Roxlena Ltd v The Ramblers' Association & Ors, R (On the Application Of)

Factual and Procedural Background

Company A (Appellant) owned Hayton Wood. On 19 January 2021 the county authority made a Definitive Map Modification Order adding multiple footpaths and a bridleway across the wood. Company A objected. Company B (interested claimant) challenged the decision-making inspector's recommendation that the Order not be confirmed; the Secretary of State (Government Department / 1st Respondent) consented to quash the inspector's decision; Company A maintained support for the decision. The local authority (Local Authority / 2nd or 3rd Respondent) did not take part.

The inspector had taken the relevant 20-year period as 1990–2010 and concluded that a c. four-month cessation of public use during the 2001 foot and mouth disease restrictions meant the claimed ways had not been "actually enjoyed" for the full period. Company B brought judicial review; Judge Lang (High Court) quashed the inspector's decision. Company A appealed to the Court of Appeal. The Court of Appeal (Judge Lewison, Judge Lewis, Judge Yip) heard the appeal and delivered an approved judgment dated 07/05/2026.

Legal Issues Presented

1. What is the meaning of "actually enjoyed by the public as of right and without interruption for a full period of 20 years" in section 31(1) Highways Act 1981?
2. Whether an intermission in use caused by public-order restrictions (the 2001 foot and mouth measures) is to be assessed by a de minimis test or by considering the explanation for the intermission when assessing the 20-year period as a whole.
3. Whether the inspector applied the correct legal test and, if not, whether the High Court was entitled to interfere with the inspector's factual/conclusive findings.

Arguments of the Parties

Appellant's Arguments

• Attorney Bowes argued that analogies to earlier prescription cases are unreliable because section 31 concerns public rights rather than private prescription; the cause of any non-use is irrelevant and use/non-use is a pure question of fact.
• Attorney Bowes relied on the earlier High Court decision in the site's own litigation (referred to in the opinion) and on the Planning Inspectorate Advice Notes to support a de minimis approach to temporary non-use caused by foot and mouth restrictions.
• It was submitted that, even absent the legal error, the inspector would "highly likely" have reached the same conclusion and relief should be refused under the relevant statutory saving provision.

1st Respondent's Arguments

• Attorney Buley advanced eight propositions summarising the law (objectivity of "as of right"; assessment of use taken as a whole; intermission is relevant but not necessarily fatal; interruption requires an overt act or obstruction).
• The 1st Respondent accepted that the inspector had erred in focusing on whether the intermission was de minimis and conceded that a reasonable landowner would have treated the period of non-use as due to the foot and mouth restrictions.

The opinion records that the 2nd and 3rd Respondents did not attend and were not represented.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began from the statutory wording of section 31(1) and traced its pedigree to the Prescription Act 1832 and the Rights of Way Act 1932, concluding that earlier case-law is relevant to interpreting section 31. The court analysed the inspector's approach and concluded the inspector applied a de minimis test focused on whether the c. four-month cessation was too small to matter. The court held that that approach conflated two distinct concepts: (a) an intermission (temporary non-use) and (b) an interruption (an overt act or obstruction disputing the right).

The court accepted the proposition that use must be sufficient, taken as a whole over the 20 years, to have put a reasonable non-absentee landowner on notice that a continuous right was being asserted. That assessment is objective and retrospective, looking at the entirety of the 20-year period, including any explanation for gaps in use that would have been apparent to a reasonable landowner.

The court rejected the appellant's submission that the cause of non-use is irrelevant. It held that the reason for an intermission is relevant to determine whether the non-use was consistent with continued assertion of the claimed right and whether the landowner would have been put on notice. The inspector erred by assessing the landowner's state of knowledge only during the four-month intermission rather than over the whole period up to the date the right was brought into question and failed to account for resumption of use for about nine years thereafter. That failure was a clear error of law.

The court accepted the 1st Respondent's concession and the High Court's conclusion that no reasonable landowner would have inferred from the short period of non-use that the public's assertion of the right had been withdrawn. The court found in addition that authorities under the Commons Act and earlier guidance (Advice Note) were of limited relevance, because of different statutory schemes.

Holding and Implications

DISMISSED

Holding: The Court of Appeal dismissed Company A's appeal and upheld Judge Lang's decision quashing the inspector's decision.

Implications: The Court remitted the decision whether to confirm the Order to the Secretary of State (Government Department). The immediate consequence is that the Order decision must be reconsidered by the Secretary of State, applying the correct legal test as described. The opinion does not identify or establish a novel, binding principle beyond its application of existing authorities; it confines its ruling to correcting the inspector's legal error and remitting the matter for reconsideration.