-use during the period of non-use itself. I agree with the judge at [123] that the Inspector asked herself the wrong question. It is clear that the question whether a gap in use is inconsistent with the continuing assertion of the claimed right is a retrospective exercise, to be conducted at the time when the right is brought into question and looking back over the whole period of 20 years. That is why the resumption of use after an intermission is of such importance in considering whether a claimed right has been continuously asserted. In saying what she did, the Inspector simply failed to consider the fact that after the ending of the four month gap the public use of the ways resumed and continued for a further eight or nine years before the existence of the way was brought into question. That was, to my mind, a clear error of law.

The judge said at [123]:

I agree.

Mr Buley summarised the law in eight crisp propositions each of which I accept and which I quote (omitting citations):

Whether there had been actual enjoyment as of right for the full period of 20 years is a question of fact (or, possibly, an evaluative judgment). But in arriving at a decision on the facts, the decision-maker must apply the right legal test.

In the present case it is clear, in my view, that the Inspector did not apply the right legal test. Probably led astray by Roxlena 1 and the revised Advice Note, she approached the statutory question with tunnel vision, looking only at the question whether the intermission in use was more than de minimis.

Dr Bowes submitted that it was rationally open to the Inspector to find that a four month intermission in use was sufficient to preclude actual enjoyment for the full period of 20 years. In support of this submission, he relied on Betterment Properties (Weymouth) Ltd v Dorset CC [2012] EWCA Civ 250, [2012] 2 P & CR 3, and Naylor v Essex CC [2014] EWHC 2560 (Admin), [2015] JPL 217.

Both those cases concerned the question whether there had been use “as of right for not less than twenty years” for the purposes of the registration of a town or village green under the Commons Act 2006. In both cases the public were physically prevented for a period of some months from using part of the land claimed to be a town or village green for lawful pastimes. Both cases approached the question as one of interruption, even though that is not a word that is used in the Commons Act itself. As I have said, whether something amounts to an interruption is not the same question as whether an intermission in use can defeat a claim that there has been actual enjoyment over the full period. Moreover, as I have said, the scheme under the Commons Act is quite different from the statutory test under section 31.

In the Order decision in this case the Inspector considered whether there had been an interruption and concluded at [128] to [130] that there had not been. Roxlena does not challenge that conclusion. In those circumstances, I do not consider that decisions under different legislation with a different structure advance Roxlena’s case.

In my judgment, the judge was fully entitled to interfere with the Inspector’s conclusion.

Dr Bowes’ final complaint was that the judge went too far in stating her conclusions at the end of the judgment. What she said was this:

The first of these paragraphs is based on the Inspector’s findings that there had been public use of the requisite nature from 1990 to (approximately) February 2001 and from (approximately) the summer of 2001 to 2010 separated by a four month gap while foot and mouth restrictions were in force. On the basis of those findings, I consider that the judge was fully entitled to accept the submission recorded at [126]. Any other conclusion would have been perverse. For the same reason I consider that the judge was entitled to accept the concession of the Secretary of State (who was the statutory decision maker) recorded at [127].

Finally, Dr Bowes submitted that even if the Inspector had not committed the legal error that she did, it was “highly likely” that she would have reached the same conclusion, with the result that relief should have been refused under section 31 (3C) of the Senior Courts Act 1981.

The argument seems to be that the order for confirmation before the Inspector was not subject to any limitation (such as a limitation to periods where there was no national emergency in force), whereas the evidence was that the claimed right was not asserted during the foot and mouth emergency. Thus, there was a mismatch between the right claimed and the use proved.

I reject this argument. The right both claimed and established was actual use as of right for the 20 year period (once the nature of the test is properly understood). If, at some time in the future, restrictions on use of the ways were to be imposed under public health or other legislation, then any use would have to comply with such restrictions. But that is no basis for concluding that in the absence of the legal errors that the Inspector made, it was highly likely that she would have concluded that no rights existed at all.

In my judgment, the judge came to the right answer for the right reasons. I would dismiss the appeal.

The question whether the Order should be confirmed is therefore remitted to the Secretary of State. It is a matter for her how she deals with the remitted question and what procedure she adopts.

I agree.

I also agree.