Stephanie Hepburn and Chloe Imrie discuss the outcome of the newsworthy English case of Darwall v Dartmoor National Park Authority and the contrasting positions between Scotland and England's laws on the right to responsible access.
The right to roam is a fundamental aspect of outdoor recreation, allowing individuals to freely explore and enjoy the natural environment. However, while both Scotland and England boast beautiful scenery, they have each taken a different approach to the public's access to this landscape.
The Scottish position
Scotland's right to roam (more correctly described as the public right of responsible access) is renowned for its progressive stance on access to the outdoors, set out in the Land Reform (Scotland) Act 2003. This legislation allows everyone access to most land and inland water in Scotland for recreational and other purposes, including walking, cycling and wild camping. This extends to private land, so long as the access is taken responsibly. We have written a detailed guide on the right to roam in Scotland, and the public's rights and responsibilities here.
The English position
In contrast, England does not have a universal right to roam similar to that embodied in the Land Reform (Scotland) Act 2003. Instead, it operates under a mixture of public rights of way, such as footpaths and bridleways, and the Countryside and Rights of Way Act 2000, which provides a limited right over areas designated as "access land". Members of the public can access by foot only, for the purposes of "open-air recreation", provided that they do so without damaging any walls, fences, gates, stiles or hedges. Unlike Scotland, England's approach does not grant individuals access to privately owned land as a general right. Permission must be sought from landowners before venturing onto their property which limits access to large parts of the English countryside.
There has been growing political pressure to expand the right to roam in England, through various campaign groups, and it is likely land reform in England will feature on the political agenda at the next general election.
Darwall v Dartmoor National Park Authority
The limits on public rights of access in England were most recently shown in the case of Darwall v Dartmoor National Park Authority which considered whether wild camping was allowed on Dartmoor Commons. Dartmoor has a unique legal framework, which governs the access to the moor and Mr and Mrs Darwall, owners of an estate on Dartmoor, sought a declaration that Section 10(1) of the Dartmoor Commons Act 1985 (which provides that there is a public right of access "on foot or on horseback" for "the purposes of open-air recreation") does not extend to a right for the public to camp or to wild camp.
Is camping "open-air recreation"?
The judge, Sir Julian Flaux, Chancellor, was asked to consider if "open-air recreation" included wild camping. His decision has had wide-reaching implications for the interpretation of access rights in England as a whole.
The Darwalls argued that the right to roam had never included the right to wild camp without the permission of the landowner. The Park Authority argued that the right to camp without the consent of the landowner was implied – the right to camp flowed from the right to access the land.
The judge ultimately decided that camping could not be defined as recreational, but rather as an activity ancillary to open-air recreation. For example, camping would facilitate hiking – the recreational activity is not the camping itself, but the hike. The purpose of access was for the recreational activity of hiking; it could not be said the land was accessed purely to camp. Therefore, wild camping was not included in the right to access the land, and permission would have to be sought from the landowner before a tent could be pitched.
It has long been thought by both nature enthusiasts and park authorities in England that the right to roam extended to the right to camp, but Darwall shows the limitations placed on access rights in England.
The Dartmoor National Park Authority has been given permission to appeal the decision, with the appeal set to be heard on 18 July 2023.
It is interesting that wild camping in Scotland falls under the remit of recreation, but not in England. There is a lot of political and legal discussion around the Darwall case in England, which has attracted the attention of campaign groups seeking to widen access rights in England. Despite this, the Darwall case is one of statutory interpretation of the 1985 Act, which had been previously presumed to include wild camping without a determinative judicial decision on the matter.
Much to the disappointment of many, including the Dartmoor National Park Authority, we now have a judicial decision which, unless overturned following the appeal, provides clarity as to the law surrounding the right to roam and wild camping in England, which is decidedly narrower than that in Scotland.
This article was co-authored by, Chloe Imrie, Trainee, Dispute Resolution and Litigation.
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