Section 31 Highways Act 1981: Intermission Is Not “Interruption” and Must Be Evaluated Over the Whole 20-Year Period

Case: Roxlena Ltd v The Ramblers' Association & Ors, R (On the Application Of) [2026] EWCA Civ 534
Court: Court of Appeal (Civil Division) (Lewison LJ, Lewis LJ, Yip LJ)
Date: 7 May 2026
Appeal from: Lang J, Planning Court, [2025] EWHC 537 (Admin)

1. Introduction

This appeal concerns the operation of the statutory presumption of dedication in section 31(1) of the Highways Act 1981, requiring that a way has been “actually enjoyed by the public as of right and without interruption for a full period of 20 years”.

The landowner (the appellant) objected to a Definitive Map Modification Order adding multiple routes across woodland. A Planning Inspector (appointed by the Secretary of State for Environment, Food and Rural Affairs) refused to confirm the Order, finding that public use was absent for about four months during the 2001 foot-and-mouth outbreak and that this prevented proof of “actual enjoyment” for a “full period of 20 years” (1990–2010).

The claimant in the judicial review was The Ramblers' Association. The Secretary of State ultimately did not contest the judicial review and did not appear on the appeal; the local authority did not participate. The key legal issue was whether a temporary, explained gap in use (an intermission) can defeat section 31(1) merely because it is more than de minimis, and how such a gap must be assessed.

2. Summary of the Judgment

  • The Court of Appeal dismissed the landowner’s appeal.
  • It held the Inspector made an error of law by applying the wrong approach to “actual enjoyment” over the “full period” and by focusing narrowly on whether the four-month intermission was de minimis.
  • The correct approach is to assess whether use over the 20-year period “taken as a whole” would have signalled to a reasonable non-absentee landowner that the public were asserting a continuous right, and to consider any explanation for the intermission apparent to such a landowner.
  • The Inspector also asked the wrong question by considering only what a landowner could infer during the four-month gap, rather than assessing the assertion of right across the whole 20 years, including the resumption and continuation of use for many years after the gap.
  • The matter was remitted to the Secretary of State to decide whether to confirm the Order and what procedure to adopt.

3. Analysis

3.1 The statutory framework and the interpretive “pedigree”

The Court emphasised that section 31(1) HA 1981 is the “direct descendant” of the language in the Rights of Way Act 1932 and the Prescription Act 1832. Accordingly, authorities on “actually enjoyed … without interruption for the full period” under the earlier statutes legitimately inform the interpretation of section 31.

The Court rejected an argument that Prescription Act cases are unreliable because section 31 concerns public (not private) rights. It relied on:

  • Merstham Manor Ltd v Coulsdon and Purley UDC [1937] 2 KB 77 (earlier interpretive continuity);
  • R (Sunningwell PC) v Oxford CC [2000] 1 AC 335 (purpose of assimilating public and private law of way);
  • R (Godmanchester Town Council) v Secretary of State [2007] UKHL 28, [2008] 1 AC 221 (1832 Act as model); and
  • DPP v Instone [2022] EWHC 1840 (Admin), [2022] 1 WLR 5358 (same assimilation point).

3.2 Interruption vs intermission: the organising distinction

A central contribution of the judgment is its structured insistence that:

  • “Interruption” in section 31(1) is a technical concept requiring an overt act/obstruction/interference with the asserted right; and
  • “Intermission” (a gap/cessation/non-use) is not the same thing, and does not automatically prevent acquisition—its significance depends on context and the overall pattern of use across the 20 years.

The Court traced this distinction to classic authority:

  • Carr v Foster (1842) 3 QB 581 (Lord Denman CJ: “without interruption” not “without intermission”; intermission can be consistent with continued right; assessment is for the fact-finder).
  • Hollins v Verney (1884) 13 QBD 304 (Lindley LJ: total absence of user for a year is fatal unless explained consistently with continued enjoyment).
  • Jones v Bates [1938] 2 All ER 237 (Scott LJ: “mere absence of continuity” does not stop time running; interruption requires interference).
  • Lewis v Thomas [1950] 1 KB 438 (interruption means interruption in fact, aligning with interference concept).

The Court also drew on modern prescription reasoning: Lawrence v Fen Tigers Ltd [2014] UKSC 13, [2014] AC 822 (Lord Neuberger: the ultimate question is what a reasonable servient owner would have appreciated about an asserted continuous right over the whole period; approval of Carr v Foster).

3.3 “Actually enjoyed … for a full period of 20 years”: the correct evaluative approach

The Court confirmed that the “actual enjoyment” question is one of fact (or evaluative fact-finding) but must be guided by a correct legal test. It endorsed a “reasonable landowner” lens, as reflected in:

  • Wright v Secretary of State for Environment, Food and Rural Affairs [2016] EWHC 1053 (Admin) (use must be sufficient to bring home to a reasonable landowner that the public are asserting a continuous right; user need not be by the same individuals);
  • Mann v Brodie (1885) 10 App Cas 378 (sufficient number to constitute public use);
  • R (Lewis) v Redcar and Cleveland Borough Council [2010] UKSC 11, [2010] 2 AC 70 (quality of “as of right”).

Crucially, the Court held that section 31(1) does not require proof of use in every sub-period; rather, the question is whether use over the whole 20 years is sufficient, and whether any intermission undermines the inference of continued assertion of right when that whole period is surveyed.

3.4 The Inspector’s legal error: “tunnel vision” on de minimis and the wrong temporal perspective

The Inspector treated the “crux” as whether a four-month gap was more than de minimis and therefore prevented “actual enjoyment” for the “full” 20 years. The Court held this was the wrong approach: it elevated duration of the gap into a near-determinative rule instead of applying the “taken as a whole” evaluation demanded by the authorities.

The Court accepted Lang J’s essential critique: the Inspector focused on the landowner’s objective ability to know a right was being asserted during the gap itself. That misses the point that the section 31 inquiry is retrospective (at the point the right is “brought into question”), asking what the 20-year pattern of use—including resumption after the intermission—would objectively signify to a reasonable landowner.

The Court regarded the Inspector’s failure to grapple with the eight or nine years of resumed use after the restrictions lifted as a clear error of law.

3.5 The relevance of the “explanation” for non-use (and where Kerr J went wrong)

The landowner argued (relying in part on Kerr J’s comments in R (Roxlena Ltd) v Cumbria CC [2017] EWHC 2651 (Admin) (“Roxlena 1”)) that the cause of non-use is irrelevant: “Use or non-use is a question of fact; the cause of any non-use is not the issue.”

The Court held that was wrong in principle: the cause may determine whether the gap is consistent with continued assertion of the right, and may also bear on whether there has been “interruption” (interference) rather than mere intermission. The Court described Kerr J’s discussion as “muddled and potentially misleading” because it conflated:

  • the “full 20 years actual enjoyment” question; and
  • the distinct “without interruption” question.

The Court also analysed De Rothschild v Buckinghamshire CC (1957) 8 P & CR 317, treating it as a “no use for the final eight years” case (not an intermission-with-resumption case) and therefore not supporting the proposition that explanations are irrelevant.

In rejecting an attempted analogy with section 15(6) of the Commons Act 2006 (which expressly disregards periods when access was prohibited by enactment), the Court held it was impermissible to use that later, different legislative scheme to interpret section 31, and in any event section 15(6) works differently (dropping excluded time and pushing back the start date).

3.6 Distinguishing village green “interruption” cases

The landowner relied on Betterment Properties (Weymouth) Ltd v Dorset CC [2012] EWCA Civ 250, [2012] 2 P & CR 3 and Naylor v Essex CC [2014] EWHC 2560 (Admin), [2015] JPL 217. The Court held these did not assist because they concerned a different statutory scheme (Commons Act 2006), and approached matters through “interruption”-type reasoning not aligned with section 31’s distinct architecture and historic case-law on intermission vs interruption.

3.7 Impact

Area Likely consequence
Definitive Map Modification Orders (DMMOs) Inspectors and authorities must avoid treating any non-trivial gap in use as automatically fatal to section 31(1). The inquiry must evaluate the 20-year period “taken as a whole”, including post-gap resumption.
Public health / emergency restrictions (e.g. disease control) Statutory restrictions that suppress use may be a powerful explanation indicating intermission consistent with continued assertion of the right—particularly where use resumes and continues for years afterwards.
Landowner “knowledge” and defensive steps The relevant question is not what could be inferred during a short hiatus, but what the pattern across 20 years would convey to a reasonable non-absentee landowner at the time the right is brought into question.
Inspectorate guidance The judgment implicitly cautions against over-simplified “de minimis” heuristics (as seen in the withdrawn 2023 Advice Note 15) and re-centres the analysis on orthodox prescription principles.

4. Complex Concepts Simplified

  • “As of right”: the public use must look like use being exercised as a right—i.e. not by force, not in secret, and not by permission. It is assessed objectively.
  • “Actually enjoyed … for a full period of 20 years”: does not mean daily use. It means that over the 20 years, the public’s use (viewed overall) is enough to indicate an asserted continuous right.
  • Intermission: a gap where people do not use the way (for example, because conditions discourage or prevent it). An intermission can be consistent with continued assertion of a right, especially if use resumes.
  • Interruption: an interference (an obstruction or overt act disputing the right). It is not the same as people simply not turning up.
  • “Taken as a whole”: the decision-maker must evaluate the pattern of use across the entire 20 years, not treat a sub-period in isolation.

5. Conclusion

Roxlena Ltd v The Ramblers' Association reasserts orthodox principles underpinning section 31 HA 1981: a temporary, explained gap in public use is an intermission, not an interruption, and it must be assessed in context and against the pattern of use across the whole 20-year period. The decision rejects a mechanistic “more-than-de-minimis gap defeats the claim” approach, and confirms that the explanation for non-use—and the resumption of use after the gap—may be decisive when asking what a reasonable landowner would have understood about the continued assertion of a public right.