This judgment was handed down remotely at 11 am on 11 March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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MRS JUSTICE LANG DBE
Mrs Justice Lang :
- The Claimant seeks judicial review of the Defendant's 'Order Decision', made on 10 April 2024, by an Inspector appointed on his behalf, refusing to confirm the Cumbria County Council (Parish of Hayton: District of Carlisle) Definitive Map Modification Order (No 1) 2021 ("the Order"), made pursuant to section 53(2)(b) of the Wildlife and Countryside Act 1981 ("WCA 1981"). The Order, if confirmed, would add footpaths and a bridleway to the Definitive Map and Statement ("the DMS") in woodland known as Hayton Woods, in Cumbria. The Inspector was not satisfied that a statutory presumption of dedication as a footpath after public use for 20 years had arisen, applying section 31(1) of the Highways Act 1980 ("HA 1980").
- The Claimant challenges the decision in regard to the footpaths, not the bridleway. It is a registered charity which was founded on 1 January 1935. Its purpose is to remove barriers to walking in green spaces, and to preserve and improve well-loved paths, tracks and trails across Great Britain. The Claimant has frequently been accepted as having standing in litigation concerning the law relating to rights of way. It represents the interests of members and other walkers who seek to establish rights of way under the DMS process, but who would be unable to personally fund, or face the costs risks of litigation. I am satisfied that it has standing to bring this claim, and has not forfeited its standing by its decision not to participate in the Inquiry.
- The Defendant reviewed the claim, following the grant of permission by me on 12 September 2024, and decided not to continue to contest it, for the reasons set out in his letter to the Court dated 16 October 2024.
- The First Interested Party ("Roxlena") is the owner of most of the land affected by the Order routes, which it purchased in August 2013. It was a statutory objector at the Inquiry, and it continues to contest the claim, despite the Defendant's concession.
History
- There are three existing public rights of way through Hayton Woods, described in the Inspector's Order Decision at paragraph 6 ("OD/6"). The Order routes, if confirmed, would be additional rights of way in the same area.
- An application was originally submitted to Cumbria County Council ("the County Council") on 6 January 2011 for a definitive map modification order ("DMMO") to add footpaths and a bridleway in Hayton Woods. The County Council did not progress the application as it did not conform to the statutory requirements. A second application followed on 2 April 2013, made on the same terms, but including other material in support. The applicant subsequently sought to withdraw this application.
- As there is no express right of withdrawal within Schedule 14 WCA 1981, the County Council proceeded to deal with the application in furtherance of its duty under section 53 WCA 1981 to keep the DMS under continuous review. This resulted in a decision of the County Council's Development Control and Regulation Committee on 4 January 2017 to make an order under section 53(3)(c)(i) WCA 1981 Act to add a network of 44 sections of footpath to the DMS and to extend a bridleway.
- The decision authorising the making of a statutory order was challenged by way of judicial review in the High Court: Roxlena Limited v Cumbria County Council [2017] EWHC 2651 (Admin) ("Roxlena 1"). The claim was dismissed in the High Court and in the Court of Appeal: [2019] EWCA Civ 1639.
- The DMMO was subsequently made on 19 January 2021 by the County Council. If confirmed, the Order would add 18 public footpaths to the DMS. The routes shown in the Order ("the Order routes") were unaltered from the time of the County Council's original decision. The reduction in the number of routes resulted from the County Council reviewing and revising the sections which it considered to constitute a "way" for the purposes of section 31 HA 1980.
- Following a local government reorganisation, with effect from 1 April 2023, the County Council no longer exists. The Order routes now fall within the administrative area of Cumberland Council ("the Council").
The Inspector's Order Decision
- The Inspector (K.R. Saward, Solicitor, MIPROW) identified the main issue as whether, on the balance of probabilities, there were public rights of way that should be recorded on the DMS along the Order routes, in particular, whether dedication of the 'way' as a public footpath had occurred through public use (OD/79).
- Following an Inquiry and a site visit, the Inspector decided not to confirm the Order as, applying section 31(1) HA 1980, she was not satisfied that use by the public had been enjoyed without interruption for the full 20 year period under consideration, given the cessation in use over the foot and mouth outbreak (OD/208).
- At OD/85, the Inspector found that when the County Council made the order, it took 2010 as the date when the status of the Order routes were brought into question, as that was the year when fences were erected across entry points, users were challenged and the DMMO application was made. Thus, the relevant 20 year period was 1990 to 2010.
- The Inspector recorded Roxlena's important concession, at OD/86:
"…Mr Laurence confirmed that Roxlena accepts that members of the public used all the routes shown in the Order over the relevant 20-year period and on the regularity claimed…."
- However, Roxlena went on to submit that such use was not for a full period of 20 years, and the use was interrupted so as not to be continuous, during the foot and mouth disease outbreak in 2001.
- The Inspector made the following findings in regard to the foot and mouth outbreak and its effects on the use of the Order routes:
"106. Cumbria was severely affected by the foot and mouth outbreak in 2001 resulting in a devastating loss of livestock. By all accounts the impact was acutely felt by the community of Hayton and surrounding area. Indeed, the Inquiry heard from Joan Partington who described the distress of mass culling taking place in fields close to her home. Boyd Holmes similarly referred to cattle cremated by bonfire nearby. In this climate, residents were highly conscious of the risks of disease spread through people movement in rural areas and keen to act responsibly.
107. Measures were imposed to stop the spread. The Foot-and-Mouth Disease (Amendment)(England) Order 2001 came into force on 27 February 2001. The Order gave power to inspectors appointed by the Ministry of Agriculture, Fisheries and Food (or a local authority) to close public footpaths and prohibit entry onto land by displaying, or causing to be displayed, a notice to that effect at every entrance to the land. Public access to the three existing public rights of way crossing Hayton Woods was prohibited by Order made by Cumbria County Council on 28 February 2001.
108. Such restrictions did not directly apply to the Order routes as they were not dedicated public highways. The woods remained accessible from the public highway at points 8 and 9. There is some conflict over whether the red and green routes were accessible from the public highway in How Street at points 31 and 32. Mr Lowther, the forestry contractor called by Roxlena, recalled the gate at point 31 being taped off and 'DEFRA' signs displayed along with tape and signs at point 32 also.
109. Whether or not that is so, use of the Order routes must have been affected by the closures where they connect with the existing paths. For instance, both red and green routes connect with recorded paths meaning that a circular walk could not have been available during the restrictions. Use of many of the paths would necessitate a person re-tracing their steps. Some sections lying in between the public paths would have been inaccessible altogether.
110. Given the network of inter-linking paths, the availability of the Order routes for walkers would have been limited. In all likelihood, the passage along most of them would have been prevented by the closure of the three public paths."
- At OD/111-115, the Inspector considered Version 2 of Advice Note 15 and the judgment of Kerr J. in Roxlena 1.
- The Inspector directed herself on the tests to be applied at OD/116-117:
"116. The crux of the matter here is whether as a matter of fact there was a break in continuity of use which was more than de minimis so that there had not been actual enjoyment of the claimed routes for the full 20 years. Whether there was an interruption in use is a different point albeit capable of arising from the same facts. A use could cease without an interruption occurring but result in less than 20 years use being shown. Of course, it will depend on the circumstances.
117. For the routes to be 'actually enjoyed' for the purposes of section 31(1) requires sufficient use of the way over the required 20-year period. This is a matter of fact to be determined in each case. The motive for using the ways is irrelevant. It is undisputed that a short period of non-use which is de minimis (i.e., too small to be considered) would not affect the running of time."
- The Inspector made the following findings:
"121. Now that we are at confirmation stage, the question of whether use of the Order routes continued during the foot and mouth outbreak warrants closer scrutiny. Of the users who gave oral testimony, only Mr King maintained that he had continued to use Hayton Woods during the foot and mouth outbreak, except for the 'track' between points C and I. The only place he saw signs prohibiting entry were at the 'Greystone' entrance i.e., point C. This is the entry point for BW 117004 (and a claimed path providing a link to FP 117005). Mr King assumed the sign related solely to the track and not to other parts of the woods.
122. All other witnesses who gave oral evidence in support of the Order acknowledged there was incident tape and/or notices intended to stop public access at the entry points for all the existing public paths through the woods. Those witnesses were emphatic that they did not enter the woods at all throughout the months that restrictions were in place.
123. This demonstrates that whilst many users stated on their UEF[1] that there had not been any interruption to their use, they had not considered a period of non-use due to foot and mouth restrictions to amount to an 'interruption'. The upshot is that it cannot be reliably gleaned from the UEF's whether people whose evidence was untested had actually enjoyed use of the claimed paths throughout the period claimed.
124. No-one could recall precisely how long the foot and mouth restrictions lasted in the area but witnesses consistently referred to several months. It is known that Orders came into force at the end of February 2001 whereupon public paths in Cumbria were closed. Restrictions remained in place for at least 4 months, possibly much longer. Mr Holmes thought it was until September/October 2001. It is not essential to establish the precise period. Once the foot and mouth restrictions were lifted people continued to use paths through Hayton Woods as before.
125. From the tested evidence, the reality is that all but one person stopped using the Order routes whilst restrictions for foot and mouth disease were in place. 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 evidence of one person does not suffice to show that the routes were actually enjoyed by the public during the outbreak. That is particularly so when all other witnesses had stopped use. The evidence points firmly to a period of non-use over at least 4 months falling within the requisite 20-year period.
126. To some extent use will be intermittent depending on when people choose to walk the paths. A mere cessation of use may not break continuity of actual enjoyment. In my judgement, as a matter of fact and degree, this was not a short break that can be regarded as de minimis. It was a prolonged period where the Order paths were not actually enjoyed by the public. Closure of the three public paths clearly had a deterrent effect and people kept out of the woodland. Moreover, from the landowner's perspective the public use had stopped and so they could not reasonably know that a continuous right to enjoyment was being asserted that ought to be resisted."
- The Inspector concluded as follows:
"127. All things considered, it leads me to conclude that, in the particular circumstances of this case, the Order routes had not been actually enjoyed by the public for a full period of 20 years before the date of bringing into question. This alone means that the requirements of section 31 of the 1980 Act are not met for the presumption of statutory dedication to arise.
128. Whether the break in public enjoyment also amounts to an interruption in use for the purposes of section 31 is another matter. The practical consequence of the public path closures in Hayton Woods was to render some Order paths inaccessible and the use of others impractical. The overall effect was that use stopped during the restrictions and to that extent the use was interrupted.
129. However, the closure orders were not directed at the Order routes. There was no physical stopping of their use, and the period of non-use did not occur because of any intent on the landowner's part to prevent public use of them. There is nothing to indicate any steps were taken by the landowner to disabuse the public of any belief that the Order routes were public paths. From that viewpoint, there was not an operative interruption. Indeed, the oral evidence points to walkers choosing to keep away, being alert to the risks of spreading the disease.
130. As a failure to meet any part of section 31(1) is enough to defeat a claim under statute, nothing turns on the issue of interruption."
- Before me, Roxlena did not challenge the Inspector's conclusion that there was no interruption for the purposes of section 31(1) HA 1980.
- The 4 month intermission in use of the Order routes during the foot and mouth disease restrictions was the sole basis upon which the Inspector refused to confirm the Order. The Inspector rejected submissions made by Roxlena that the public's use was more consistent with a village green than rights of way (OD/54-55); that the public had been "wandering at will" rather than using the Order routes as a means of passage (OD/95-103); and that there had been "interruption" by reason of the Boxing Day storms in 1998 (OD/135-136) or forestry works (OD/137-166).
- The Inspector also found that the use had been "as of right" in the sense required by section 31(1) HA 1980, that is to say, without secrecy, force or permission of the landowner (OD/167-206).
Statutory framework and guidance
The DMS and the WCA 1981
- The DMS is a record maintained by the surveying authority (usually the local authority) of the public rights of way within its area. Its purpose is to ensure that existing public rights of way are properly identified and maintained.
- By section 53(2)(b) WCA 1981, the Council is under a duty to keep the DMS under continuous review, after the occurrence of specified events. In this case, the relevant "event" for the purposes of subsection (2), came within sub-paragraph 3(c)(i):
"(3)(c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows
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(i) that a right of way which is not shown in the map and statement subsists or is reasonably alleged to subsist in the area to which the map relates, being a right of way such that the land over which the right subsists is a public path….."
- Schedule 14 to the WCA 1981 sets out the procedure to be followed when an application for a DMMO is made. Schedule 15 to the WCA 1981 sets out the procedure to be followed when the authority makes an order. An order made by the authority shall not take effect until confirmed by the Secretary of State (paragraph 2). Paragraph 6 provides for confirmation of the order where there are no representations or objections. Paragraph 7 provides for confirmation of the order where there are representations or objections, in which case the Secretary of State shall cause to be held either a local inquiry or a hearing. Paragraph 11 provides for notification of the decision whether or not to confirm the modification order.
Deemed dedication of a public right of way
- Section 31(1) HA 1980 provides:
"31.— Dedication of way as highway presumed after public use for 20 years.
(1) Where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it."
- Each element of section 31(1) must be met to raise a presumption that the routes have been dedicated as public footpaths. The character of the way must be capable of dedication as a public footpath. The public must have enjoyed the right of way as a footpath over a full period of 20 years, without interruption, immediately prior to its status being brought into question.
- Such use has to be "as of right", meaning without secrecy, force, or permission (nec vi, nec clam, nec precario). In R (Barkas) v North Yorkshire CC [2014] UKSC 31, [2015] AC 195, the Supreme Court, per Lord Neuberger at [14], clarified that this phrase does not mean "user of right"; its meaning is closer to "user as if of right". Lord Hoffmann explained in R v Oxfordshire CC ex parte Sunningwell PC [2000] 1 AC 335, at 351A-C, the law of prescription rests upon the principle of acquiescence and the "unifying element in these three vitiating circumstances was that each constituted a reason why it would not have been reasonable to expect the owner to resist the exercise of the right – in the first case, because rights should not be acquired by the use of force, in the second, because the owner would not have known of the user and in the third, because he had consented to the user, but for a limited period".
- If all the criteria in section 31(1) HA 1980 are met, the statutory presumption of dedication arises. That presumption may be rebutted if there is sufficient evidence that there was no intention on the part of the relevant landowner during the relevant 20 year period to dedicate the way for use by the public.
Guidance
- I was shown guidance documents issued by the Planning Inspectorate ("PINS"), which were permanently withdrawn in November 2024, namely:
i) 'Consistency Guidelines on Definitive Map Orders', last updated on 27 January 2022.
ii) 'Rights of Way Section. Advice Note 15. Breaks in user caused by foot and mouth disease', 5th revision, November 2012 ("Version 1").
iii) 'Rights of Way Section. Advice Note 15. Break in user caused by foot and mouth disease', updated 15 August 2023 ("Version 2").
- The parties agreed that these guidance documents were summaries of the law, for the assistance of inspectors and members of the public, but they were not "an authoritative interpretation of the law" (as explained in Advice Note 15). They are no longer in force, and it appears that they will not be updated or replaced.
Challenges to decisions of Planning and Rights of Way Inspectors
- The Court should start from the presumption that an expert inspector has interpretated government policy correctly in their area of specialist expertise, see Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] 1 WLR 1865 at [25].
- Moreover, when an inspector refers to policy guidance then, absent some positive contrary indication in other parts of the text of his reasons, the appropriate inference is that he has taken properly into account all the relevant provisions of that policy guidance, see Jones v Mordue [2016] 1 WLR 2682 at [28].
- Decisions of the Secretary of State and his inspectors are to be construed in a reasonably flexible way, without hypercritical scrutiny. The conclusions in an inspector's report or decision letter should not be laboriously dissected in an effort to find fault, see St Modwen v Secretary of State for Communities and Local Government [2018] PTSR 746 at [6]-[7].
Grounds of challenge
- It is convenient to consider Grounds 1 and 2 together, because of the overlap between them.
Claimant's submissions
- The Claimant submitted that an intermission, in the sense of a mere absence of continuity, caused by foot and mouth disease, could not in itself mean that the public had not enjoyed the right of way over the 20 year period. The intermission will necessarily have been of comparatively short duration. It was four months in this case, and no more than six months in nearly all cases. This can be compared to the intermission of 2 years described by Lord Neuberger, at [141]-[142], in Lawrence v Fen Tigers Ltd [2014] AC 822, [2014] UKSC 13 as being insufficient to defeat a prescription claim, and it will be readily capable of the "explanation" referred to by Lord Denman CJ in Carr v Foster 3 QB 581, at 587. The public's lack of use in the period of the restrictions will be explained by the restrictions which are entirely consistent with that right. No reasonable landowner would conclude, from the absence of public use in the period of restrictions, that the public assertion of the right (as demonstrated by public use in the rest of the 20-year period) had been withdrawn. That was no different from a case where the route was blocked by a broken-down vehicle (as in Lewis v Thomas [1950] 1 KB 438), or a fallen tree, or where the public were deterred by flooding or frozen conditions in winter.
- The Claimant submitted that the correct test is whether the public use over the 20 year period was sufficient, when viewed as a whole, to bring home to the mind of the reasonable landowner that the public were asserting a continuous right, which ought to be challenged by the landowner if he wished to resist it (see per Lord Neuberger in Lawrence v Fen Tigers Ltd at [142]). The test is not whether at any given point in time within the 20 year period, the public's use at that particular time is sufficient to bring home the public's assertion of a right.
- The Inspector failed to apply that test. Instead of assessing sufficiency over the whole 20 year period, she focussed on the 4 month intermission period and the extent to which the Order routes were used during that period: see OD/125-126. Furthermore, in so far as she considered the landowner's objective state of knowledge (at OD/126), she wrongly confined her consideration to his state of knowledge during the intermission period, instead of the whole 20 year period.
- The Claimant submitted that the Inspector erred in applying a de minimis test. At OD/116, the Inspector considered that "the crux of the matter" was "whether as a matter of fact there was a break in continuity of use which was more than de minimis so that there has not been actual enjoyment of the claimed routes for the full 20 years". She then went on to apply a de minimis test at OD/126 when she found:
"In my judgment, as a matter of fact and degree, this was not a short break that can be regarded as de minimis. It was a prolonged period where the Order paths were not actually enjoyed by the public."
- The Inspector's adoption of a de minimis test, beyond which time there would be a break in continuity of use, led the Inspector to focus on the 4 month period rather than the whole of the 20 year period. It also introduced a threshold test which was inconsistent with the authorities. The first reference to a de minimis test appeared in the judgment of Kerr J. in Roxlena 1, at [73], but his remarks were obiter dicta and the relevant authorities were not cited to him. The point was not considered by the Court of Appeal. It was then introduced into Version 2 of Advice Note 15, derived from Kerr J.'s judgment.
- In the light of the above submissions, the Claimant submitted that Version 1 of Advice Note 15 was correct. Version 2 was either wrong or at any rate confused, in particular by its introduction of the notion of a de minimis interruption or intermission, derived from Kerr J.'s obiter dicta in Roxlena 1.
Defendant's reasons for not contesting the claim
- On 16 October 2024, the Defendant wrote to the Administrative Court as follows:
"The Defendant has undertaken a further review of his position in this claim in light of the grant of permission to apply for judicial review and the pleadings filed since 1 August 2024. The Defendant no longer intends to contest this claim. The Defendant considers that the claim should succeed and that the Inspector's decision dated 10 April 2024 (by which the Inspector decided not to confirm the Cumbria County Council (Parish of Hayton: District of Carlisle) Definitive Map Modification Order (No 1) 2021) should be quashed. That would mean that the matter would fall to be redetermined.
The Defendant's reasons for not contesting the claim are as follows:
1. Section 31(1) of the Highways Act 1980 requires, inter alia, actual enjoyment for a full period of 20 years. This requires sufficient continuity of use during the 20 year period.
2. The courts have consistently identified that an important test for assessing whether there is sufficient continuity of use is to ask whether the reasonable landowner would understand that a right was being asserted against him and ought to be challenged if it was intended to be resisted: see for example Rowley v Secretary of State for Transport, Local Government and the Regions [2003] 2 P&CR 27 per Elias J at [6-7] (citing Hollins v Verney (1884) 13 QBD 304) and Lawrence v Fen Tigers [2014] AC 822 at [142]. Lawrence concerned prescription and private rather than public rights, but as Elias J observed in Rowley, a similar principle applies to cases where a public right is being asserted. Case law on prescription is relevant given that section 31(1) of the 1980 Act is derived from section 1 of the Rights of Way Act 1932, which in turn is based on the wording of the Prescription Act 1832 (see R v Oxfordshire County Council ex p. Sunningwell Parish Council [2000] 1 AC 335 at 353D-E per Lord Hoffmann).
3. In the present case, the Inspector considered the issue of actual enjoyment for a full period of 20 years at paragraphs 104 – 131 of her decision letter. The Inspector's findings included the following:
a. The Inspector found that there was a period of non-use of "at least four months" within the 20 year period (paragraphs 124 – 125).
b. The period of non-use occurred when statutory restrictions imposed in response to foot and mouth disease were in force. The Inspector found at paragraphs 108 – 110 that the statutory restrictions imposed in response to foot and mouth disease did not directly apply to the Order routes in question, but that "in all likelihood" passage along most of the Order routes "would have been prevented by the closure of the three public paths" (paragraph 110).
c. The Inspector found that Cumbria was severely affected by the foot and mouth outbreak, with the impact "acutely felt" by the community in the locality of the Order routes, and "In this climate, residents were highly conscious of the risks of disease spread through people movement in rural areas and keen to act responsibly" (paragraph 106).
4. The Inspector relied on the period of non-use to conclude that the requirement of actual enjoyment for a full period of 20 years was not met (paragraphs 125 – 127). At paragraph 126, the Inspector stated that "Moreover, from the landowner's perspective the public use had stopped and so they could not reasonably know that a continuous right to enjoyment was being asserted that ought to be resisted".
5. In light of the Inspector's findings at 3a-c above, the Defendant accepts that it was not reasonably open to the Inspector to find that the reasonable landowner could not know that a continuous right to enjoyment was being asserted that ought to be resisted. The Defendant accepts that, in all the circumstances, a reasonable landowner would consider that the period of non-use was due, directly or indirectly, to the foot and mouth restrictions.
6. Under Ground 1, the Claimant alleges inter alia that "No reasonable landowner would conclude, from absence of public use in the period of restrictions, that the public assertion of the right (as demonstrated by public use in the rest of the period) had been withdrawn" (Statement of Facts and Grounds, para. 44(ii)). The Defendant accepts the correctness of that statement, on the facts of the present case.
7. The Defendant further accepts that this error means that the Inspector's conclusion that there was no actual enjoyment for a full period of 20 years (paragraphs 127, 208) cannot stand.
8. For those reasons, the Inspector erred in law. The error was material to the Inspector's decision. Accordingly, the Defendant agrees that the claim should succeed and that the decision should be quashed.
9. For the avoidance of doubt, the Defendant makes no further concessions in respect of the grounds of claim."
Roxlena's submissions
- Roxlena submitted that the critical issue in this claim was to appreciate that whether a way over land has been "actually enjoyed by the public … for a full period of 20 years" is a discrete and objective question of fact, which is separate and conceptually distinct from the question of whether any given cessation of user in that period amounts to an "interruption".
- Whether or not the way has been "actually enjoyed" by public is an evaluative question of fact for the Inspector. The cause or purpose of the cessation of user is not relevant. In contrast, when determining whether there has been an interruption, consideration of the cause and effect of the interruption is required.
- In considering the Inspector's Order Decision, the Court should start from the presumption that an expert planning inspector has interpreted government policy correctly and taken all of it into account, absent some positive contrary indication. Decisions of inspectors are to be construed in a reasonably flexible way, without hypercritical scrutiny.
- The Claimant's challenge on Ground 1 amounts to a submission that the Inspector acted irrationally in finding that the four month break was sufficient to preclude a finding that the way had been continuously enjoyed for the 20 year period. That argument is hopeless. The ways remained available to be enjoyed; indeed one witness, Mr King, chose to continue using them during the period of restrictions.
- The Claimant has wrongly conflated the distinction between the questions of intermission and interruption. The fact that the cause of the intermission was not "physical and actual" was irrelevant to the question whether it was capable of founding a finding that the use had not been continuous for 20 years. The fact that there may be an explanation for the intermission is irrelevant. If the explanation for the intermission was a relevant consideration, De Rothschild v Buckinghamshire County Council (1957) 8 P & CR 317 would not have been decided in the way that it was.
- Roxlena also submitted that if an intermission in user is to be disregarded for the purpose of evaluating whether a statutory qualifying period is made out, Parliament can do so expressly e.g. section 15(6) of the Commons Act 2006 which provides a disregard for periods when access to the land is prohibited by reason of any enactment. There is no similar provision in the HA 1980.
- On Ground 2, Roxlena submitted that, on a fair reading of the Order Decision as a whole, the Inspector did not assume that the use was automatically insufficient because the intermission was more than de minimis. The closest the Inspector comes to the reasoning the Claimant attributes to her is at OD/116. However, at OD/117 she summarised the principles to be applied in determining "actual enjoyment" under section 31(1) HA 1980 and did not treat a de minimis finding as the determinative issue. Her conclusion at OD/126-127 was that this was "a prolonged period where the Order paths were not actually enjoyed by the public" which "in the particular circumstances of this case" meant that use could not be described as continuous. The Inspector had regard to the full period of 20 years at OD/127. The Claimant's approach adopts an impermissible hypercritical scrutiny to the wording of the Order Decision.
- It can be presumed that the Inspector both understood and applied Version 2 of Advice Note 15: see Hopkin Homes and Jones v Mordue. However, the Advice Note is targeted towards the concept of an "interruption", not the question whether the public have actually enjoyed the way for a full period of 20 years.
- Roxlena submitted that there was no merit in the submission that the Inspector failed to address the overall question whether, in all the circumstances, the public's use had been such as to alert the reasonable landowner of the public's assertion of a right of passage. The Inspector expressly made that conclusion at OD/126.
Conclusions
Law
- The term prescription refers to rights over land obtained by long use or enjoyment.
- At common law, a right of way could be acquired by showing continuous enjoyment since time immemorial, deemed to be 1189. The doctrine of lost modern grant provided that, if a right of way had been enjoyed for at least 20 years without any other lawful explanation, it was presumed to have had its origin in a deed of grant made after 1189 which had been lost.
- The Prescription Act 1832 introduced additional forms of prescription based on 20 and 40 years use. Section 2 provided that no lawful claim to inter alia a way could be defeated, save on the grounds specified, "when such way or other matter … shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years". (emphasis added)
- The Rights of Way Act 1932 created a statutory presumption of dedication on the basis of 20 years past enjoyment by the public, as of right. Section 1(1) provided (so far as is material):
"1. Public use of way for twenty years conclusive that way is a public highway
(1) Where a way, not being of such a character that user thereof by the public could not give rise at common law to any presumption of dedication, upon or over any land has been actually enjoyed by the public as of right and without interruption for a full period of twenty years, such way shall be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate such way, or unless during such period of twenty years there was not at any time any person in possession of such land capable of dedicating such way." (emphasis added)
- Essentially the same provision (with immaterial changes) was enacted in section 31(1) HA 1980:
"31.— Dedication of way as highway presumed after public use for 20 years.
(1) Where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it." (emphasis added)
- The passages underlined demonstrate that the same statutory test was adopted in the Prescription Act 1832, the Rights of Way Act 1932 and the HA 1980, and so the case law interpreting that test under the earlier Acts informs the interpretation of section 31(1) HA 1980.
- In Merstham Manor Ltd v Coulsdon and Purley UDC [1937] 2 KB 77, Hilbery J. observed that "these words ... are reproductions of the language used in the Prescription Act, 1832", and that they fell to be interpreted in the same way as under that Act.
- Hilbery J. cited Hollins v Verney (1884) 13 QBD 304. He observed that earlier cases established that, for a right to be "enjoyed", it had to be "suffered" by the landowner, and there had to be "an opportunity of resistance and interruption". Importantly, he concluded, at 82, that:
"... I take the word 'enjoyed' to mean, as Stirling J said in Smith v Baxter, 'having had the amenity or advantage of using'."
- In my view, this interpretation of "actual enjoyment" is correct. It is not to be read restrictively so as to mean only actual use. As the authorities recognise, it would be impossible for a public footpath to be in continuous actual use, 24 hours a day.
- In Carr v Foster 3 QB 581, decided in 1842, a commoner used a right of common for pasture of his cattle for some 30 years, but in two of those years he had no commonable cattle and therefore made no use of the common. The landowners argued that this cessation of enjoyment defeated his claim but the jury entered a verdict for the commoner. The headnote states that "the "interruption" which defeats a prescriptive right under [the 1832 Act] is an adverse obstruction, not a mere discontinuance of user by the claimant himself". Lord Denman CJ said, at 587:
"I am of opinion that the thirty years' enjoyment was sufficiently made out. There must be some interval in the enjoyment of all such rights; and it must be a question for the jury, in each case, whether the right was, substantially, enjoyed for the requisite period. It has been ingeniously argued that a thirty years' enjoyment cannot have taken place where there has been a two years' intermission. But the words of sect. 1 are "without interruption," not "without intermission." And the intermission must be a matter open, in every case, to explanation. … where actual enjoyment is shewn before and after the period of intermission, it may be inferred from that evidence that the right continued during the whole time."
- Patteson J. said in his concurring judgment:
"It is always for the jury to say whether, during any intermediate part of the period, an actual enjoyment has been had. How many times the right has been exercised is not the material question, if the jury are satisfied that the claimant exercised it as often as he chose. It is suggested that the argument for the plaintiff might apply equally if there were a cesser for seven years. I am not prepared to say that it would not. It might be that, under the circumstances, the party had no occasion to use the right. The question would always be for the jury. So long an intermission would be a strong piece of evidence against the continued right: but it would be for them to determine."
- Williams J. added, at 588:
"I am of the same opinion. "Interruption" means an obstruction, not a cesser or intermission, or anything denoting a mere breach in time. There must be an overt act, indicating that the right is disputed. Before the statute, in cases relating to common, it was very usual to explain the ceasing to turn on cattle, by the fact that there were not, at the time, commonable cattle to turn on. No necessary inference arises from a cesser during two, three, or seven years. [589] In this particular case enjoyment for the requisite period was abundantly made out."
- These judgments give considerable support to the Claimant's submissions. They emphasise the distinction between an "interruption" and an "intermission". The length of the intermissions considered in the judgments are measured in years not months. They expressly refer to the relevance of the explanation for the intermission when considering whether actual enjoyment has been continuous. They confirm that "actual enjoyment" is to be assessed by reference to the relevant time period as a whole, both before and after the intermission. It is not disputed that Lord Denman and Patterson J. make it clear that determining the question of "actual enjoyment" is a matter of fact for the jury.
- In Hollins v Verney (1884) 13 QBD 304, a claim for a right of way which was only used by the defendant at approximately 12 year intervals, in order to cut wood, did not succeed. In the Court of Appeal, Lindley LJ reviewed a number of cases decided under the Prescription Act 1832 and concluded that it was not appropriate to draw a sharp line between long and short periods of non-user, nor to hold that non-user for a year or more was necessarily fatal (at 315). He summarised the statutory test (so far as was relevant to the case) at 315, as follows:
"It is sufficient for the present case to observe that the statute expressly requires actual enjoyment as of right for the full period of twenty years before action. No user can be sufficient which does not raise a reasonable inference of such a continuous enjoyment. Moreover, as the enjoyment which is pointed out by the statute is an enjoyment which is open as well as of right, it seems to follow that no actual user can be sufficient to satisfy the statute, unless during the whole of the statutory term (whether acts of user be proved in each year or not) the user is enough at any rate to carry to the mind of a reasonable person who is in possession of the servient tenement, the fact that a continuous right to enjoyment is being asserted, and ought to be resisted if such right is not recognised, and if resistance to it is intended."
- Lindley LJ confirmed that the question of "actual enjoyment" was a matter of fact for the jury to determine (at 309). The reference to the "whole of the statutory term (whether acts of user be proved in each year or not)" (emphasis added) supports the Claimant's analysis. So too does the requirement that "the user is enough …. to carry to the mind of a reasonable person … the fact that a continuous right to enjoyment is being asserted, and ought to be resisted if such right is not recognised".
- In Smith v Baxter [1900] 2 Ch 138, which concerned the actual enjoyment of the use of light under the Prescription Act 1832, Stirling J. held, at 145, that actual enjoyment was a matter of fact to be decided in the circumstances of the case. At 144, he explained that actual enjoyment cannot mean continuous use, and "I take enjoyed to mean having had the amenity or advantage of using".
- In Jones v Bates [1938] 2 All ER 237, the Court of Appeal explained the meaning of the term "interruption" in section 1(1) of the Rights of Way Act 1932, per Scott LJ at 246:
"The next requirement of the statute, "without interruption", means that the enjoyment of the right must not have been interrupted. If for the statutory period members of the public have used the way as of right, and their exercise of that right has in fact not been interrupted, then the statutory consequence follows. The word "interruption" must be given its proper import in its grammatical context. A mere absence of continuity in the de facto user proved will not prevent the statute from running. If that were not so, the necessary proof in public right-of-way cases would often break down - especially in the 40-years period - simply because witnesses were not available to fill all the gaps in such proof. No interruption comes within the statute unless it is shown to have been an interference with the enjoyment of the right of passage. The change of the law is that, upon proof of such user for 20 or 40 years, the conclusion of dedication follows as a presumption juris et de jure, instead of as an inference of fact to be drawn by the tribunal of fact."
- In Lewis v Thomas [1950] 1 KB 438, the Court of Appeal upheld the judgment of the County Court that periodically locking a gate across a way merely to prevent cattle damaging corn during the night, not to demonstrate to the public that there was no right of way, did not amount to an "interruption" under section 1(1) of the Rights of Way Act 1932, since the locking of the gate was not likely to interrupt, and did not in fact interrupt, the use of the way. Evershed MR referred to Scott LJ's judgment in Jones v Bates, and explained the potential relevance of the reason for a physical interruption of the way:
"On the other hand, in my judgment the presence or absence of a challenge may well be a relevant circumstance in deter-mining whether in truth there has been interruption in fact. The illustration was given during the course of the argument of a road which was interrupted and entirely blocked by some broken-down vehicle so that nobody could pass along it at all. It is obvious that in such a case no court would hold that there was such an interruption as was intended by the section. In the forming of that conclusion, the circumstances in which the barring of the way took place and the complete absence of any intention to stop anybody from going along it would, I think, be a relevant circumstance."
- In Fernlee Estates Ltd v City and County of Swansea [2001] EWHC Admin 360, Scott Baker J. summarised the effect of the case law on "interruption" at [16]:
"16. In order to constitute an interruption for the purposes of Section 31 (1) of the Highways Act 1980 there must be some physical and actual interruption which prevents enjoyment of the way rather than merely acts which challenge the user while allowing it to go on: Merstham Manor Ltd v Coulsdon and Purley [1937] 2 KB 77, 84–85. A mere absence of continuity in the de facto user will not stop time running, there must be interference with the enjoyment of a right of passage, Jones v Bates [1938] 2 All ER 237, 246. Thirdly, "interruption" means "interruption of fact." However, the circumstances of and the intention with which the barring of the way takes place are relevant. For example, the blocking of a road by a broken down vehicle would not amount to a relevant interruption. Lewis v Thomas [1950] 1 KB 438."
- Lawrence v Fen Tigers Ltd was an action for noise nuisance caused by motor sports where the landowner unsuccessfully claimed that he had acquired by prescription an easement to carry on an activity which would otherwise cause an actionable nuisance. In the Supreme Court, Lord Neuberger cited Carr v Foster at [37]:
"37. …to justify a prescriptive right, the 20 years use does not have to be continuous: see Carr v Foster (1842) 3 QB 581, 586—588, per Lord Denman CJ, Patteson and Williams JJ. It is worth noting that Patteson J. was prepared to accept that an interruption of even seven years might not destroy the claim to have acquired a right by prescription over 20 years. "
- Lord Neuberger then gave guidance on periods of non-use or inactivity, at [140] – [141]:
"140 The third question is whether the judge went wrong in holding that the respondents had failed to establish a right by prescription to create what would otherwise be a nuisance of noise at the stadium. On that topic, I consider that the judge was right for the wrong reason. I do not consider that he was entitled to hold that the interruption for two years prevented the respondents obtaining the right to create what would otherwise be a nuisance of noise if they had otherwise satisfied the requirements for establishing such a right. If a person regularly causes a nuisance by noise through holding motocross events more than 20 times a year for a period of 20 years, save that during two years of that period, there are no such events, I consider that the requirements of a prescriptive right would be satisfied (subject, of course, to there being any of the normal defences).
141 In that connection, I have already referred in para 37 above to the judgments in Carr v Foster 3 QB 581. Mere non-use, or inactivity, for two out of 20 years, at least in the absence of other evidence, would be insufficient to justify a court concluding that an action which has been carried out for the other 18 years fairly consistently and to a significant extent in each of those years failed to justify the conclusion that a prescriptive right had been established. It is a question of degree, and that is shown by contrasting the facts of the present case and of Carr with those of White v Taylor (No 2) [1969] 1 Ch 160, where non-use for two periods, each more than five years, did defeat a prescription claim."
- At [142] Lord Neuberger set out the principle which is at the heart of the Claimant's case:
"142 The essential question in a prescription case has been said to be whether the nature and degree of the activity of the putative dominant owner over the period of 20 years, taken as a whole, should make a reasonable person in the position of the putative servient owner aware that a continuous right to enjoyment is being asserted and ought to be challenged if it is intended to be resisted: see Gale, para 4-54, and per Lord Walker JSC in Lewis [2010] 2 AC 70, para 30."
- In Wright v DEFRA [2016] EWHC 1053 (Admin), Ouseley J. set out the same principle in the penultimate sentence at [21]:
"21. The relevant law is not contentious. Mann v Brodie (1885) 10 App. Cas. 378 shows that use must be by a sufficient number of people to show that it was use by the public, a number which may vary from case to case. R (Lewis) v Redcar and Cleveland Borough Council [2010] UKSC 11, [2010] 2 AC 70, and others cited in it, deal with the quality of the user. The use had to be sufficient to bring home to the mind of the reasonable non-absentee landowner that the public were asserting a continuous right to use each route in question. The user over the twenty-year period did not have to be by the same people." (emphasis added).
"Intermission" and "interruption"
- Applying the authorities set out above, both parties agreed that whether a way over land has been actually enjoyed by the public for a full period of 20 years is a question which is separate from the question whether any cessation of use in that period amounts to an "interruption".
- "Mere absence of continuity" or an "intermission", does not stop time running for the purposes of the 20 year period or prevent the operation of the statute. However, the use over the whole of the 20 year period must be sufficient to make a reasonable landowner aware that a public right of way is being asserted, and ought to be challenged, if it is intended to be resisted, applying an objective test.
- "Interruption", within the meaning of section 31(1) HA 1980, requires a positive act, a "physical and actual" interruption, which interferes with the enjoyment of the way. It is not a mere intermission in use by the public. The circumstances of the interruption are relevant to the question whether there is an intention by the landowner to challenge the public's enjoyment of the way. In the case of foot and mouth restrictions, it is likely to be highly relevant if restrictive notices were put in place, not with the intention on the part of the landowner to prevent the public from using the way, but in observance of the legal restrictions being put in place temporarily for public health reasons.
- Roxlena submitted that whether or not the way has been actually enjoyed by the public for a full period of 20 years is a question of fact for the Inspector, which may only be challenged on Wednesbury grounds. Dr Bowes cited, by way of analogy, the proposition to that effect in Naylor v Essex County Council [2014] EWHC 2650 (Admin), per John Howell KC sitting as a Deputy Judge of the High Court, at [74], in the context of section 15 of the Commons Act 2006.
- In my view, it is apparent from the earliest authorities, such as Carr v Foster and Hollins v Verney, that determination of the question of "actual enjoyment" was a matter of fact for the jury. In modern times, an inspector will make findings of fact on the evidence before him. However, I agree with the Claimant's submission that, in reaching a determination, an inspector must evaluate the facts against the applicable legal test. It is therefore necessary to identify the correct legal test. If the inspector has not applied the correct legal test, there will be a legitimate ground of challenge based upon a misdirection in law.
- Roxlena also submitted that, in determining the question of "actual enjoyment", the cause or explanation of a cessation in user is irrelevant. In support of that submission Dr Bowes relied upon the principle that the subjective state of mind of the users is irrelevant in this field of law, confirmed in R v Oxfordshire CC ex parte Sunningwell Parish Council [2000] 1 AC 335. Lord Hoffmann said, at 355H – 356B:
"My Lords, in my opinion the casual and, in its context, perfectly understandable aside of Tomlin J. in Hue v. Whiteley [1929] I Ch. 440 has led the courts into imposing upon the time-honoured expression "as of right" a new and additional requirement of subjective belief for which there is no previous authority and which I consider to be contrary to the principles of English prescription. There is in my view an unbroken line of descent from the common law concept of nec vi, nec clam, nec precario to the term "as of right" in the Acts of 1832, 1932 and 1965. It is perhaps worth observing that when the Act of 1832 was passed, the parties to an action were not even competent witnesses and I think that Parke B. would have been startled by the proposition that a plaintiff asserting a private right of way on the basis of his user had to prove his subjective state of mind. In the case of public rights, evidence of reputation of the existence of the right was always admissible and formed the subject of a special exception to the hearsay rule. But that is not at all the same thing as evidence of the individual states of mind of people who used the way. In the normal case, of course, outward appearance and inward belief will coincide. A person who believes he has the right to use a footpath will use it in the way in which a person having such a right would use it. But user which is apparently as of right cannot be discounted merely because, as will often be the case, many of the users over a long period were subjectively indifferent as to whether a right existed, or even had private knowledge that it did not. Where Parliament has provided for the creation of rights by 20 years' user, it is almost inevitable that user in the earlier years will have been without any very confident belief in the existence of a legal right. But that does not mean that it must be ignored…."
- In London Tara Hotel Limited v Kensington Close Hotel Limited [2011] EWCA Civ 1356, Lewison LJ addressed this issue at [60] – [62]:
"60. It is clear on high authority that the subjective state of mind of the person exercising the claimed right is irrelevant. The subjective state of mind of the owner is equally irrelevant. In Sunningwell Lord Hoffmann (p. 352) cited with approval the statement by Lord Blackburn in Mann v Brodie (1885) 10 App Cas 378, 386 that:
"…where there has been evidence of a user by the public so long and in such a manner that the owner of the fee, whoever he was, must have been aware that the public were acting under the belief that the way had been dedicated, and has taken no steps to disabuse them of that belief, it is not conclusive evidence, but evidence on which those who have to find the facts may find that there was a dedication by the owner whoever he was."
61. As Lord Hoffmann went on to explain, Lord Blackburn was:
"concerning himself, as the English theory required, with how the matter would have appeared to the owner of the land."
62. He went on to say (p. 354) that:
"I rather doubt whether, in explaining this term parenthetically as involving a belief that they were exercising a public right, Tomlin J meant to say more than Lord Blackburn had said in Mann v Brodie, 10 App.Cas. 378, 386, namely that they must have used it in a way which would suggest to a reasonable landowner that they believed they were exercising a public right. To require an inquiry into the subjective state of mind of the users of the road would be contrary to the whole English theory of prescription, which, as I hope I have demonstrated, depends upon evidence of acquiescence by the landowner giving rise to an inference or presumption of a prior grant or dedication.""
- Roxlena relied upon De Rothschild v Buckinghamshire County Council ...1957) 8 P & CR 317 to illustrate its submission that the reason for any cessation of user is irrelevant. In that case, a path across a stud farm was used by the public between 1891 and 1914, at which time the owner erected a padlocked gate at one end. The public forcibly removed the gate and continued to use the path. Between 1940 and 1947, the land was "held by the Crown under requisition for war purposes by virtue of emergency powers". In 1948, the land was returned to its owners who erected a notice indicating that there was no right of way. The Divisional Court found that there was insufficient evidence of user to presume dedication for a 20 year period before 1914, or for a 20 year period before 1948. The Court also allowed the appeal on the ground that any statutory presumption of dedication was rebutted because, on the evidence, the landowner did not at any time intend to allow the public to enjoy a right of way.
- Roxlena submitted that this case is authority for the proposition that the explanation for the intermission is irrelevant . In Rothschild, the Council, which was seeking to register the footpath, submitted to the Court that "where one has a requisition which prevents the public from using a right of way, that period of requisition should be ignored" in calculating the 20 year period. It seems likely that the Council's submission was based upon factors specific to the compulsory transfer of ownership of land under war time emergency powers. It is not entirely clear from the judgments how the Court dealt with that submission. However, I note that Advice Note 15 (Version 1) distinguishes between temporary closures during the foot and mouth epidemic and war time requisitions of land, stating:
"6. Requisitioning of land under wartime measures effectively displaced the owners' interest in the land. As the requisitioning authorities obtained simply a right of possession there was, in effect, no-one who had the power to dedicate a right of way over the land during the period of requisition. On the other hand, closure of land under the Foot and Mouth Disease Order did not displace ownership."
- Similar guidance was given in Version 2 of Advice Note 15, at 3.9 - 3.10, which advised that "the Planning Inspectorate and DEFRA take the view that there is no direct correlation with the temporary closures enforced during the foot and mouth epidemic" because requisitioning of land under wartime measures meant there was no one with the power to dedicate a right of way over the land. It concluded:
"That approach is distinctly different to the implementation of restrictions on access under the Foot and Mouth Disease Order."
In my view, Rothschild turns on its own unusual facts and the legal consequences of requisition. It is distinguishable from this case.
- I accept the submissions of the Claimant on this issue. The Claimant accepts and avers the principle that the subjective state of mind of members of the public and the landowner are irrelevant. The Claimant correctly submits that the question is how the conduct of the person asserting the right would appear to the putative landowner. In considering that question, objectively ascertainable facts which place the public's conduct in context (e.g. that there was a flood which prevented them from using the way) will be relevant to answer the objective question of how the reasonable landowner would consider the matter. There is no rational reason to exclude such evidence, and the Inspector did not do so in the Inquiry.
- The authorities support the Claimant's submission. In Carr v Foster, the Court took into account the evidence that the intermission of two years arose because the commoner had no commonable cattle. Lord Denman CJ expressly stated that "the intermission must be a matter open in every case, to explanation" by the jury (emphasis added), at 587. In considering a possible intermission of 7 years, Patteson J. did not rule it out stating "it might be that, under the circumstances, the party had no occasion to use the right", thus envisaging that an explanation might be given. The approach taken in Carr v Foster was approved by the Supreme Court in Lawrence v Fen Tigers Ltd, per Lord Neuberger at [37] and [141]. In Hollins v Verney, at 313-314, Lindley LJ said "if a user for more than twenty or thirty years, as the case may be, is proved a non-user for more than a year ….may be so explained as to warrant a jury in finding an actual enjoyment for the statutory period, as the jury in fact did in Carr v Foster." (emphasis added).
- Roxlena drew a distinction between situations where the land is not available for enjoyment for practical reasons, such as flooding, and where the land is available for enjoyment, but members of the public choose not to enjoy it. Where the way is available for use, the intermission in user may lawfully inform a finding that the way has not been actually enjoyed. In my judgment, the authorities do not support any such distinction in law. The reason for an intermission in the user of the way, including whether or not the way is available, is likely to be relevant information in determining whether or not the way has been actually enjoyed for the prescribed period and whether there has been an interruption. Each case will be determined on its own facts.
The judgment of Kerr J. in Roxlena 1
- Roxlena 1 concerned an earlier stage in the process of determining what footpaths existed in Hayton Woods. As I have explained at paragraph 8 above, Roxlena brought a claim for judicial review to challenge the County Council's order, dated 4 January 2017, to add footpaths and a bridleway to the DMS. The claim was dismissed by Kerr J., and on appeal by the Court of Appeal.
- Roxlena relied on four grounds of challenge:
i) Ground 1: insufficient evidence of route alignment.
ii) Ground 2: insufficient evidence of actual enjoyment without interruption.
iii) Ground 3: discovery of evidence.
iv) Ground 4: sufficiency of evidence on the bridleway.
- Kerr J. summarised Roxlena's submissions on Ground 2 in his judgment at [70] – [71]:
"70. The second ground of challenge is that without a further enquiry, which the council irrationally failed to make, there was insufficient evidence to support the committee's decision that it was reasonable to allege that there had been uninterrupted enjoyment of the footpaths in question, i.e. the routes, for a 20 year period from 1990 to 2010, applying the test in section 31(1) of the 1980 Act.
71. Mr Laurence's submissions to support the second ground were in summary the following:
(1) The council should have had in mind the proposition, to quote from his skeleton argument, that "people who fill in evidence forms frequently do so without recalling periods when their use was interrupted, especially if the period of non-use was owing to some external event which may or may not have caused the landowner to take steps of his own to prevent use".
(2) The council's report in 2002 into the effect of the foot and mouth outbreak referred to "the closure of the countryside" and noted that many normal visitors to the countryside stayed away. The conflict of evidence between those who filled in UEFs asserting uninterrupted use of the routes, and those who asserted that there an interruption in use of the routes, should be seen in that light.
(3) The claimant accepts that if there were a real conflict of evidence, the council was entitled to take the view that the claimed footpaths were reasonably alleged to subsist (R. v. Secretary of State for Wales ex p. Emery, CA, unreported, 9 July 1997, per Roch LJ at transcript pp.21-26). The question for the council is whether the totality of the evidence shows "that it is reasonable to allege a right of way" (ibid. at p.25).
(4) There was no question on the UEF specifically asking about the impact of the foot and mouth outbreak in 2001 on use of the routes. UEFs were completed by 70 persons, only 13 of whom mentioned the foot and mouth outbreak. Of the 57 who did not mention it, only 40 attested to uninterrupted use of the routes since 1990. The other 17 said their use started after 2001 when the foot and mouth outbreak was already over.
(5) Of the 13 persons who mentioned the foot and mouth outbreak, a number said that it influenced them against use of the routes during the outbreak. Some 4 or 5 deponents who said their use began in or before 2001 did not answer the question whether there was a temporary interruption in their use for any reason. Nine of those who said their use began before 2001 said they would not take part in a public inquiry.
(6) Faced with that evidence, and other evidence flatly denying uninterrupted use since 1990, no reasonable council could have done other than enquire further of the 40 persons attesting to uninterrupted use since 1990; for example, by writing a letter along the lines of one drafted and included in the claimant's skeleton.
(7) Failure to make this enquiry was a failure to investigate the issue properly and was irrational, such that it was not lawfully open to the council to answer yes to the question articulated in Emery: whether the totality of the evidence shows that it is reasonable to allege a right of way."
- The submissions made by the County Council were summarised in the judgment at [72]:
"72. Mr Evans, for the council, submitted in response:
(1) that the duty to "investigate the matters stated in the application" (paragraph 3(1)(a) of Schedule 14 to the 1981 Act) was fully performed. There was no authority or warrant for the claimant's argument that the authority was obliged to try to resolve the conflict of evidence. The forum for resolving it is before the inspector at an inquiry.
(2) The council was not required by law to start from the proposition that the evidence in the UEFs was unreliable due to a tendency not to recall periods of interruption in use of the routes, especially if caused by an external event. The duty was fully performed by obtaining the UEFs and they were properly considered by officers and members at the meeting on 4 January 2017.
(3) A temporary cessation of use due to the foot and mouth outbreak, even if more than de minimis, would not in law amount to an interruption in use. There is an inspector's decision to that effect in a case known as the Marble Quarry case.
(4) This also accords with government advice in an "Advice Note" of November 2012 which states at paragraph 9:
"… it does not seem that the temporary cessation of use of ways solely because of the implementation of measures under the Foot and Mouth Disease Order 1983 could be classified as an 'interruption' under section 31(1) [of the 1980 Act]"."
- Kerr J. then continued as follows:
"73. I do not agree with the proposition in the Advice Note, and that derived from the Marble Quarry decision, that an interruption which is more than de minimis but caused by measures taken against foot and mouth disease, is incapable in law of amounting to an interruption in use of a footpath or other way. I see no basis for that proposition. Use or non-use is a question of fact; the cause of any non-use is not the issue.
74. But in my judgment, there was plenty of evidence available to the council entitling it to conclude, without further enquiry, that it was reasonable to allege a right of way. The exercise the council had to perform was not to make a finding of fact; it was sufficient to identify evidence making it reasonable to allege that the rights of way subsist. The council did that by looking at the content of the UEFs."
- Kerr J. dismissed the claim on all four grounds. The Court of Appeal dismissed Roxlena's appeal. At the appeal, the correctness of Advice Note 15 Version 1 was not put in issue. The Court noted, at [50], without comment, that Kerr J. "did not accept the view stated in the Planning Inspectorate Advice Note that an interruption of use caused by measures put in place to restrict the use of footpaths during an outbreak of foot and mouth disease was incapable of law of amounting to an interruption in use (paragraph 73)".
- I agree with the Claimant's submission that paragraph 73 of Kerr J.'s judgment is obiter dicta. The ratio of his decision was that there was sufficient evidence available to the Council entitling it to conclude, without further enquiry, that it was reasonable to allege that the rights of way subsisted (the statutory test under section 53(3)(c) WCA 1981). Nonetheless, paragraph 73 was cited in Advice Note 15 Version 2 and by the Inspector in this case at OD/111 and so I have to address it.
- Regretfully, I have concluded that Kerr J.'s observations were liable to mislead readers, for the following reasons.
- Kerr J. was not referred to any of the relevant authorities. Version 1 of Advice Note 15 was very brief. It did not set out the law, nor the rationale for its conclusion.
- In the absence of the authorities, Kerr J. perhaps understandably did not appreciate that section 31(1) HA 1980 required consideration of two separate questions: (1) whether there was "actual enjoyment … for the full period of 20 years" and (2) whether the enjoyment of the right had been interrupted.
- Kerr J. only referred to "interruption" at [73]. Dr Bowes suggested that he perhaps meant "intermission" not "interruption", but it seems to me more likely that he intentionally referred to "interruption" because that was the term used in Advice Note 15 Version 1 and section 31(1) HA 1980.
- His attention was not drawn to the question whether there had been "a mere absence of continuity in the de facto user proved" which would "prevent the statute from running" (Jones v Bates).
- He was not referred to Carr v Foster, as approved in Lawrence v Fen Tigers Ltd, at [37] and [41], in which Lord Denman CJ said that "there must be some interval in the enjoyment of all such rights; and it must be a question for the jury, in each case, whether the right was, substantially, enjoyed for the requisite period …. the words of sect.1 are "without interruption" not "without intermission". And the intermission must be a matter open, in every case, to explanation….".
- Nor was he referred to Wright v DEFRA and Lawrence v Fen Tigers Ltd which confirm that the essential question in a prescription case is whether a reasonable landowner would be aware that the public were asserting a continuous right to use the way.
- If Kerr J. had been referred to the authorities, he would have appreciated that the de minimis principle was not applied in any of them, either under question 1 (actual enjoyment) or 2 (interruption). It was not mentioned in the Marble Hill inspector's decision, nor in Advice Note 15 Version 1. When applied as a benchmark on question 1 (as the Inspector did in this case), it marks a significant departure from the position established by the authorities referred to above. It may also be misapplied in support of the mistaken proposition that any intermission in use that is "more than de minimis" will automatically amount to a break in actual enjoyment and/or an interruption within the meaning of section 31(1) HA 1980.
- Advice Note 15 Version 1 concluded that "it does not seem that the temporary cessation of use of ways solely because of the implementation of measures under the Foot and Mouth Disease Order 1983 could be classified as an "interruption" under section 31(1)". I share Kerr J.'s disquiet at the rather sweeping proposition that such measures were "incapable in law" of amounting to an interruption when each case requires a fact-sensitive judgment. However, if Kerr J. had had the benefit of considering the authorities on interruption, he may well have expressed his views in a more nuanced way, recognising that the legal test for interruption would probably not be met in such cases.
- For example, in Fernlee Estates Ltd v City and County of Swansea [2001] EWHC Admin 360, Scott Baker J. said at [16]:
"16. In order to constitute an interruption for the purposes of Section 31 (1) of the Highways Act 1980 there must be some physical and actual interruption which prevents enjoyment of the way rather than merely acts which challenge the user while allowing it to go on: Merstham Manor Ltd v Coulsdon and Purley [1937] 2 KB 77, 84–85….."interruption" means "interruption of fact." However, the circumstances of and the intention with which the barring of the way takes place are relevant. For example, the blocking of a road by a broken down vehicle would not amount to a relevant interruption. Lewis v Thomas [1950] 1 KB 438."
- Williams J. said in Carr v Foster, at 588:
"I am of the same opinion. "Interruption" means an obstruction, not a cesser or intermission, or anything denoting a mere breach in time. There must be an overt act, indicating that the right is disputed."
- The circumstances of the interruption are relevant to the question whether there is the required intention by the landowner to challenge the public's enjoyment of the way. As Advice Note 15 Version 2 observes, at paragraphs 3.7 and 3.8, foot and mouth restrictions were widely applied, they were not instigated by the landowner, and did not necessarily relate to a claimed route. Notices were put in place, not with the intention by the landowner of preventing the public from using the way, but in observance of the public health restrictions for a limited period only.
- Finally, Kerr J.'s observation that "Use or non-use is a question of fact; the cause of any non-use is not the issue" is, in my view, incorrect in so far as it is intended to exclude consideration of the cause of any non-use, in respect of both question 1 (actual enjoyment) (see paragraphs 86 - 88 above) and question 2 (interruption) (see paragraphs 105 - 107 above).
Guidance
- The Claimant invited me to hold that Version 1 of Advice Note 15 was correct. Version 1 was superseded by Version 2, and both versions have been permanently withdrawn since November 2024. I consider that it would be inappropriate for me to make any order in respect of guidance which is obsolete. However, I have set out my views on the content of Version 1 of Advice Note 15 at paragraphs 97, 104 and 107 above.
- Version 2 of Advice Note 15 states that it "takes into consideration" the comments of Kerr J. in Roxlena 1. It states at paragraph 3.2:
"During the relevant 20 years before a way is brought into question, section 31(1) requires use to have continued "without interruption". Whilst the frequency of use will vary in every case, a 3-month period where use by the public ceases is unlikely to be regarded as de minimis in terms of the length of time of non-use."
- As I have already stated, the authorities prior to Roxlena 1 did not include any reference to a de minimis test. When applied as a benchmark on the question of actual enjoyment, it marks a significant departure from the position established by the authorities. It may also be misapplied in support of the mistaken proposition that any intermission in use that is "more than de minimis" will automatically amount to a break in actual enjoyment and/or an interruption within the meaning of section 31(1) HA 1980. Version 2 of Advice Note 15 does not address these propositions in terms. However, unlike Kerr J.'s judgment, it does go on to consider the authorities and the established criteria for an effective interruption to be found, and seeks to apply them to foot and mouth restrictions which affect public use of ways during a 20 year period. As both parties have observed, it does not clearly distinguish between the question whether there has been "actual enjoyment" during the 20 year period, and the question whether there has been an "interruption" of that period, which is liable to lead to confusion.
The Inspector's decision
- The Inspector applied a de minimis test to question 1 (actual enjoyment), in the light of the judgment of Kerr J. in Roxlena 1 and Version 2 of Advice Note 15. For the reasons I have already explained, I consider that the de minimis test is inconsistent with the authorities prior to Roxlena 1 (paragraphs 103 and 111 above).
- At OD/116, the Inspector considered that "the crux of the matter" was "whether as a matter of fact there was a break in continuity of use which was more than de minimis so that there has not been actual enjoyment of the claimed routes for the full 20 years". In my view, the words "so that", which I have emphasised, clearly indicate her erroneous reasoning that a break in use which was more than de minimis would result in a finding that actual enjoyment had ceased.
- At OD/117 the Inspector summarised the principles applicable to an assessment of "actual enjoyment" under section 31(1) HA 1980, and added that it is "undisputed that a short period of non-use which is de minimis (i.e. too small to be considered) would not affect the running of time". I agree with Dr Bowes that this summary did not repeat the error in OD/116.
- At OD/126, the Inspector correctly directed herself that "mere cessation of use may not break continuity of actual enjoyment". However, she then went on to apply the de minimis test at OD/126 when she found:
"In my judgment, as a matter of fact and degree, this was not a short break that can be regarded as de minimis. It was a prolonged period where the Order paths were not actually enjoyed by the public."
Here she drew the distinction between, on the one hand, "a short break that can be regarded as de minimis" and on the other hand, "a prolonged period where the Order paths were not actually enjoyed by the public". On my reading, she was applying the erroneous formulation of the applicable test, set out at OD/116, namely, that a break in use which is more than de minimis will result in a finding that actual enjoyment had ceased.
- I have carefully considered whether and to what extent the Inspector's application of the de minimis test resulted in a flawed approach which was capable of affecting the outcome.
- The Inspector evaluated the evidence of use and actual enjoyment during the 4 month period at some length, so she did not make the mistake of assuming that, as the break was more than de minimis, it automatically amounted to a break in the continuity of actual enjoyment, and therefore no further evaluation was required.
- By identifying "the crux of the matter" as the difference between a short de minimis period of non-use and a longer period of non-use, the Inspector used the de minimis period as a very low benchmark against which she assessed the period of non-use. In my view, this approach is likely to have steered her towards characterising the 4 month period as "a prolonged period", in contrast to many of the authorities which find "actual enjoyment" continuing during intermissions measured in years, rather than months, without reference to a benchmark of a de minimis period.
- The Inspector's adoption of a de minimis test also led her to focus solely on the 4 month period, rather than the whole of the 20 year period, as required by the authorities. This meant that she failed to make an evaluative judgment as to whether there was nonetheless an actual enjoyment of the ways over the 20 year period, looked at as a whole. It was significant that Roxlena conceded at the Inquiry that "members of the public used all the routes shown in the Order over the relevant 20-year period and on the regularity claimed" save for 4 months during the foot and mouth disease restrictions in 2001 (OD/86). If the Inspector had applied the correct test, she may well have concluded that a 4 month period was a relatively short period when considered in the context of 20 years of claimed actual enjoyment.
- In adopting a de minimis test and applying it in this way, the Inspector failed to apply the guidance in the earlier authorities, for example:
i) Carr v Foster, per Lord Denman CJ, at 587: "I am of opinion that the thirty years' enjoyment was sufficiently made out. There must be some interval in the enjoyment of all such rights; and it must be a question for the jury, in each case, whether the right was, substantially, enjoyed for the requisite period. It has been ingeniously argued that a thirty years' enjoyment cannot have taken place where there has been a two years' intermission. But the words of sect. 1 are "without interruption," not "without intermission." And the intermission must be a matter open, in every case, to explanation. … where actual enjoyment is shewn before and after the period of intermission, it may be inferred from that evidence that the right continued during the whole time." (emphasis added);
ii) Hollins v Verney, per Lindley LJ at 315: "….no actual user can be sufficient to satisfy the statute, unless during the whole of the statutory term (whether acts of user be proved in each year or not) the user is enough at any rate to carry to the mind of a reasonable person …. The fact that a continuous right to enjoyment is being asserted, and ought to be resisted if such right is not recognised, and if resistance to it is intended." (emphasis added);
iii) Laurence v Fen Tigers Ltd, per Lord Neuberger at 141: "I have already referred in para 37 above to the judgments in Carr v Foster 3 QB 581. Mere non-use, or inactivity, for two out of 20 years, at least in the absence of other evidence, would be insufficient to justify a court concluding that an action which has been carried out for the other 18 years fairly consistently and to a significant extent in each of those years failed to justify the conclusion that a prescriptive right had been established. It is a question of degree, and that is shown by contrasting the facts of the present case and of Carr with those of White v Taylor (No 2) [1969] 1 Ch 160, where non-use for two periods, each more than five years, did defeat a prescription claim."
- Furthermore, in Wright v DEFRA and Lawrence v Fen Tigers Ltd the Courts confirmed that the essential question in a prescription case was whether the public's use of the way was such as to alert a reasonable landowner of the public's assertion of a right of passage, so that he could challenge it, if he wished to resist it.
- The Inspector's only treatment of this issue was in the final sentence of OD/126 where she stated:
"Moreover, from the landowner's perspective the public use had stopped and so they could not reasonably know that a continuous right to enjoyment was being asserted that ought to be resisted."
- The Inspector asked herself the wrong question, by focussing on the landowner's objective state of knowledge during the 4 month intermission, instead of his objective state of knowledge over the whole 20 year period. The reason why a "mere absence of continuity" or an intermission does not defeat the claim under section 31(1) HA 1980 is precisely that it is not necessary to show that the use during the period of an intermission is in and of itself sufficient to alert the landowner. It is only necessary to show that the overall use in the 20 year period is sufficient to have this effect, taking account of such breaks as may have occurred.
- The Inspector found the following facts, at OD/121-126:
i) Hayton and the surrounding area was severely affected by the foot and mouth outbreak in 2001.
ii) Residents were highly conscious of the risk of disease spreading through people movement in rural areas and they were keen to act responsibly.
iii) Measures were imposed to stop the spread. The Foot-and-Mouth Disease (Amendment)(England) Order 2001 came into force on 27 February 2001. The order gave power to inspectors appointed by the Ministry of Agriculture, Fisheries and Food (or a local authority) to close public footpaths and prohibit entry onto land by displaying, or causing to be displayed, a notice to that effect at every entrance to the land.
iv) Public access to the three existing public rights of way crossing Hayton Woods was prohibited by order made by Cumbria County Council on 28 February 2001.
v) Such restrictions did not directly apply to the Order routes as they were not dedicated public highways.
vi) The woods remained accessible from the public highway at points 8 and 9.
vii) Use of the Order routes must have been affected by the closures where they connected with the existing foot paths which were closed. Use of many of the paths would necessitate a person re-tracing their steps. Some sections lying in between the public paths would have been inaccessible altogether.
viii) Given the network of inter-linking paths, the availability of the Order routes for walkers would have been limited. In all likelihood, the passage along most of them would have been prevented by the closure of the three public paths.
ix) Closure of the three public paths clearly had a deterrent effect and people kept out of the woodland.
x) All but one of the witnesses gave evidence that they did not enter the woods while the restrictions were in place. One witness continued to use them throughout.
- I also observe that, although access to the three public rights of way was prohibited by foot and mouth restrictions, it would have been obvious to the landowner that these were temporary restrictions only, and would not affect their status as public footpaths.
- In the light of the Inspector's findings, summarised above, I accept the submission made by the Claimant that no reasonable landowner would conclude, from the absence of public use in the period of restrictions, that the public assertion of the right (as demonstrated by public use in the rest of the period) had been withdrawn.
- I also agree with the Defendant's concession that it was not reasonably open to the Inspector to find that the reasonable landowner could not know that a continuous right to enjoyment was being asserted that ought to be resisted. The Defendant accepts that, in all the circumstances, a reasonable landowner would consider that the period of non-use was due, directly or indirectly, to the foot and mouth restrictions.
- For these reasons, the claim for judicial review is allowed.
