Dedication of a highway and interruption

Chloe Karamian examines a recent High Court ruling in a case where a landowner claimed that the dedication of a way as a public right of way had been interrupted by its closure over the Christmas period.

Under section 31(1) of the Highways Act 1980, a way over land is deemed to have been dedicated as a highway where:

• It has been enjoyed by the public as of right
• Without interruption
• For a full period of 20 years (counting back from the date when the public right of way is questioned).

unless there is sufficient evidence to show that there was no intention to dedicate it during that time.

Instead of blocking off the way, some landowners instead show their intention not to dedicate by placing signs to the contrary and/or closing the way for one day a year.

The case of Ali v Secretary Of State For Environment, Food And Rural Affairs & Ors [2015] EWHC 893 (Admin) concerns a path between two properties in Frinton-on-Sea which at all material times contained a door and lead to shops. 

The landowner of the path appealed an order made under section 53(2) of the Wildlife and Countryside Act 1981 to update the definitive map to include the path as a public right of way. He argued that the use had been interrupted since the door had always been locked over the Christmas period by former owners and occupiers. 

The High Court upheld the Inspectorate’s decision to dismiss the application. Whilst the landowner had provided evidence from numerous residents who confirmed that the way contained a door, it was held that the path could not be considered impassable as these people did not use the path and could not verify whether the gate had been locked. A plan submitted with a 2004 planning application labelled the way ‘public right of way’ had been revised twice and through the public planning process. The High Court found that the landowner’s intention was clear.

Most interesting, however, is the High Court’s finding that the annual Christmas closure of the path was ineffective. The case of Regina (Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs [2008] 1 AC 221 held that preventing access for 1 day a year was the norm “but it may depend on the facts of the case if this is enough to be a sufficient interruption”.

The High Court found that the door was locked and the path closed only over the Christmas period; a time when those shops being accessed via the path would be closed. Users would therefore not obviously know that the landowner’s intention was that the path would not be a public right of way and this was therefore not “a sufficient interruption”.  

This case tells us that token closure is not always enough – closure should be meaningful and actually interrupt use. Landowners should ensure that they are clearly communicating the message that their land is not for dedication as a public right of way and maintain evidence of this, whilst highway authorities may need to look further into the circumstances surrounding the interruption to determine whether this is sufficient.

Chloe Karamian is a solicitor at DMH Stallard. She can be contacted on 01269 360 5568 or This email address is being protected from spambots. You need JavaScript enabled to view it..