Use it or lose it: presumed dedication under section 31 Highways Act 1980

In Roxlena Limited v R (The Ramblers’ Association) [2026] EWCA Civ 534 the Court of Appeal has helpfully clarified the position on deemed dedication under section 31 Highways Act 1980, reaffirming that intermission in use and interruption of use are categorically distinct ideas [17]. Lewison LJ has helpfully resolved any doubt over the relevance of the reason for a gap in use and provided an authoritative eight-point restatement of the law. [60]

Facts

Cumbria County Council made a Definitive Map Modification Order in January 2021 adding 18 footpaths and a bridleway across Hayton Wood on Roxlena’s land [3]. A Planning Inspector declined to confirm the Order, finding that a four month cessation of use during the 2001 foot and mouth disease outbreak meant the paths had not been “actually enjoyed” for the full 20-year period required by section 31(1) [4]. The Ramblers’ Association challenged that decision by judicial review, and it was quashed by Lang J [6]. Roxlena appealed. The Court of Appeal dismissed that appeal, and the decision itself has been remitted to the Secretary of State for determination on the correct legal basis [73].

The key legal points

1. Intermission or Interruption. The Court drew a crucial distinction between an intermission (a gap in use) and an interruption (an overt act disputing the right) [32]-[40]. An interruption requires “an obstruction … an overt act indicating that the right is disputed” (para 37). A gap in use, however long, is not automatically an interruption.
2. The reason for the gap is relevant. Contrary to Kerr J’s earlier observation in R (Roxlena Ltd) v Cumbria CC [2017] EWHC 2651 (Admin) that “the cause of any non-use is not the issue”, the Court held that the reason for an intermission may well be legally relevant [48], [50], [58]-[60]. Critically, the Inspector failed to consider that after the foot and mouth restrictions lifted, public use resumed and continued for eight or nine further years. That resumption was plainly significant but was simply ignored by the Inspector [57].
3. The Inspector’s error. The Inspector asked only whether the four-month gap was de minimis, concluding it was not, and that the 20-year threshold was therefore unmet [13], [62]. This was the wrong test. The correct approach requires surveying the 20-year period as a whole and asking whether the use would have brought home to a reasonable landowner that a continuous right was being asserted [50]; [60(iv)]

The eight propositions

Lewison LJ set out an authoritative restatement of the law in eight propositions [60]:

1. A public right of way will be deemed to have been dedicated by 20 years continuous enjoyment of the way by the public.
2. Use means actual use of the relevant type (walking, riding, etc.) for the particular way.
3. Use must be “as of right”, i.e. without force, stealth or permission – assessed objectively, rather than on the subjective belief of particular members of the public.
4. Use must be sufficient to alert a reasonable non-absentee landowner that the public is asserting a continuous right of enjoyment – assessed objectively.
5. Sufficiency is assessed over the 20-year period as a whole, not a particular sub period in isolation.
6. Use need not be continuous throughout the 20-year period. An intermission will be relevant, though not necessarily fatal to section 31 deemed dedication.
7. In considering the effect on the mind of the reasonable landowner of an intermission in use, it will be relevant to consider any “explanation” for that intermission which would have been apparent, so as to consider whether the non use in a given period is consistent with the public’s assertion of a right in that period.
8. Whether “use” is sufficient is a distinct question to whether the “enjoyment” has been “without interruption”. “Interruption” requires not merely cessation of use but “an obstruction”, an “overt act” or an “interference with the enjoyment of the right.

Practical guidance for local authorities

These eight propositions clarify the approach local authorities should take to section 31 matters. Importantly:

Is it an intermission or interruption? Local authorities should consider whether there has been an “interruption” first. If there has been an interruption, the statutory test is not met. If there has been an intermission, the question is whether there has been sufficient use over the 20 period, and the reason for that intermission will be legally relevant. If the intermission arises out of restrictions imposed by law (i.e. foot and mouth closures, or even Covid-related restrictions), Roxlena says that is unlikely to defeat a claim if use was otherwise consistent over the 20-year period.

20 years of use should be considered as a whole. Local authorities should gather evidence of use across the entire 20-year period. Do not treat a gap — even a substantial one — as automatically defeating the dedication. Consider the period as a whole, including what happened either side of the intermission [57].

Samuel Moss is a barrister at 39 Essex Chambers.