The case was brought against Dartmoor National Park Authority (DNPA) by Alexander and Diana Darwall.
What is the significance of this case?
The High Court decision is of significant interest among the right to roam sector and landowners given the perception that the only right to wild camp in England and Wales has been extinguished.
However that perception is mistaken and, in reality, this judgment focused on the interpretation of the wording used within the 1985 Act, determining that camping did not fall within the meaning of “open-air recreation” and therefore confirming that no such right had ever existed nor had such a right been created by the 1985 Act.
This is notwithstanding DNPA’s submission that camping on Dartmoor National Park (Dartmoor) had become ‘settled practice’, and that the statute should be interpreted on that basis.
What is the background to this decision?
The Commons, situated in Devon, is unenclosed moorland which is privately owned but on which other locals have the right to keep their livestock.
In 1951, Dartmoor National Park, which includes part of the Commons, was designated under the National Parks and Access to the Countryside Act 1949. S10(1) of the 1985 Act gives the public “a right of access to the Commons on foot and on horseback for the purpose of open-air recreation”.
Devon County Council (DCC) had been responsible for the management of Dartmoor until its functions were taken over by DNPA as the National Park Authority.
In 1989, pursuant to the 1985 Act DCC issued byelaws setting out rules, one of which regulated camping although did not prohibit wild camping on the Commons. In 2021, DNPA consulted the public on amendments to the byelaws.
Concern over impact
The claimants, Alexander and Diana Darwall, own an estate on Dartmoor, part of which forms an extensive area of land in a remote section of the Commons, known as Stall Moor. The claimants keep cattle, lambs and fallow deer on the Commons and had become concerned about the impact of wild camping on the welfare of their livestock.
They objected to the proposed amendments, asserting that s10(1) “does not extend to the right for the public to camp or wild camp”. DNPA disagreed.
The Darwalls then sought a declaration from the court that s10(1) does not give the public a right to camp on the Commons. DNPA argued that wild camping on the Commons was part of the “open-air recreation” for which access on foot and horseback had been provided by the 1985 Act and that the statute had been interpreted in this way, so that wild camping had become “settled practice”.
The court’s decision
The court held that, before the introduction of the 1985 Act, members of the public did not have a right to camp on the Commons and it had not been the intention of the statutory regime to give more than a right to roam.
The meaning of s10(1) was “clear and unambiguous”; it conferred a right to roam on the Commons, which included ancillary rights such as the right to walk a dog, to sit down and have a picnic, or to stop and enjoy the view. However, it did not include a right to wild camp without permission.
Other Parliamentary Acts considered
The judgment in this case provides a useful summary of the principles of how the law should be interpreted and, in the course of proceedings, a number of other Acts of Parliament dealing with the scope of public rights of access were considered.
For instance, reference was made to the National Parks and Access to the Countryside Act 1949 which distinguished camping from “open-air recreation”, treating it as a facility to open-air recreation, and that was consistent with the Darwalls' interpretation of the 1985 Act.
The court also cited the Countryside and Rights of Way Act 2000 which, subject to restrictions, confers access rights to the public for the purposes of open air recreation, although does not entitle a person to camp.
As a principle of statutory interpretation, DNPA’s argument that there was “settled practice” giving a right to wild camp and that s10(1) should be interpreted on that basis was controversial.
In any case, the court had already determined the meaning of s10(1) and found that the evidence relied upon by DNPA fell short of establishing a “settled practice” of a right to camp on the Commons in the 37 years since the 1985 Act had been introduced.
Therefore, the judge did not consider it necessary to determine the merits of the “settled practice” principle and it is yet to be seen whether this principle has a role to play in any future decisions surrounding the interpretation of statute.
Had s10(1) given a right to wild camp on the Commons without compensation, the judge commented that this would have amounted to a sufficient interference with the landowners’ property rights. However, the statute had not been construed in that way.
Clarity on rights
Finally, it was appropriate to make the declaration (i.e. that a legal right to camp on Dartmoor did not exist) to ensure DNPA and the public were clear on their rights, and this was the preferred remedy to any potential action against individuals for trespass.
What does the decision mean?
The outcome of this case makes it clear that those wishing to wild camp on Dartmoor should first seek permission from landowners. The NFU understands that DNPA has now agreed to endorse a new permissive system for backpacking/wild camping involving payment to landowners, agreed in principle with the Dartmoor Commons’ Owners Association, and has also taken the decision to apply for permission to appeal this judgment.
The NFU recognises the need for a balance to be struck between the interests of the public and landowners and is pleased to note that an agreement in principle has been reached.