Perhaps ominously for lovers of wild camping, the date Friday 13 of January 2023 saw the handing down of a judgment in the High Court that declared wild camping in Dartmoor, the only place in England where it was still believed to exist, to be unlawful, with immediate effect.
The well-publicised case was brought by wealthy landowners Mr and Mrs Darwall against the Dartmoor National Park Authority. The Darwalls sought a declaration as to the proper meaning of section 10(1) of the Dartmoor Commons Act 1985 (“the 1985 Act”). A declaration is a discretionary remedy available where rights are in dispute. It engages the Park Authority and provides a clear answer to a legal issue without the need for pursuing a specific cause of action, such as to sue a wild camper for trespass.
The Darwalls, who have owned the 4,000 acre Blachford Estate in Southern Dartmoor since 2013, sought a declaration that the 1985 Act does not confer, and never has conferred,on the public a right to camp overnight, even when such camping is “wild camping” by people on foot or horseback.
The sub-section provides as follows:
“Section 10 – Public access to the commons.
- 1. 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…”
The trial judge identified two legal questions that needed to be determined. First whether wild camping was “open air recreation” and secondly, if it was not, was wild camping a necessary ancillary right to any lawful recreational right such as walking?
Despite the obvious political ramifications of a case which pitched a wealthy hedge fund manager against the national park authority championing the interests of the public, the issue for the court was in reality a matter of interpretation of the statute. The judge is required to approach this task not by looking at what he or she thinks the law should be, or even as here, how most people have understood it for decades, but by ascertaining, objectively the meaning that parliament intended (in 1985) looking the words in the Act.
The senior judge Sir Julian Flaux held that the meaning of S.10 was “clear and unambiguous” and wild camping could not be considered either open-air recreation or a necessary ancillary right. On the first point, the judge accepted the Darwalls' argument that wild camping in tents was not the recreational activity, but the tents provided merely the facilities for the recreation of walking or riding. The emphasis here is on the first part of S.10, namely that it is a right to access (or as the Darwalls' barriter put it a ‘right to roam').
On the second issue, of whether wild camping was ancilliary, the judge found that it was not a necessary incidental right to camp on Dartmoor, because even when walking, there would always be alternative options to overnight wild camping, given that no part of Dartmoor is more than five miles from a road.
The Birketts View
Whilst the judgment is clear, the counter argument is easy to see. Supporters of the Park Authority would argue that the act of wild camping is itself the ‘open air recreational activity', and thus permitted within s.10, not just the ‘facility' for it? If the answer was so clearly against them, they would argue, why has it taken over 35 years of well documented, well organised wild camping for example by Duke of Edinburgh or Ten Tors participants, for this to be challenged and brought to court?
This is not to cast a view on what the law should be. There are plainly competing interests of landowner and members of the public, and it is arguably a matter for parliament, not the courts, to set the law. The issue decided in this case is whether the law, properly interpreted, permits wild camping in Dartmoor or not. For now the High Court has ruled that wild camping is not permitted as ‘open air recreation'. The Park Authority has indicated an intention to appeal.
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