Guidance

Rights of Way Section Advice Note 15- Breaks in User Caused by Foot and Mouth Disease

Updated 15 August 2023

This guidance was withdrawn on 20 November 2024

This advice note relates to policy and legal guidance matters, this responsibility falls outside of the remit of the Inspectorate. It has therefore been decided that rights of way advice notes produced by the Inspectorate will no longer be updated and will be archived on GOV.UK.

Applies to England and Wales

1. Introduction

1.1. Inspectors may hear submissions in relation to evidence of use to the effect that restrictions on access to claimed rights of way under foot and mouth disease control measures constituted an ‘interruption’ in user for the purposes of section 31(1) of the Highways Act 1980.

1.2. This Advice Note explains the Planning Inspectorate and DEFRA’s views on the issue and takes into consideration comments made by the High Court in The Queen on the application of Roxlena Limited v Cumbria County Council [2017] EWHC 2651 (Admin). Whilst this Note is publicly available, it is not an authoritative interpretation of the law.

2. Background

2.1. To prevent the spread of foot and mouth disease during the outbreak in 2001, many local authorities restricted access to land under the Foot and Mouth Disease Order 1983 (as amended). The Order permitted the closure of land regardless of the presence of public rights of way.

2.2. It may be argued that this restriction on access brought about an ‘interruption’ that could prevent the acquisition of rights by deemed dedication under section 31(1) of the Highways Act 1980.

2.3. If use of a way claimed by the public is to raise a presumption of dedication as a highway, sub-section 31(1) of the 1980 Act requires that use to have continued “without interruption for a full period of twenty years”. Sub-section 31(2) makes clear that this twenty-year period “is to be calculated retrospectively from the date when the right of the public to use the way is brought into question”.

2.4. Depending on the particular circumstances, where the relevant twenty years includes a period of foot and mouth restrictions, it is likely that use by the public of a claimed route ceased for a period of time, either because it lay within an area to which access was restricted by order or because it could only be reached by passing through land where access was so restricted.

2.5. The duration of the orders that restricted access varied in different areas but were generally in operation for 3-6 months. Thus, it may be argued that the period of time during which there was no use by the public (albeit due to the closure order) interrupted the accumulation of an otherwise continuous period of twenty years’ use prior to the status of the claimed way being brought into question.

3. Consideration

3.1. The essential issue here is whether the use of a way claimed by the public during a 20-year period can be described as continuous and without interruption when it includes a period of non-use as a result of closure by order.

3.2. During the relevant 20 years before a way is brought into question, section 31(1) requires use to have continued “without interruption”. Whilst the frequency of use will vary in every case, a 3-month period where use by the public ceases is unlikely to be regarded as de minimis in terms of the length of time of non-use.

3.3. However, a number of factors may be relevant when determining whether or not the non-use amounts to a sufficient interruption for the purposes of presumed dedication under the statutory scheme.

3.4. In addition to providing evidence of a lack of intention to dedicate a way, it is well-established that the intentions of the landowner are relevant also to whether or not there has been an ‘interruption’ within the meaning of the Act. This was clearly recognised in Lewis v Thomas [1950] 1 KB 438. Whilst “interruption” refers to an interruption of fact, the intention of the owner to prevent someone passing along the route is relevant.

3.5. In Fernlee Estates Ltd v City & County of Swansea and the National Assembly for Wales (QBD) [2001] CO/3844/2000, [2001] EWHC Admin 360, [2001] 82 P & CR DG19, [2001] 24 EG 161 (CS) the court was required to consider whether temporary building works amounted to an interruption within the meaning of section 31(1). Paragraph 16 of that judgement reads:

In order to constitute an interruption for the purposes of section 31(1) of the Highways Act 1980 there must be some physical and actual interruption which prevents enjoyment of the way rather than merely acts which challenge the user while allowing it to go on: Merstham Manor Ltd v Coulsdon and Purley [1937] 2 KB 77, 84-85. A mere absence of continuity in the de facto user will not stop time running, there must be interference with the enjoyment of a right of passage: Jones v Bates [1938] 2 All ER 237, 246. Thirdly, “interruption” means “interruption of fact”. However, the circumstances of and the intention with which the barring of the way takes place are relevant. For example, the blocking of a road by a broken down vehicle would not amount to a relevant interruption: Lewis v Thomas [1950] 1 KB 438.

3.6. It is therefore clear that an effective interruption requires actual interference with passage by the user, not simply a temporary lack of use, although the nature of the interruption need not necessarily be a physical one. In addition, the circumstances in which a restriction on use takes place and the absence of any intention deliberately to prevent use of the way as of right may be relevant. For example, in Lewis v Thomas the farmer from time to time locked a gate across a track in order to protect his cattle from straying into a field. The fact that he had locked the gate at these times to protect the cattle and not to prevent the public from using the track was relevant to the question of whether there had in truth been an interruption.

3.7. Foot and mouth restrictions were applied to wide areas within which access to land by the public was prohibited by law. Notices were placed around closure zones to inform the public of the restrictions. These were not instigated by the landowner and did not necessarily directly relate to a claimed route. Even so, the effect is likely to have been that use of the claimed route by members of the public ceased whilst the restrictions were in force.

3.8. Section 31(1) does not require the interruption to have been caused deliberately; neither is it required to be instigated by any particular person or for any specific reason. But interpretation through the courts makes clear that the actions and intentions of the landowner can be relevant when considering periods of non-use. In the case of foot and mouth restrictions, it is likely to be highly relevant that the notices were put in place not with the intention by the landowner/occupier of preventing the public from using the way but in observance of the legal restrictions being put in place for the protection of public health, and for a temporary period.

3.9. The effects of requisition of land during the Second World War under emergency powers have been referred to, by analogy, in support of the ‘interruption’ argument. However, the Planning Inspectorate and DEFRA take the view that there is no direct correlation with the temporary closures enforced during the foot and mouth epidemic.

3.10. Requisitioning of land under wartime measures effectively displaced the owners’ interest in the land with the requisitioning authorities obtaining a right of possession. Thus, there was no-one with the power to dedicate a right of way over the land during the period of requisition. That approach is distinctly different to the implementation of restrictions on access under the Foot and Mouth Disease Order.

3.11. In the cases where there was a relevant foot and mouth restriction it will be necessary to consider whether there was a period of interruption to use of the way set against the history of its use. The nature and timings of use by the public will vary from case to case. Where there has been a period of non-use, it is also necessary to consider whether this amounts to a sufficient interruption to the use of the way as of right within the meaning of section 31(1). As highlighted in the Court of Appeal judgement in The Queen on the application of Roxlena Limited v Cumbria County Council [2019] EWCA 1639, this will be a matter of judgment in all of the circumstances of the case.

3.12. However, DEFRA’s view is that the intention of the landowner in these circumstances in posting the notice will be highly relevant and suggests that a short-term period of non-use in these circumstances is unlikely in many cases to amount to a sufficient interruption to the use of the way by the public.

3.13. Restrictions introduced by order to address similar outbreaks in later years and statutory controls to address other biological diseases may, by analogy, be considered not to interrupt a continuous period of twenty years’ use by the public but should be determined on the facts of the case.

3.14. Likewise, whether the failure to remove a foot and mouth notice amounts to a challenge or ‘bringing into question’ will depend on the particular circumstances, including who erected the notice and its wording. The failure to remove statutory notices cannot be taken as evidence of a lack of intention to dedicate by the landowner although it may constitute a challenge to the existence of the claimed public rights.

4. Conclusion

4.1. The temporary cessation of use of ways resulting solely from the implementation of measures under the Foot and Mouth Disease Order 1983 should be considered on the basis of all the evidence available but, unless particular circumstances apply, is unlikely to be considered a relevant interruption under section 31(1) of the 1980 Act.