National park – Common land – Access – Wild camping – Claimants seeking declaration that statutory rights of access granted under section 10(1) of Dartmoor Commons Act 1985 did not extend to right for public to camp or wild camp on land – Whether local custom of camping on Commons having force of law – Declaration granted
The Dartmoor National Park in Devon was designated as such in 1951 under section 5 of the National Parks and Access to the Countryside Act 1949. Within it, the Dartmoor Commons were areas of unenclosed moorland which were privately owned, but on which other locals had the right to put their livestock. The Commons comprised some 37% of the National Park and 75% of the moorland.
The claimants were farmers, landowners and commoners. They had owned and lived at Blachford Manor, an estate on Dartmoor, since 2013. Part of the estate’s farm included Stall Moor, an extensive area of open land in a remote section of the Commons, where the claimants kept their cattle, lambs and fallow deer. They became concerned about the potential harm of camping, especially “wild camping” or “backpacking”, on the Commons near Stall Moor.
The defendant was the National Park Authority for Dartmoor, having taken over that function from Devon County Council. In 1989, the council promulgated byelaws under section 11 of the Dartmoor Commons Act 1985 and section 90 of the 1949 Act, respectively, which remained in force.
The claimants sought a declaration that the right of access granted by section 10(1) of the 1985 Act did not extend to a right for the public to camp or wild camp in the Commons. If not, a further question arose whether there was nonetheless a local custom of camping on the Commons which had the force of law despite section 10(1) of the 1985 Act; and if not, whether the court should nevertheless decline to exercise its discretion to grant declaratory relief in the terms sought.
Held: The declaration was granted.
(1) It was important to have regard to the context in which section 10(1) of the 1985 Act was enacted. Prior to the statute being enacted, there was no legal right to roam on Dartmoor or, specifically, the Commons. The right conferred by section 193 of the Law of Property Act 1925 applied only to metropolitan commons. Only two small areas of the Commons were designated as such and, in any event, section 193(4) prohibited camping. Similarly, the rights conferred by section 60 of the 1949 Act only applied where there was an access agreement with the landowner and only slightly over 5% of Dartmoor was ever subject to an access agreement. Therefore, whatever de facto use was being made of the moor and the Commons, other than in those very limited areas, there was no legal right of access.
So far as camping was concerned, it was impossible to argue that, before the 1985 Act was passed, there was a right to wild camp without the consent of the landowner. That such permission was required was borne out overwhelmingly by the contemporaneous material, which recognised that any camping on land on Dartmoor required the permission of the landowner. There was no hint that the position was somehow different for wild camping.
Even if the landowner’s consent in relation to mass camping was replaced by the defendant’s control through byelaws, that was of no relevance to wild camping, which was not part of the mischief which the statute was seeking to address and was not intended to be the subject of control by byelaws. Accordingly, the context in which section 10(1) was enacted was that there was previously no legal right of access to the Commons and no right to wild camp there without, in either case, the permission of the landowner.
(2) The question then was whether, on its correct construction, section 10(1) conferred a right to wild camp without permission. The phrase “right of access to the commons on foot and on horseback for the purpose of open-air recreation” was the statutory formula used to describe the right to roam on the Commons. The phrase “for the purpose of open-air recreation” was also used in section 60 of the 1949 Act to describe the right to roam. The recreation in which the member of the public might engage when on the land subject to an access agreement (in the 1949 Act) or the Commons (in the 1985 Act) could include other activities in addition to walking or horse riding. Those activities included having a picnic, walking a dog or observing wildlife, all of which were clearly ancillary to the right to roam. Camping was not open-air recreation, but a facility for its enjoyment.
The meaning of section 10(1) was clear and unambiguous: it conferred the right to roam on the Commons, which did not include, whether as a matter of construction or of necessary implication, a right to wild camp without permission. It was never the purpose of the statutory provision to give more than that right to roam. Any such camping required the consent of the landowner.
(3) A custom that required consent was no custom and the evidence before the court pointed overwhelmingly to it having been the position at the time the 1985 Act was enacted that there was no right to wild camp on the Commons without the consent of the landowner.
It was inappropriate to decide that a statute had a different meaning from the one which the court considered it had, merely because people had conducted themselves for years on the basis that it had a different meaning. However, it was not necessary to decide whether there was such a principle, since the material before the court came nowhere near establishing the settled practice for which the defendant contended.
Overall, the material before the court did not establish a local custom of camping which had the force of law despite section 10(1) of the 1985 Act.
(4) The claimants had explained in their evidence satisfactorily how wild camping had become more of a problem for them in the recent past and there had not been inordinate or inexcusable delay in bringing the claim to lead the court to refuse declaratory relief.
It was better that a declaration was granted so that the defendant and all walkers and riders on the Commons knew where they stood and what rights they had. An appropriate declaration would assist good administration rather than the reverse.
Timothy Morshead KC (instructed by Irwin Mitchell LLP) appeared for the claimants; Timothy Leader (instructed by Devon County Council) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of Darwall and another v Dartmoor National Park Authority
