What amounts to interruption of a use in a Public Right of Way? A Case Study

In a significant legal victory for public right of way, the Ramblers’ Association successfully challenged a decision by an Inspector to refuse the confirmation of an order made by Cumbria County Council. This order aimed to add footpaths through Hayton Woods, east of Carlisle, Cumbria, to the definitive map of public footpaths. The case, R. (on the application of Ramblers’ Association) v Secretary of State for Environment, Food and Rural Affairs, highlights the importance of public enjoyment and the legal nuances surrounding the dedication of public footpaths under the Highways Act 1980.

Background of the Case

The dispute centered around footpaths running through Hayton Woods, owned by Roxlena Limited. The right of the public to use these paths was first questioned by Roxlena in 2010. However, the Ramblers’ Association argued that public use of the paths from 1990 to 2010 was sufficient to create a presumption of dedication as public rights of way under section 31(1) of the Highways Act 1980. This section presumes dedication of a way as a public right of way after 20 years of public use “as of right” and “without interruption.”

The complication arose from a four-month disruption in 2001 due to the foot and mouth outbreak, during which public footpaths were closed by ministerial order. Although the paths in question were not officially public footpaths at that time, the public’s ability to access them was significantly affected. The Inspector concluded that this disruption meant there had not been “actual enjoyment” of the paths for the full 20-year period, leading to the refusal to confirm the order.

The High Court’s Decision

The High Court found that the Inspector had applied the wrong test in assessing the evidence of public enjoyment. The court clarified that mere absence of continuity of use during the qualifying 20-year period does not stop time running for the purposes of raising a presumption of dedication. The key question is whether use over the entire 20-year period was sufficient to make a reasonable landowner aware that a public right of way was being asserted by actual enjoyment.

Importantly, the court distinguished between an interruption and an intermission or lack of continuity in actual enjoyment. Actual enjoyment does not require day-to-day use by the public but rather the ability of the public to enjoy use over a period of time. An interruption requires a positive act, such as locking gates or creating physical barriers, which interferes with the enjoyment of the way. In contrast, mere non-use during a period of foot and mouth restrictions was not considered an interruption.

Implications of the Ruling

This ruling underscores the importance of understanding the legal definitions of “actual enjoyment” and “interruption” under section 31(1) of the Highways Act 1980. The court emphasised that actual enjoyment is assessed by reference to the whole 20-year period, and a mere absence of continuity does not prevent actual enjoyment over that period.

The case also draws parallels with the principles established in Coventry & Ors v Lawrence & Anor UKSC 13, where Lord Neuberger stated that mere non-use or inactivity for a portion of the 20-year period does not necessarily prevent the establishment of a prescriptive right. The essential question is whether the nature and degree of the activity over the 20-year period should make a reasonable person aware that a continuous right to enjoyment is being asserted.

Conclusion

The High Court’s decision in R. (on the application of Ramblers’ Association) v Secretary of State for Environment, Food and Rural Affairs is an important decision and will be a concern to landowners who may now find it more difficult to prove that a right of way has not been used over a period of 20 years. The case also serves to emphasise that Landowners need to remain vigilant regarding who is using their land.