National park – Common land – Access – Wild camping – Appellant landowners obtaining 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 – Court of Appeal allowing respondent’s appeal – Whether section 10(1) limited to open-air recreation “on foot or on horseback” – Appeal dismissed
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 appellants were farmers, landowners and commoners who had owned and lived at Blachford Manor on Dartmoor since 2013. Their land included a section of land called Stall Moor, which was part of the Commons. Section 10(1) of the 1985 Act provided: “Subject to the provisions of this Act and compliance with all rules, regulations or byelaws relating to the commons and for the time being in force, the public shall have a right of access to the commons on foot and on horseback for the purpose of open-air recreation…”.
In Autumn 2021, the respondent authority consulted the public on amendments it proposed to make to the byelaws relating to Dartmoor. The appellants were concerned about the potential harm arising from camping on the Commons near Stall Moor. They sought a declaration that section 10(1) did not grant the public a right to camp on the Commons. The High Court held that section 10(1) did not grant such a right: [2023] PLSCS 11.
The Court of Appeal allowed the respondent’s appeal: [2023] EGLR 33. The appellants appealed.
Held: The appeal was dismissed.
(1) The court ascertained the meaning of the words used in a statute in the light of their context and the purpose of the statutory provision. The starting point was the wording of section 10(1) itself. It was possible to get a clear understanding of the true meaning of section 10(1) by focusing on the words used.
There were several indications in section 10(1) that camping by individuals who entered the Commons on foot or on horseback was made a matter of entitlement by that provision. As a matter of ordinary language, camping was a form of “open-air recreation”. The structure of section 10(1) contemplated that the primary restriction of the right of access was by forms of regulation, which at the time the 1985 Act was passed did not prohibit camping. The words “on foot and on horseback” described the means by which the public were to have a right to gain access to the Commons. The second part of section 10(1) conferred an immunity from a claim in trespass by reference to the purpose for which a person had entered the Commons, not by reference to the means by which they gained access.
The High Court rightly accepted that rock climbing was a form of open-air recreation which was protected by section 10(1), even though it was not an activity which was engaged in by proceeding on foot or on horseback; but it distinguished rock-climbing from wild camping and held that camping could not be regarded as an open-air recreation. However, when applying section 10(1), it was not possible to draw a distinction between different forms of open-air recreation.
(2) The 1985 Act was a statute embedded in the regime established by the 1949 Act. Dartmoor was established as a National Park under the 1949 Act and the 1985 Act implemented in practical terms what followed from such designation. Also, the 1985 Act referred to the 1949 Act and was drafted to operate in conjunction with it. Accordingly, the 1949 Act provided part of the relevant context for the interpretation of section 10(1). The structure of the regime in the 1949 Act, including a power to make byelaws and the express prohibition of certain activities in schedule 2, indicated that the concept of “open-air recreation” had a wide natural meaning. The intention was that the public should be able to look at the scheme of public regulation to know what they were and were not entitled to do by way of engaging in such recreation, rather than being vulnerable to claims in trespass by the private owners of land which comprised the open countryside to which the right of access was given.
(3) The court’s interpretation was further supported by section 193(1) of the Law of Property Act 1925 which provided that members of the public “shall … have rights of access for air and exercise to any land which is a metropolitan common…”, but camping was specifically excluded by subsection (1)(c). The express exclusion of a right to camp indicated that, according to its ordinary meaning and without such exclusion, access to land “for air and exercise” included camping.
(4) The proceedings were brought by the appellants against the respondent seeking a declaration that section 10(1) did not grant “the public” a right to camp on the Commons. It was striking that the public was not represented. The courts had always recognised that persons interested were or might be indirectly prejudiced by a declaration made by the court in their absence. Except in very special circumstances, all persons interested should be made parties, whether by representation orders or otherwise, before a declaration by its terms affecting their rights was made. In the present case, there was a contest as to the subsisting and future legal rights of the public but the public was not a party to the proceedings.
The Attorney General represented the Crown in the courts in all matters in which rights of a public character came into question (unless an authorised government department could sue in its own name and was clearly the appropriate defendant). As the appellants were seeking to restrict the interests of the public, the Attorney General ought to have been joined as defendant in the proceedings in addition to the respondent given that no authorised government department was identified clearly as the appropriate defendant. When joined as a party, it would have been a matter for the Attorney General to decide what part to play in the proceedings. It was only if they were a party to the proceedings that a declaration could be made binding the public.
Timothy Morshead KC and Tom Morris (instructed by Irwin Mitchell LLP) appeared for the appellants; Richard Honey KC and Vivienne Sedgley (instructed by Devon County Council Legal Services) appeared for the respondent; Ned Westaway, Esther Drabkin-Reiter and Stephanie Bruce-Smith (instructed by Richard Buxton Solicitors, of Cambridge) appeared for the intervener (The Open Spaces Society)
Eileen O’Grady, barrister
Click here to read a transcript of Darwall and another v Dartmoor National Park Authority
