National park – Common land – Access – Wild camping – Respondent landowners 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 wild camp on commons without express permission of landowners – High Court granting declaratory relief – Appellant park authority appealing – Whether judge erring in law – Appeal allowed
Dartmoor was designated as a National Park under section 5 of the National Parks and Access to the Countryside Act 1949. 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 37% of the national park and 75% of the moorland.
The respondent landowners were farmers, landowners and commoners. They owned and lived at Blachford Manor, an estate on Dartmoor.
Part of their farm included Stall Moor, an extensive area of open land in a remote section of the commons, where the respondents kept cattle, sheep and deer. They became concerned about the potential harm of camping, especially wild camping or backpacking, on the commons near Stall Moor.
The appellant was the National Park Authority for Dartmoor. The respondents asserted that the right of access granted by section 10(1) of the Dartmoor Commons Act 1985 did not extend to a right for the public to camp or wild camp.
The appellant disagreed. The respondents sought a declaration that section 10(1) did not grant the public a right to camp on the commons.
The High Court concluded that section 10(1) conferred the right to roam but no right to wild camping without permission. The effect of section 10(1), if it conferred such a right, would be that the landowner would have suffered a loss of control or a usurpation of his rights over his own land: [2023] EWHC 35 (Ch); [2023] PLSCS 11. The appellant appealed. The Open Spaces Society intervened.
Held: The appeal was allowed.
(1) The critical words of section 10(1) of the 1985 Act provided that “the public shall have a right of access to the commons on foot and on horseback for the purpose of open-air recreation; and a person who enters on the commons for that purpose without breaking or damaging any wall, fence, hedge, gate or other thing, or who is on the commons for that purpose having so entered, shall not be treated as a trespasser on the commons or incur any other liability by reason only of so entering or being on the commons”.
Those words of section 10(1) were clear and unambiguous. They allowed the public to engage in open-air recreation on the Dartmoor Commons provided they proceeded on foot or on horseback.
Open-air recreation included wild camping, although such an activity had to be conducted in strict accordance with the applicable byelaws, which were made by the appellant and confirmed by the home secretary in October 1989.
(2) The Shorter Oxford English Dictionary said that “recreation” in the sense it was used in section 10(1) meant “an activity or pastime pursued, especially habitually, for the pleasure or interest it gives”. “Open-air” referred to the outside air and to something done outside a building or structure.
The right of access granted was stated to be for the purpose of open-air recreation. The words of section 10(1) did not naturally limit the kind of open-air recreation to those undertaken on foot or on horseback.
The 1985 Act said nothing about the “right to roam”. Section 10(1) was doing neither more nor less than granting to the public “a right of access to the commons on foot and on horseback for the purpose of open-air recreation”. The latter part of section 10(1) simply provided that someone who exercised that right of access without breaking any wall, fence, hedge, gate or other thing should not be treated as a trespasser.
(3) The critical question as to the interpretation of the words in section 10(1) was whether “open-air recreation” should properly be taken to include wild camping.
A walker who lay down for a rest without pitching a tent would be present for the purpose of open-air recreation. The resting was a necessary part of the recreation. It made no difference if the walker rested or slept on a plastic sheet to prevent the damp, or in a sleeping bag to protect from the cold, or under a tarpaulin or in an open tent or in a closed tent to protect from the rain.
The fact that a tent was closed rather than open could not convert the wild camping from being an open-air recreation into not being one. The walker was still resting by sleeping and undertaking an essential part of the recreation.
Nor did it matter if the walker had not walked far when he rested or slept in that manner. Whatever people did in exercise of the right of access under section 10(1), they had to travel only on foot or on horseback and abide by the restrictions in the byelaws and in schedule 2 to the 1949 Act, which imposed restrictions on the exercise of the right of access, but without mentioning camping.
(4) Therefore, the grant to the public of “a right of access to the [Dartmoor Commons] on foot and on horseback for the purpose of open-air recreation” allowed members of the public to rest and sleep, whether by day or by night, whether on the ground or in a tent. The use of the word “open-air” did not mean that a tent could not be used for the necessary incidents of walking.
The clear meaning of the words of the 1985 Act could not be altered by the fact that the landowners’ property rights were to some extent infringed by that meaning. A statute might limit the rights of property owners, and that was what had happened by granting the rights of access to the public under the 1985 Act: Cadogan and another v McGirk [1996] EWCA Civ 1340; [1996] 2 EGLR 75 considered.
Accordingly, on its true construction, section 10(1) of the 1985 Act conferred on members of the public the right to rest or sleep on the Dartmoor Commons, whether by day or night and whether in a tent or otherwise, provided that the other provisions of the 1985 Act and schedule 2 to the 1949 Act and the byelaws were adhered to.
Timothy Straker KC and Vivienne Sedgley (instructed by Devon County Council) appeared for the appellant. Timothy Morshead KC (instructed by Irwin Mitchell LLP) appeared for the respondent; Richard Honey KC, Ned Westaway, and Stephanie Bruce-Smith for the intervener.
Eileen O’Grady, barrister
Click here to read a transcript of Darwall and another v Dartmoor National Park Authority
