The Court of Appeal distinguishes between an interruption and intermission for the purpose of s31(1) of the Highways Act, upholding the High Court ruling that a four-month intermission in the public's general use of a way over land due to a foot and mouth outbreak did not constitute an interruption of use for the relevant 20-year test.
In 2021, Cumbria County Council produced a Definitive Map Modification Order over Hayton Wood, proposing the recording of 18 footpaths and a bridleway for public use.
While the landowner, Roxlena Ltd, accepted that the depicted routes had been used by the public as suggested, it opposed the County Council's Order on the basis that the public's use had not satisfied the statutory 20-year period required to establish a right of way by use (s31(1) of the Highways Act 1980).
An inspector was subsequently appointed by the Secretary of State to review the Order and concluded that the mapped footpaths and bridleway had not been enjoyed without interruption for a period of 20 years as, between 1990-2010, a severe outbreak of foot and mouth disease in the area had prohibited public use of Hayton Wood for approximately four months during 2001.
In the inspector's view, this period of time was more than 'de minimis' (minor) and was therefore sufficient to prevent enjoyment by the public over the illustrated ways during that time.
The Ramblers Association successfully challenged the inspector's decision on the Order before the High Court in 2025. The inspector's decision was quashed, with the High Court ruling that a government-mandated period of non-use was an "intermission", rather than a legal "interruption" and did not therefore automatically negate decades of public enjoyment of those routes.
Roxlena Ltd was granted permission to appeal the High Court's decision and the matter came before Lord Justice Lewison, Lord Justice Lewis and Lady Justice Yip in the Court of Appeal earlier this year. The Court of Appeal scrutinised the legal test applied by the inspector and Lord Justice Lewison concluded that they had approached the statutory question with "tunnel vision" regarding the 'de minimis' point.
The Court of Appeal emphasised that the four-month intermission which had occurred must be assessed in the context of the entire 20 years of use. That is to say that the public continued to use the ways after the restrictions were lifted, constituting the assertion of a continuous public right. The intermission of use was contrasted with an "interruption" of use (as set out in the earlier High Court decision) as being not mere cessation of use but an "obstruction", "overt act", or "interference with the enjoyment of the right".
Intermission and interruption of use are therefore entirely distinct from one another when considering public use of ways over land: intermission in use is often "relevant" but not necessarily "fatal".
