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31st March 2020

Planning and Environmental Law - The relevance of the Government’s coronavirus restrictions on legal tests requiring continuous uninterrupted use

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The Coronavirus pandemic is affecting every part of our daily working and personal lives. This includes the temporary closure of business premises, and the social distancing and self-isolation requirements, under the various Health Protection Regulations 2020. How could the impact of these Government restrictions affect future legal rights dependent upon continuous uninterrupted use for a specified period of time? Specifically:

  • Planning Immunity
    - Section 171B of the Town and Country Planning Act 1990 which provides that where there has been a ‘continuous uninterrupted’ breach of planning control for either 4 years (for building works/residential use) or 10 years (for all other breaches) then no enforcement action may be taken.
  • New public rights of way
    – Section 31 of the Highways Act 1980 which provides that new public rights of way can be created where there has been a ‘continuous uninterrupted’ use of the route by the public for 20 years as of right (ie. without force secrecy or permission).
  • New town and village greens
    – Section 15 of the Commons Act 2006 which provides that new town and village greens can be created where there has been a ‘continuous uninterrupted’ use of the land for lawful sports and pastimes by the public for 20 years as of right (ie. without force secrecy or permission).
  • Miles v National Assembly for Wales [2007] EWHC 10 (Admin) – This case concerned the unauthorised planning use of farm land for recreational motorcycling activities and which the required 10 year period of use was interrupted by the foot and mouth restrictions. The court found that the reasons for the interruption, namely the foot and mouth restrictions of the Government, were immaterial to the legal test under s171B. Lloyd Jones J noting “what matters is that the objectionable use actually ceased and there was no longer any need or opportunity for the local planning authority to take enforcement action”.
  • Roxlena Ltd v Cumbria County Council [2019] EWCA Civ 1639 – This case concerned a claim for a public footpath over farm land after a period of 20 years public use as of right under s31. The court in obiter commented that a factual interruption which was more than de minimis caused by foot and mouth disease measures was capable in law of amounting to an interruption in use of a footpath or other way. Use or non-use was a question of fact and the cause of any non-use was not the issue.
Unfortunately, the short answer is that where the Government’s restrictions have as a fact resulted in a material interruption to the continuous use in question then it will interrupt and bring an end to the current period of such continuous use. It is immaterial and no defence that the interruption in the use was not the result of a freely made choice on the part of the user. Thus, if you have not achieved the relevant threshold then you will have to start the clock again once the restrictions are lifted and the use resumes.

Though not at the same level of the coronavirus restrictions, the above stated legal position was clarified by the courts in the early 2000s when closure restrictions were imposed by the Government in agricultural and rural areas relating to the outbreak of foot and mouth disease. The following two key cases were decided during this time and relevant today.

Unfortunately, without government intervention the coronavirus and the Government’s restrictions will have wider and longer lasting impacts to those immediately felt during the present lockdown. The government has shown by the introduction of the Coronavirus Act that it is willing to legislate to a previously unprecedented degree in the current crisis and this is another area in which it may need to do so to prevent inequity. For any questions regarding this article and the topics discussed please contact Brendon Lee in our Planning and Environment Team on 01223 532757 or click here to email Brendon, who will be happy to assist.