Carry on Camping – In our latest ‘Sun’s Out, Legal Issues About!’ series of short property law-related articles, Stephen Barratt comments on the Supreme Court’s decision in Darwall v Dartmoor National Park Authority [2025] UKSC 20.
CARRY ON CAMPING – THE SUPREME COURT’S DECISION IN DARWALL v DARTMOOR NATIONAL PARK AUTHORITY [2025] UKSC 20
Dartmoor is the fourth oldest National Park in the UK visited by something around 2 million day visitors each year. For those unfamiliar with it, Dartmoor is a famously “wild” upland area in Devon, South West England. The underlying granite is weathered in places to expose its iconic tors. Sheep farming is extensive. Cattle and ponies are also grazed. Dartmoor is notoriously difficult to navigate in bad weather. There are three military training areas. For the adventurous, ‘wild camping’ has been a particular draw. In 2022, however, some landowners started proceedings to establish that the public right of access to the Dartmoor 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 grant the public a right to camp.
The Issue
The Supreme Court had to decide whether the public had a right to pitch tents or otherwise make camp overnight (wild camp) on the Dartmoor commons (“the Commons”). The Commons are areas of unenclosed moorland within the National Park which are privately owned, but on which other locals have a right to put their livestock. They comprise some 37% of the area of the National Park and 75% of the moorland in the National Park. The public right of access to the Commons under section 10(1) of the Dartmoor Commons Act 1985 (“the 1985 Act”), is in the following terms:
“the public shall have a right of access to the commons on foot and on horseback for the purpose of open-air recreation”.
The Landowners’ Pitch
The landowners argued that the right of access to the Commons for the purpose of open-air recreation under section 10(1) was qualified, in that the open-air recreation in question had to be of a kind which was carried out on foot or on horseback and did not cover any form of recreation which involves cessation of walking or riding. Put thus (and in case anyone suspects the preceding summary has been phrased for effect, it follows Paragraph 16 of the judgment in the Supreme Court of the Supreme Court very closely) one wonders quite how the issue managed to be litigated as far as it was.
The Law
The Supreme Court held that deciding the issue engaged the normal principles of statutory construction (see the leading statement of principle given by Lord Hodge in R (Project for the Registration of Children as British Citizens) v Secretary of State of the Home Department [2022] UKSC 3; [2023] AC 255 [29], to which the judgment refers).
The view of Lord Sales and Lord Stephens (with whom the rest of the five-judge panel agreed) was that – as a matter of ordinary language – camping is a form of “open-air recreation”, and therefore members of the public who have entered the Commons on foot or on horseback are entitled to camp there.
This interpretation, although properly borne out by the wording of section 10(1) alone, gained further support from the legislative context including the 1985 Act and the National Parks and Access to the Countryside Act 1949 (“the 1949 Act”, under which the Dartmoor National Park was designated in 1951).
The appeal was dismissed. The narrow reading of section 10(1) called for by the appellant landowners was rejected as absurd in preventing any form of recreation on the Commons other than simply being there. Visitors to the Commons will no doubt be reassured that picnics are permitted.
Moor Law
Section 193 of the Law of Property Act 1925 provides that the public “shall … have rights of access for air and exercise to any land which is a metropolitan common within the meaning of the Metropolitan Commons Acts 1866 to 1898”, provided that “(c) such rights of access shall not include any right to draw or drive upon the land a carriage, cart, caravan, truck, or to camp or light any fire thereon …”. The Dartmoor Commons is obviously not a metropolitan commons.
Part V of the 1949 Act granted access “for open-air recreation” to areas in relation to which specific access agreements or orders were effective. By the Second Schedule to the 1949 Act, certain activities are excluded, e.g., lighting fires and littering. Camping is not restricted by the Second Schedule (this is left to the access agreements). Only 5% of Dartmoor was ever subject to such an access agreement/order. There was, therefore, no legal right to access most of the Commons prior to the 1985 Act (although there was de facto access).
Section 10(1) of the 1985 Act provides in full:
10. – (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; 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 liability by reason of only of so entering or being on the commons.
The 1985 Act cross-references certain sections of the 1949 Act and the Second Schedule thereto and further incorporates (by section 11) the power to make bye-laws under the 1949 Act as if the Commons were land comprised in an access agreement.
Section 2 of the Countryside and Rights of Way Act 2000 (“the 2000 Act”) provides the public with a right of access to areas of countryside “for the purposes of open-air recreation”, subject to restrictions including camping. The 2000 Act does not apply to the Commons because the area is excluded as already accessible by virtue of a private act (the 1985 Act).
Analysis
High Court
Perhaps the most surprising aspect of the case is that, at first instance, The Chancellor, Sir Julian Flaux, granted the relief sought by the landowners in the form of a declaration 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 the Commons. Although, as the Supreme Court noted at paragraph 17(v), he “rightly did not adopt the extreme interpretation of section 10(1) contended for by Mr Morshead at the hearing before us”, the Chancellor accepted the landowners’ submission that the phrase “for the purpose of open-air recreation”, employed in both the 1949 Act and the 1985 Act, was being used to describe the right to roam (i.e., a jus spatiandi rather than a right of way). Additional activities such as having a picnic, walking a dog, or birdwatching were allowed on the basis that they were ancillary to this right (although no reason was provided why these activities should necessarily be implied while camping was not).
The Chancellor found contextual support in the scheme of the 1949 Act, in so far as he considered it drew a distinction between the enjoyment of open-air recreation on the one hand and facilities for that enjoyment (including, by section 12, campsites) on the other. He categorised camping as “a facility to enable the person in question to enjoy the open-air recreation of hiking”. The Judge was not prepared to accept that someone would access Dartmoor for the purpose of wild camping as a form of open-air recreation per se, as they would for, e.g., rock climbing.
Court of Appeal
The Court of Appeal (Sir Geoffrey Vos MR, Underhill LJ and Newey LJ) upheld the appeal by Dartmoor National Park Authority (“the DNPA”). Dealing with the relevant legislation first, Geoffrey Vos MR considered that the express provision under section 12 of the 1949 Act for the provision of formal camping facilities did not inform the right of access granted separately under Part V of the 1949 Act, the meaning of which was at large (subject to the restrictions specified within the Second Schedule and elsewhere).
Nor did he accept that section 10(1) limited the kinds of open-air recreation to those undertaken on foot or on horseback. The critical question was, therefore, whether the phrase “open-air recreation” should properly be taken to include wild camping. Having considered the status under the 1985 Act of a putative walker who lies down for a rest and either remains awake, or falls off to sleep (either on the ground or with a plastic sheet, or in a sleeping bag, or under a tarpaulin or in a tent) he concluded that the right of access to the Commons under Section 10(1) “does allow members of the public to rest and sleep, whether by day or by night whether on the ground or in a tent”. According to the Master of the Rolls, resting by sleeping was an essential part of the recreation.
Underhill LJ agreed that section 10(1) did more than confer a right to roam (i.e., a right derived from, or consisting in the right of access on foot or on horseback itself). He concluded that section 10(1) confers not just a right of access (together with recreational activities derived from or consisting in the right of access itself, as alleged by the landowners) but also a positive right to engage in activities for the purpose of the which the right was granted, i.e., open-air recreation. The result of the landowners’ submissions would have been to prevent the public from engaging in any activity on the commons over and above simply being there. The extension of the right to include ancillary activities (as referenced by the Chancellor) was too uncertain to have been intended.
Supreme Court
The Court found, apparently without any difficulty, that camping is a form of “open-air recreation” as a matter of ordinary language (a conclusion rejected by the Chancellor but arrived at via the process of logical thought, enunciated above, by Sir Geoffrey Vos MR). The Court rejected (likewise the Court of Appeal) the landowners’ contention that the open-air recreation in question can only be in forms which are pursued by proceeding on foot or on horseback. Having gained access to the commons on foot or on horseback, the Court concluded (at paragraph 17(iv)):
“one can stop to pursue any kind of “open-air recreation” which falls fairly within the meaning of that phrase, which would include having a picnic, camping or other activities such as rock climbing”.
The Court found support for this construction in the language used in (and the structure of) the 1949 Act. Unlike the Chancellor, who considered ([2023] EWHC 35 (Ch), at paragraph 83) that “the 1949 Act clearly did not confer a right to wild camp without permission on land the subject of an access agreement”, the Court found that the meaning intended by “open-air recreation” in the 1949 Act was its ordinary wide natural meaning, which covered camping. This, in the Court’s view, was supported by the drafters’ specific exclusion of certain activities (e.g., organised games, littering, hunting, shooting, fishing, lighting fires) which would otherwise fall within that meaning. The power delegated to local planning authorities to make byelaws further supported the conclusion that it was intended by the 1949 Act that:
“26 … the public should be able to look at the scheme of public regulation to know what they are not entitled to do by way of engaging in such reaction, rather than being vulnerable to claims in trespass by the private owners of land which comprises the open countryside to which the right of access is given”
The same reasoning applied to section 193 of the 1925 Act: the express exclusion of a right to camp indicated that the ordinary meaning of “for air and exercise” included camping. The Court considered that section 193 was in para materia with section 10(1) of the 1985 Act.
The Court described the intended effect of the access provisions contained within the 1985 Act as restricting landowners’ right to protect their property (i.e., through private law actions) but also granting – via the DNPA’s powers to publish notices regulating or prohibiting particular activities and to make and enforce byelaws applicable to the whole area of the Commons – a scheme of public regulation likely to be more effective in protecting the land than attempts by individual landowners to confront wrongdoers and then bring a private law claim (impractical to pursue against a wild camper). Such a scheme can only operate if the right of access granted in the first instance is unqualified (except by the wide ordinary meaning of the words used), so that the public (and landowners) can look to the scheme to identify which activities are controlled or prohibited. The Court found it difficult to see why the DNPA should be empowered (under section 13(1) of the 1985 Act) to bring actions for trespass which did not relate to its own regulatory activities.
Other matters
Hansard
There was no scope to rely on Hansard as an interpretative aid because the Court had found no ambiguity in the 1985 Act. The Court found there was no basis separate from the rule in Pepper v Hart to ground the admissibility of a statement in Hansard to identity the context of the legislation and its purpose or the mischief which it aims to put right (see paragraphs 39 – 43):
“On a purposive approach to interpretation of a statute, identification of the purpose or mischief is capable of directly affecting the meaning given to words used by Parliament. Therefore, in both cases, the point of making reference to Hansard is to contend that it affects the proper interpretation of the statute, and there are no good grounds to distinguish between them as regards the relevance of the guidance given in Pepper v Hart.”
The Principle of Legality
The principle of legality (fundamental rights cannot be overridden by general or ambiguous words) was not engaged because the Court had concluded there was no ambiguity in the language used.
Joinder of the AG
The landowners were seeking to restrict the interests of the public. The DNPA does not represent the public. Therefore, the Attorney General ought to have been joined in the action to represent the public, and “it was only if the Attorney General was a party to the proceedings that a declaration could be made binding the public” (see paragraphs 54 – 59).
Practical considerations
So, can you ‘Go Wild in the Country’?
The answer is not totally. Schedule 2 to the 1949 Act (incorporated by the 1985 Act) contains a list of restrictions to be observed by persons having access to open country or waterways.
The Court’s judgment confirms that a positive right to camp is conferred on the public by section 10(1) of the 1985 Act, and with respect to such activity the landowners’ private law right to sue in trespass is displaced. Prospective campers must pay regard to the relevant byelaw, 6, which provides:
“6 Camping
1. No person shall knowingly use any vehicle, including a caravan or any structure other than a tent for the purpose of camping on the access land or land set out fore the use or parking of vehicles except on any area which may be set apart and indicated by notice as a place where such camping is permitted.
2. No person shall knowingly erect a tent on the access land for the purpose of camping
(a) in any area listed in Schedule 2 to these byelaws. [Schedule 2 contains a list of area on the Moor and commons where camping is prohibited]
(b) within 100 meters of any public road or in any enclosure.
3. No person shall camp in a tent on the same site on the access land for more than two consecutive nights, except on any area which may be set apart and indicated by notice as a place where such camping is permitted”
The DNPA has made available an interactive map of the parts of the Commons on which camping is permitted. It is accessed by following this link. Consideration must also be given to the live firing times, during which access to the military ranges is prohibited.
Stephen has a busy civil practice, with specialist areas that include residential and commercial property matters. He has a particular interest in cases involving land and is looking to expand his practice in terms of cases involving agricultural, coastal and moorland legal points.
If you wish to discuss anything in this article or you want to instruct Stephen you can contact his clerk on jamie@kbgchambers.co.uk
