Breaks in use and the 20-year clock: a ruling with reach beyond rights of way

Rights acquired through long use (by prescription) permeate several areas of property law according to B P Collins’ property disputes team. Public rights of way, private easements such as rights of way and drainage acquired over a neighbour’s land, and town and village greens, are all capable of being established by use over a long period, typically twenty years.  When seeking to establish a prescriptive right, the question that often gets asked is: if the use stops for a period during those twenty years, does that break defeat the claim?  The case of Roxlena Ltd v R (on the application of The Ramblers’ Association) and others [2026] answers that question in the specific context of public rights of way, but its analysis of the underlying doctrine is authoritative and is likely to matter wherever a prescriptive period is in issue.

Although the case concerned highways legislation, the Court of Appeal’s treatment of the relevant principles, in particular its summary of the law on breaks in use of a right, reaches well beyond that context.  Anyone advising on prescriptive easements will find the reasoning directly relevant.

Rights acquired by long use

A right can be acquired by exercising it, openly and without permission, for the requisite period:

• Public rights of way can be acquired pursuant to section 31 of the Highways Act 1980 where a way has been enjoyed by the public as of right and without interruption for a full period of twenty years.  It is deemed to have been dedicated as a public highway, unless there is sufficient evidence that the landowner had no intention to dedicate it.  
• Private easements can be acquired by twenty years’ use under the doctrine of lost modern grant and under the Prescription Act 1832.  
• Town and village greens can be registered where local inhabitants have indulged in lawful sports and pastimes on the land as of right for at least twenty years.

The Court of Appeal confirmed that the same test runs through all the above, which is why the court’s analysis of prescriptive rights is useful when examining prescriptive rights across these different contexts: the concepts the Roxlena case examines are common to the law of prescription generally, not just unique to highways.

What happened in this case

In January 2021, Cumbria County Council made an order under the Wildlife and Countryside Act 1981 adding eighteen new footpaths and a bridleway over Hayton Wood.  The landowner, Roxlena, objected.  Following a public inquiry, a planning inspector declined to confirm the order.

Roxlena accepted that the public had used all the routes regularly throughout the relevant twenty-year period from 1990 to 2010, with one exception.  For about four months in 2001, access was restricted because of the foot and mouth disease outbreak, when wide-ranging restrictions were imposed on entry to the countryside.  The inspector concluded that this four-month break was more than minimal and therefore broke the continuity of use – the twenty-year requirement was not satisfied.  The Ramblers’ Association challenged that decision.  The High Court quashed the inspector’s decision and Roxlena subsequently appealed to the Court of Appeal.

What the Court of Appeal decided

The Court of Appeal dismissed Roxlena’s appeal.  Lord Justice Lewison held that the inspector had asked the wrong question: she had approached the case with what the court called ‘tunnel vision’, looking only at whether the four-month break in use was more than minimal, rather than standing back and assessing the use across the whole of the twenty-year period.

Central to the judgment, and to its wider significance, is the distinction between an ‘interruption’ and an ‘intermission’:

• An interruption is something that challenges or contradicts the assertion of a right – a landowner locking a gate, putting up an obstruction, or otherwise making clear that the use is being resisted.
• An intermission is simply a period during which, for whatever reason, the use does not in fact happen.

The two are quite different.  A mere intermission does not automatically break continuity.  What matters is whether, looking at the whole period, a continuous right can be said to have been asserted.  This distinction is not peculiar to highways: it lies at the heart of the law of prescription in every context.

The reason for the gap in use is therefore important.  Here, the break was caused by national foot and mouth restrictions, not by anyone abandoning the route or the landowner challenging the use.  The court held that no reasonable landowner, observing that the paths were unused for those four months, would have concluded that the right had been given up.  A reasonable landowner would have understood the obvious explanation (that the absence of use was due to the foot and mouth restrictions) and would have expected use to resume, as it did, once the restrictions were lifted.  Set against twenty years of otherwise regular use, a four-month gap with a clear external cause did not defeat the claim.

The court’s summary of the law

The Court of Appeal approved a set of clear propositions for assessing whether use has been continuous enough to satisfy a twenty-year prescriptive period.  These are framed in the highways context but are readily transferable.  In summary:

1. Whether the right was actually enjoyed for the full twenty-year period is a question of fact and evaluative judgment.
2. An interruption (something contradicting the assertion of the right) and an intermission (a simple gap in use) are different concepts and must not be confused.
3. A mere cessation of use does not, by itself, break the continuity of enjoyment.
4. The decision-maker must survey the extent and nature of the use over the whole of the relevant period, not fixate on a single gap.
5. The reason for any gap is likely to be relevant: a gap with an innocent external cause carries very different weight from one suggesting the right has been abandoned.
6. The touchstone is whether a reasonable landowner would appreciate that a continuous right was being asserted which needed to be challenged if it was to be resisted.

Why this matters beyond rights of way

The value of the decision in Roxlena is its authoritative treatment of principles common to all prescriptive claims.  The same questions arise whenever a right is said to have been acquired by twenty years’ use and there has been a gap somewhere in the period:

1. Prescriptive easements:  Where a neighbour claims to have acquired a right of way, a right of drainage, or another easement over your land by twenty years’ use, a period during which the right was not exercised will not necessarily defeat the claim.  The court will look at the whole period and ask why the gap occurred.  A gap explained by an external event (for example, building works, illness, a temporary obstruction outside the applicant’s control) is unlikely to be treated as breaking continuity, whereas a gap suggesting the right had been given up may do so.
2. Town and village greens:  Applications to register land as a town or village green require twenty years’ use by local inhabitants for lawful sports and pastimes as of right.  Objectors frequently point to periods of reduced or interrupted use.  Roxlena confirms that the right approach is to assess use across the whole period and to consider the reason for any lull, rather than seizing on a single gap as automatically fatal.
3. Public rights of way:  A temporary break in public use (whether caused by disease restrictions, flooding, temporary works, or any other external event) will not necessarily prevent a right of way being established where the route has otherwise been used openly for twenty years.
4. The COVID-19 question:  The reasoning has obvious relevance to gaps in use caused by the coronavirus pandemic restrictions of 2020 and 2021, across all these contexts.  Applying the logic in Roxlena, a period when a route or land could not lawfully be used because of public health restrictions is likely to be treated as an intermission with an innocent cause, rather than an interruption that defeats a claim (though each case will turn on its own facts).

Practical points for landowners

For any landowner wanting to prevent a right (public or private) arising over their land, the lesson is that passivity is not protection.  A gap in use that happens to occur, without the landowner doing anything, will rarely help.  What defeats a prescriptive claim is a positive act that contradicts the assertion of the right:

1. For public rights of way:  Deposit a statement and map with the local authority under section 31(6) of the Highways Act 1980, erect clear notices denying any intention to dedicate, or visibly obstruct the route.  These steps contradict the public’s assertion of a right; a passive gap in use does not.
2. For private easements:  Granting permission for the use (which makes it use by consent rather than ‘as of right’), or interrupting it by physical obstruction or a clear challenge for a continuous period of at least a year, can prevent the right being acquired.
3. Act on the right evidence:  If you are facing a claim, gather evidence of the whole twenty-year period, not just the gap.  The strength of a claim, or of an objection to it, depends on the overall pattern of use and the explanation for any breaks.

Get in touch

B P Collins’ specialist property disputes team advises landowners, neighbours and others on rights acquired by long use, including prescriptive easements, public and private rights of way, and town and village green applications and objections.

The  property disputes team wants to get to the heart of the issue, understanding the objective and managing the process to analyse the risks and achieve a resolution as swiftly, efficiently and as cost effectively as possible. For more information, get in touch with Elliott Brookes or email enquiries@bpcollins.co.uk or call 01753 889995. The team’s ethos is simple: solve the problem.