Wild-camping on Dartmoor: a note on the legal background to Darwall v Dartmoor National Park Authority [2023] EWHC 35 (Ch) 16 January 2023
There is an intense social and political debate in many parts of the United Kingdom at present, but in particular the upland areas of northern and north-west England, Scotland, Wales and the West Country, as to how the competing demands and objectives of agriculture, recreation and wildlife conservation should best be reconciled. This debate is perhaps at its sharpest and most intense around the concept of “re-wilding”: the circumstances in which conservation efforts should seek to return land to a more natural ecological state with a lesser degree of human intervention, including if necessary by reintroducing apex predators. There is a large and very interesting body of non-legal literature on re-wilding, much of its spawned by the publication of George Monbiot’s well-known book “Feral” in 2013 and the subsequent establishment of the charity ‘Rewilding Britain’ in 2015. It is fair to say that the concept is a highly contested one.
At the same time, and in relation to many of the same contested landscapes, demands for greater public access to the countryside in England and Wales have become increasingly vocal. Compared to the position in Scotland, where a public ‘right to roam’ is well-established and the subject of statutory codification in the Land Reform (Scotland) Act 2003, the Countryside and Rights of Way Act 2000 provides only a very limited “right to roam” for the purposes of “open-air recreation” on “access land” (as defined in section 1(1) of the Act). Organisations which are presently campaigning for a greater degree of public access to land and rivers in England and Wales include ‘Right to Roam’, ‘The Land is Ours’ and (in relation to the issue of wild camping on Dartmoor, considered below) ‘The Stars are for Everyone’.
Dartmoor National Park provides an interesting example of where these debates and tensions are presently playing out. It is particularly interesting from a property lawyer’s perspective because Dartmoor has a unique legal framework which governs land-use on the moor, and which in general terms could be seen as having served as a model for subsequent moves to expand public access rights elsewhere, whilst striking a balance between the interests of the public and those of landowners and occupiers.
First, the upland area which comprises Dartmoor is, of course, a national park, governed in various respects by the Dartmoor National Park Authority in the exercise of statutory powers conferred by the National Park and Access to the Countryside Act 1949. There are also a number of Sites of Special Scientific Interest (SSSIs), established under the provisions of the Wildlife and Countryside Act 1981 and subject, as result, to a considerable body of retained EU law. These are subject to further regulation by Natural England, which is statutorily empowered to impose various powerful restraints upon the freedom of action of landowners, particularly graziers. I am, myself, presently involved in an appeal against Natural England’s refusal of consent to graze on one area of common land in the south of Dartmoor which has attracted considerable local and stakeholder interest and is presently due to be heard by way of public enquiry in March 2023.
This brings into play the private law perspective. The majority of the national park is “common land”: land which, though privately owned, is subject to the exercise of rights of common (a species of profit-à-prendre) registered under the Commons Registration Act 1965 (subject, in Devon, to some modification by provisions of the Commons Act 2006 because Devon is a “pilot area” for the purposes of the 2006 Act). There are many different commons on Dartmoor and so many different entries on the commons register, which is held by Devon County Council as the commons registration authority. Generally, the commons of Dartmoor are unenclosed areas, spread across the moorland and tors, used for grazing sheep which are hefted to the hillsides and hilltops, by also for grazing by semi-feral Dartmoor ponies.
There is a yet further layer of land-use regulation on Dartmoor, exercised through the provisions of the Dartmoor Commons Act 1985, which is (as the name suggests) Dartmoor-specific. The 1985 Act established the Dartmoor Commoners’ Council as the body responsible for “the maintenance of the commons and the promotion of proper standards of livestock husbandry thereon”: s.4(1). The Commoners’ Council was empowered under section 5 of the Act to impose and enforce regulations governing the exercise of rights of the common on Dartmoor. It uses those powers to define and refine the category of persons who would otherwise - by virtue either of their landownership or pursuant to rights of common registered under the 1965 Act - be entitled to exercise rights of common upon the moor, on a subscription/ membership-based model (as I understand it). It maintains, pursuant to its statutory obligation in section 1 of the Act, a separate register, known in at least some circles as the ‘Common Land Report’, which is more up-to-date and more specific than the commons register held under the 1965 Act. It details the persons who are actually entitled to exercise rights of common on Dartmoor at any particular time.
Finally, the origin of many of the common rights exercisable over Dartmoor is closely interwoven with a form of land tenure specific to the moor: “venville” tenure, which has only received scant judicial attention over the centuries. In Dance v Savery [2011] EWCA Civ 1250, venville rights were described as “ancient customary rights, granted by the Crown to landowners in particular parishes (“villes”), to graze their animals in the Forest on payment of a small sum of money (a “fine” corrupted to “Ven”)”: [28], per Etherton LJ. I have had briefly to consider the nature of venville tenure in my recent practice and it is safe to say that it is an esoteric but fascinating topic.
So Dartmoor is a real labyrinth for property lawyers.
It is against this complex legal backdrop that the decision of the High Court in Darwall v Dartmoor National Park Authority [2023] EWHC 35 (Ch) enters the scene. It is the first judicial decision, certainly in the higher courts, to consider the 1985 Act. It brings to bear a legal lens on the socio-political conflicts between landowners/graziers on the Dartmoor commons and those many members of the public who enjoy it for hiking and, as the 1985 and 2000 Acts term it, “open-air recreation”.
Though principally concerned with regulation of the commons for grazing, the 1985 Act requires the Commoners’ Council, in the exercise of its regulatory functions over the commons, to “have regard to the conservation and enhancement of the natural beauty of the commons and its use as a place of resort and recreation for enjoyment by the public”: section 4(1). So the public right to use Dartmoor for the purposes of recreation is plain on the face of the Act. Part III of the Act (sections 4 to 14, “Regulation of the commons”) is split into two: Part A concerns “Regulation of common rights by the Commoners’ Council” and Part B “Provisions concerning public access to commons”.
Darwall was a Part 8 claim for declaratory relief brought by a Dartmoor landowner, commoner and farmer against the National Park Authority. The Chancellor of the High Court, Sir Julian Flaux, was asked to interpret section 10 of the 1985 Act, headed “Public access to commons”, and to decide whether the public “right of access to the commons… for the purposes of open-air recreation” entitled members of the public to “wild camp” i.e. camp on private land on the moor that was not a designated campsite. The Commoners’ Council’s by-laws, made under the Act, did not prohibit wild camping, and it seems to have been uncontested that wild camping was a widespread and reasonably long-standing practice on Dartmoor.
The debate centred on the wording of section 10(1), which reads:
“(1) Subject to the provisions of this Act and compliance to commons 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; 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.” (emphasis added).
The public “right to roam” in section 10(1) was significant historically, as it was the first right to roam ever granted to the public, not only on Dartmoor but in England and Wales generally, save for small areas of “metropolitan common” to which section 19 of the Law of Property Act 1925 applied: [25].
The Chancellor agreed with the landowner’s contentions that wild camping was not part of the “open-air recreation” referred to in section 10(1), and that a right to camp was also not an “ancillary” right to the right of open-air recreation, because it did not satisfy the test of “necessary implication”. Thus, whilst the “right to roam” conferred by section 10(1) permits ancillary activities such as having a picnic, walking a dog or observing wildlife on the moor, it does not extend to a right to camp, for which there were various licensed campsites available. The Court relied, in part, upon the fact that the words “open-air recreation” were also found in the National Park and Access to the Countryside Act 1949, in a statutory scheme which treated camping as part of the “facilities” for the enjoyment of open-air recreation, not the recreation itself.
Thus, whilst activities such as rock-climbing apparently fall within the concept of “open-air recreation”, camping does not: “The open-air recreation in which they [wild campers on the moor] are engaging [in such circumstances] is the hiking not the wild-camping. The wild camping is… a facility to enable the person in question to enjoy the open-air recreation of hiking”: [80]. In other words, hiking was the “purpose” and the relevant recreational activity, camping mere a “facility” which enabled that purpose to be achieved. It was clear, in Flaux C’s view, that “It was never the purpose of the statutory provision to give more than [the] right to roam”: [84].
The Chancellor also found support for this conclusion in that fact that the regulation of wild camping was not part of the mischief which the 1985 Act was seeking to address, and was not intended to be the subject of control by by-laws passed under the Act: [76]. The argument, only faintly pressed in the National Park Authority’s written case, that there was a pre-existing common law customary right to camp on the moor was rejected: [86]. It followed that, prior to the passage of the Act in 1985, the landowner’s permission was required not only for camping but for access to the common land on the moor generally: [74]. There was nothing in the background to the Act to suggest that its enactment was intended to change this state of affairs. If necessary, Flaux C would have concluded that the statute should not be construed so as to interfere with landowners’ pre-existing property rights without compensation (the “principle against expropriation”: [85]).
Finally, the National Park Authority’s submission that the Act had been interpreted since its enactment on the premise that wild camping was permitted, such as to amount to a ‘settled practice’, was rejected. As a result, it was not necessary to consider the extent to which, if at all, a ‘settled practice’ as to the meaning of a statute could have a bearing upon its proper interpretation. The Court nonetheless expressed serious reservations as to whether it would ever be appropriate to decide the meaning of a statute on the basis of such a practice: [87].
The outcome of the case is that “the casual backpacker who wishes to wild camp requires permission from the landowner to do so”: [90]. Declaratory relief to that effect was granted in terms that “section 10(1) of the 1985 Act does not confer on the public any right to pitch tents or otherwise make camp overnight on Dartmoor Commons. Any such camping requires the consent of the landowner”: [96].
Much of the right to roam campaigning sector, and many outdoor organisations generally, are incandescent at that result, describing it variously as having “extinguished” or “overturned” a pre-existing right (or words to like effect).[1] As are well-known public figures, such as the landscape writer and academic Robert Macfarlane.[2] George Monbiot has, for his part, described the decision in Darwall as a “court ruling that terminated wild camping rights on Dartmoor: this is how landrights [sic] have been seized for centuries. Because the written title didn’t precisely specify these rights, they are deemed not to exist, though they are long practised and commonly understood”.[3]
Whatever one’s view may be on the policy question – on which I make no comment– the decision in Darwall was in fact nothing more than judicial interpretation of the words of a statute which, had best, had been presumed to confer a right to camp without that ever having been definitively pronounced upon or decided. Clearly the result of the case did not align with the long-standing view taken by the National Park Authority, being the main public-sector stakeholder, which is perhaps why it has such a significant impact. It might also be thought that the decision takes a fairly dissonant approach to the English language in reasoning that camping is not “recreation” (or, by necessary implication, a “recreational activity”) but rather merely a “facility” for such recreation to take place.
Be that as it may, it remains to be seen whether the National Park Authority will pursue an appeal. There is some suggestion in social media that it lacks the funds to do so, and so crowd-funding may be on the horizon. As the political temperature increases on this and similar issues, expect more to come in this area of the law. Us land lawyers, who generally prefer hiding away behind esoteric principles devoid of any apparent political salience, may find ourselves thrust into the fray. What an exciting time it is to be in property law.
[1] See e.g. https://twitter.com/Right_2Roam/status/1614208263335120896;
[2] https://twitter.com/RobGMacfarlane/status/1613857563610587137
[3] https://twitter.com/GeorgeMonbiot/status/1614648175591129088
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