The Ramblers’ Association, R (on the application of) v Secretary of State for Environment, Food and Rural Affairs

For the statutory presumption of dedication under section 31(1) of the Highways Act 1980, actual enjoyment must be assessed over the whole 20-year period. A temporary intermission in public use does not automatically prevent the period from running. The question is whether, viewed as a whole, the use was sufficient to make a reasonable landowner aware that a continuous public right was being asserted and ought to be resisted.

This question is distinct from interruption. Interruption requires a positive, physical and actual interference with enjoyment. The reasons for a period of non-use, including temporary public-health restrictions, may be relevant to both questions. A rigid de minimis threshold is inconsistent with the authorities.

The claimant sought judicial review of an inspector’s decision refusing to confirm a definitive map modification order for additional footpaths in Hayton Woods, Cumbria. The inspector concluded that public use had ceased for at least four months during the 2001 foot-and-mouth disease restrictions and that the statutory requirement of actual enjoyment for a full 20 years was not satisfied.

The Secretary of State conceded that the decision should be quashed. Roxlena Limited, the principal landowner and an interested party, contested the claim. The central issues were whether actual enjoyment and interruption were distinct questions, whether the cause of an intermission in use was relevant, and whether the inspector had applied the correct legal test.

1. Claim allowed. The inspector’s decision was quashed because she applied an erroneous legal test to actual enjoyment under section 31(1) of the Highways Act 1980.
2. “Actual enjoyment” does not mean continuous physical use. The statutory language derives from the Prescription Act 1832 and the Rights of Way Act 1932. The authorities establish that enjoyment must be evaluated over the statutory period as a whole. The relevant question is whether the nature and degree of use would have made a reasonable landowner aware that a continuous right was being asserted and ought to be challenged if it was to be resisted.
3. That question is separate from interruption. A mere cessation or intermission in use is not an interruption. Interruption requires a positive, physical and actual interference with enjoyment. The circumstances and purpose of any obstruction may be relevant, particularly where restrictions were imposed for temporary public-health reasons rather than to challenge the asserted right.
4. The cause or explanation of non-use is relevant context. It does not involve an inquiry into the subjective state of mind of users or the landowner. Objectively ascertainable facts may explain why use ceased and assist in determining whether the public’s conduct, viewed over the full period, continued to assert a right.
5. The inspector wrongly treated the distinction between a short de minimis break and a longer break as central. That approach focused on the four-month period rather than the entire 20 years and failed to evaluate whether the public’s use, considered as a whole, would have alerted a reasonable landowner to the asserted right. Her conclusion that the landowner could not have known of the asserted right during the intermission also asked the wrong question.
6. The court agreed that the temporary foot-and-mouth restrictions objectively explained the cessation of use. In the circumstances, a reasonable landowner would not have concluded that the public’s assertion of the right had been withdrawn.

First-instance judicial review. The judgment records an earlier challenge in the same dispute, dismissed by the High Court and Court of Appeal, but that earlier litigation was not the decision under review in this claim.