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

Under section 31(1) of the Highways Act 1981, public use of a way as of right must be assessed objectively over the relevant 20-year period. The question is whether the use, taken as a whole, would have brought home to a reasonable non-absentee landowner that the public were asserting a continuous right.

Use need not be continuous at every moment. An intermission is not necessarily fatal, and its explanation may be relevant. This differs from an interruption, which requires an obstruction, overt act or interference with enjoyment. A decision-maker who focuses only on whether non-use is de minimis applies the wrong test.

Cumbria County Council made a definitive map modification order adding 18 footpaths and a bridleway over land owned by Roxlena Limited. Following a public inquiry, the inspector refused to confirm the order, finding that a period of approximately four months during the 2001 foot and mouth restrictions meant that the routes had not been actually enjoyed for a full 20 years.

The Ramblers' Association successfully challenged the decision by judicial review before Lang J, whose judgment is reported at [2025] EWHC 537 (Admin). Roxlena appealed. The central issues were the distinction between intermission and interruption of use, the relevance of the reason for non-use, and whether the inspector had applied the correct statutory test.

Lord Justice Lewison gave the leading judgment. Lord Justice Lewis and Lady Justice Yip agreed.

1. Statutory test. The appeal was dismissed. Section 31 of the Highways Act 1981 uses language derived from the Prescription Act 1832 and the Rights of Way Act 1932. Earlier case law therefore informs its interpretation. Use must be public, as of right, and objectively sufficient to bring home to the mind of a reasonable non-absentee landowner that a continuous right is being asserted.
2. Intermission and interruption. Sufficiency of use must be assessed over the whole 20-year period, not by isolating particular sub-periods. Use need not be continuous throughout. An intermission may be relevant but is not necessarily fatal. The apparent explanation for the intermission must be considered in deciding whether non-use is consistent with the continuing assertion of the right. That assessment is retrospective, at the date when the right is brought into question, and must take account of resumed use.
3. The question of actual enjoyment for the full period is distinct from whether enjoyment was without interruption. Interruption requires an obstruction, overt act or interference with enjoyment. Mere cessation or intermission is insufficient.
4. Error of law. The inspector applied a de minimis test and concentrated on the four-month period in which use had stopped. She failed to assess the use over the whole period and failed to consider that public use resumed for eight or nine years before the right was brought into question. The judge was therefore entitled to interfere with the inspector's conclusion. The town and village green authorities relied on by Roxlena concerned the materially different scheme in section 15 of the Commons Act 2006 and did not advance its case.
5. Relief. The argument under section 31(3C) of the Senior Courts Act 1981 was rejected. It was not highly likely that the inspector would have reached the same conclusion absent the legal error. Possible future restrictions would regulate use at that time but did not justify concluding that no rights had been established. The question whether the order should be confirmed was remitted to the Secretary of State, who was to determine the appropriate procedure.

• Court of Appeal (Civil Division) — In [2026] EWCA Civ 534, the appeal was dismissed and the question whether the order should be confirmed was remitted to the Secretary of State.
• High Court of Justice, King's Bench Division, Planning Court — Lang J upheld the judicial review challenge to the inspector's refusal to confirm the definitive map modification order: [2025] EWHC 537 (Admin).