The claimants owned an estate on Dartmoor which included an area of unenclosed moorland forming part of Dartmoor Commons. Being concerned about the potential harm caused by people camping in areas that were not designated campsites (“wild camping”), they brought a claim against the Dartmoor National Park Authority seeking a declaration that the public’s “right of access to the commons on foot and on horseback for the purpose of open-air recreation”, conferred by section 10(1) of the Dartmoor Commons Act 1985, did not include a right to camp on the commons overnight without permission. The judge allowed the claim, holding that wild camping was not part of the “open-air recreation” for the purpose of which the “right of access” was provided under section 10(1) and that the right to wild camp without the landowner’s consent was not an implied right ancillary to that right of access. A declaration was granted that, on its true construction, section 10(1) did not confer on the public any right to pitch tents or otherwise make camp overnight on the commons, which would require the landowner’s permission.
On the defendant’s appeal—
Held, appeal allowed. Section 10(1) of the Dartmoor Commons Act 1985, which granted the public a right of access by the means specified for the purpose of open-air recreation, provided that access could only be achieved on foot or on horseback, but the words of section 10(1) did not naturally limit the kind of open-air recreation to those undertaken on foot or on horseback. Further, the 1985 Act said nothing about the right to roam. The critical question was whether “open-air recreation” should properly be taken to include wild camping. The meaning of the words in section 10(1) was clear and unambiguous. Resting or falling asleep, whether by day or by night, whether on the ground or in a tent, were necessary incidents of walking and accordingly part of open-air recreation. Members of the public were still exercising the right of access under section 10(1) as long as they were on foot or on horseback and observed the restrictions in section 10(1), the rest of the 1985 Act, the byelaws and Schedule 2 to the National Parks and Access to the Countryside Act 1949. Those restrictions provided a workable structure whereby a proper balance could be preserved between the rights of those accessing the commons and the rights of the owners of the land and others. Section 10(1) conferred a right to engage in wild camping subject to those restrictions (paras 5, 46–61, 62–72, 73).
Per Underhill LJ. It is likely that Parliament’s intention in enacting section 10(1) of the 1985 Act was to confer a general right to engage in open-air recreation on the commons, subject to restrictions of the various kinds specifically provided for. It may be that further restrictions are required in order to try to address the increased level of problems being reported by landowners dealing with the consequences of the irresponsible exercise of this right. But whether that is so is a matter not for the court but for the National Park Authority, to whom Parliament has entrusted the responsibility for making the byelaws (paras 66, 72).
Timothy Straker KC and Vivienne Sedgley (instructed by County Solicitor, Devon County Council, Exeter) for the defendant.
Timothy Morshead KC (instructed by Irwin Mitchell LLP) for the claimant.
Richard Honey KC, Ned Westaway and Stephanie Bruce-Smith (instructed by Richard Buxton Solicitors, Cambridge) (all acting pro bono) for the Open Spaces Society, intervening.