Definitive map modification orders had been confirmed on 22nd September 2022 by the highway authority, West Berkshire District Council, in relation to two claimed footpaths across the Springs Farm Estate at Purley-on-Thames. It was alleged by the applicant for registration that there had been public user of the routes “without interruption for a full period of 20 years”, such that the requirements for a statutory presumption of dedication under Section 31(1) of the Highways Act 1980 had been met.

The owners of the estate, Springs Farm Ltd, appealed against the making of the orders on various grounds. These included the fact that there had not been any user of the claimed routes during a 3 month period in 2001, owing to restrictions imposed due to the outbreak of foot & mouth disease that year.

The inspector appointed by the Secretary of State to conduct a public inquiry in respect of the Modification Orders recognised that the 1980 Act made clear that the 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. She further found that there had indeed been an interruption of user during the relevant period in 2001, when the public had made no use of the claimed routes due to the foot & mouth restrictions. However, she determined that this interruption to user during the statutory 20 year period should be disregarded, on the basis that it amounted to a “temporary intercession”. On this basis she elected to regard the requirement for a full period of 20 years of user as having been satisfied, by ‘extending backwards’ a further 3 months so as to compensate for the period in 2001 during which user of the claimed routes was prohibited.

Springs Farm Ltd challenged the inspector’s decision on the basis that it was unlawful to disregard the interruption caused by the Foot & Mouth restrictions, and so brought proceedings pursuant to Paragraph 12 of Schedule 15 of the Wildlife and Countryside Act 1981. The claimant relied upon the statutory language and the comments of Kerr J in R (Roxlena) v Cumbria CC [2017] EWHC 2651 (Admin).

The Secretary of State accepted the Inspector’s approach was unlawful and consented to the quashing of her decision.

Alexander Booth KC and Ned Westaway acted on behalf of the successful claimant.