Dartmoor and the Right to Wild Camp: Whigs and Hunters for the 21st Century?
30 March 2023
[UPDATE: on 31 July 2023 the Court of Appeal allowed Dartmoor National Park Authority’s appeal against the judgment considered in this post. It is interesting to note the similarities between the line of reasoning followed by Sir Geoffrey Vos MR at §55-§57 of that judgment and some of the arguments made below. This is a welcome development and it is hoped that the attention brought to the issue of public access to the countryside by this case will result in future reforms in this area.]
“The principal issue in this case is whether section 10(1) of the Dartmoor Commons Act 1985 (“the 1985 Act”) confers on the public a right not only to walk or ride a horse on the commons but also to camp there overnight.”
This is the beguilingly simple opening to the judgment of Sir Julian Flaux C. in the case of Darwall and Darwall v. Dartmoor National Park Authority [2023] EWHC 35 (Ch), which was handed down on Friday, 13 of January 2023.
That Friday the 13th was indeed unlucky for the wild camping community, if not wider society. For with the handing down of that judgment, the last remaining rights to wild camp without the permission of the landowner in England and Wales were extinguished.
This case, therefore, represents more than just a landowner seeking to prevent campers using their land without permission. Rather it is a further step in the seemingly inexorable privatisation of the English Countryside for the benefit of the few, to the detriment to the many, and with the full-throated support of the law.
In considering this unfortunate development, I will first set out the background to the case, then examine the reasoning underpinning the judgment. I will then situate this case in the wider context of public access to the countryside, and ask whether and how this public good can be reconciled with the private property rights of landowners in England and Wales.
The Background to the Case
What is meant by ‘wild camping’? Put simply, wild camping –or backpack camping as it is sometimes known– involves camping in the wild, outside of a formal campsite. As it has been practiced on Dartmoor, this form of camping often involves hiking to your chosen location and carrying everything you will need in your backpack and staying for a maximum of one or two nights.
Wild camping is, therefore by necessity, a lightweight and low impact form of camping. While some may find this back-to-basics approach to sleeping outdoors less than appealing, the physical and mental health benefits of such outdoor activities are so well understood as to be almost a given. Furthermore, in an increasingly urbanised and sedate modern world, there is a significant and diverse community of wild campers who relish the unique freedom, proximity to nature, and indeed sometimes challenges that wild camping affords. All this is to say nothing of the minimal expense involved, which renders wild camping an inclusive and accessible way to access and appreciate nature.
In general, if one wishes to wild camp in England and Wales, they require the permission of the owner of the land on which they propose to stay. This is in contrast with the position in Scotland, where a general right to wild camp (subject to the Scottish Outdoor Access Code) exists under the Land Reform (Scotland) Act 2003.
However, prior to the Darwall case, Section 10(1) of the Dartmoor Commons Act 1985 had been interpreted as granting a general right, subject to certain rules, regulations and byelaws, to wild camp on certain parts of the Commons in Dartmoor National Park without the relevant landowner’s permission. This meant that Dartmoor was thought to be the only part of England and Wales where one could wild camp without permission.
Section 10(1) of the 1985 act states:
(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 other liability by reason only of so entering or being on the commons.
According to the Dartmoor National Park Authority, wild camping had been previously understood to be encompassed by the idea of open-air recreation as it appears in that provision.
However, the Claimants disagreed. They are Dartmoor’s sixth largest landowners, and own an estate which includes an extensive area of open land in a remote area of the Dartmoor Commons. The Claimants brought the case seeking a declaration that Section 10(1) of the 1985 act does not extend to a right for the public to camp or wild camp.
The Arguments
The central issue in the case was, therefore, one of statutory interpretation. The Claimants argued that the ordinary meaning of the words of Section 10(1) did not encompass wild camping. Rather, the phrase ‘for the purpose of open-air recreation’ was, in their submission, a statutory formula to describe the right to roam. Nor, according to the Claimants, was the right to wild camp an ancillary right, necessarily implied in the rights granted by section 10(1).
The Claimants also contested the Defendant’s assertion that there was a custom of wild camping without permission on Dartmoor either prior to the passing of the 1985 act or arising subsequent thereto. The Claimants further argued that if the meaning of section 10(1) was ambiguous, the legislative background to the provision indicated that it was never intended to include a right to wild camp.
It was also argued by the Claimants that interpreting Section 10(1) so as to create a right to wild camp constituted an expropriation of the landowners’ rights. As such, in the absence of explicit statutory language this interpretation should be avoided in accordance with the presumption against expropriation (see: Bennion, Bailey and Norbury on Statutory Interpretation, 8th ed (2020), §27.6).
The Defendant’s case was that wild camping was an accepted part of Dartmoor and a necessary incident of the right to roam. The rights conferred by Section 10(1) were restricted only by reference to schedule 2 of the National Parks and Access to the Countryside Act 1949, which did not prohibit wild camping. As such, the provision should be interpreted broadly as permitting a wide range of recreational activities including wild camping.
The Defendant argued that since its coming into force, the 1985 Act had been interpreted as permitting wild camping and that this settled practice should also be taken into consideration in accordance with the principles proposed by Lord Carnwath in R. (On the Application of ZH) v. London Borough of Newham [2014] UKSC 62, §93-§95. (see also: Isle of Anglesey County Council v Welsh Ministers [2009] EWCA Civ 94 §43 per Carnwath LJ). The Defendant also relied on the legislative context behind the 1985 Act in arguing for this interpretation.
In response to the Claimant’s argument against expropriation, the Defendant argued that wild camping, as regulated by the applicable byelaws on Dartmoor, was only permitted for a short period of time and ought not be regarded as an unreasonable interference with the landowners’ rights. Indeed, the singling out of camping was, in the Defendant’s submission, wholly arbitrary given that the Claimants accepted that other sedentary uses of land such as picnicking were encompassed by Section 10(1).
Judgment
Having set out the relevant principles of statutory interpretation ([16]-[23]) the Chancellor of the High Court first examined the position on Dartmoor prior to the passing of the 1985 Act. After examining the relevant statutory provisions, the Court concluded that other than the very limited areas that had been subject to access agreements or designated as metropolitan commons, there was no legal right of access prior to 1985. It followed that there was, at that time, also no right to wild camp without the consent of the landowner ([73]-[74]). The Court also considered that the available evidence suggested there was not an established custom of deemed permission for wild camping on the commons at this time ([75]-[77]).
Turning to the question of whether Section 10(1) conferred a right to wild camp without permission, the Court agreed with the Claimant that the phrase ‘the right of access to the commons on foot or on horseback for the purpose of open-air recreation’ was the statutory formula being used to describe the right to roam on the commons. The Court held that the activities of having a picnic, walking a dog or observing wildlife were permitted recreational activities that were ancillary to this right to roam. Camping, however, was considered by the Court to be a facility for the enjoyment of open-air recreation rather than a form of open-air recreation in and of itself, and was not therefore permitted under Section 10(1)([78]-[79]).
Interestingly at [80] the Court sought to distinguish wild camping from rock climbing, another non-ambulatory activity. The latter, in the Court’s opinion, could be categorised as open-air recreation but the former could not. The Court reasoned as follows:
“…it seems to me to be a distortion of language to say of someone who has gone on a long hike on Dartmoor, taking more than a day and who pitches a tent to sleep for the night, that they have gained access for the purpose of wild camping. The open-air recreation in which they are engaging is the hiking not the wild camping. The wild camping is, as Mr Morshead KC correctly categorised it, a facility to enable the person in question to enjoy the open-air recreation of hiking.”
This distinction is, however, based on a rather simplistic and perhaps artificial view of the purpose and attraction of wild camping.
The idea that wild camping is only reasonably engaged in as part of a long hike or to facilitate such an expedition betrays a failure by the Court to understand or engage with the intrinsic recreational value that some may find in wild camping by virtue of simply sleeping under the stars in the solitude of nature. This narrow and reductive understanding of wild camping, however, forms a central plank of the Court’s reasoning.
At [81] the Court went on to find that wild camping without the consent of the landowner cannot be an implied right ancillary to the right of access granted under Section 10(1). This is because it apparently fails the requirement that such rights be necessarily implied by the substantive right to which they are said to be ancillary. In this regard, the Court held that:
“Any walker who wants to wild camp can always seek the permission of the landowner or, if in a remote place, take their chances on pitching a tent without the landowner knowing, whilst being prepared to move on if asked to do so. Alternatively, any walker can use one of the licensed campsites. It simply cannot be said that the right to wild camp without permission necessarily follows from the express provision in section 10(1) giving the right to roam on the Commons.“
The proposition that the would-be campers don’t necessarily need a right to camp to facilitate their right of access because they can simply ask the landowner for permission is, however, question begging. It does not, in principle, demonstrate that the right to camp on Dartmoor without permission is not necessarily required by the right of access for open-air recreation; if access to a certain area were contingent on the ability to camp, the refusal of the landowner would quite obviously frustrate the right of access.
The next suggestion that a walker in a remote area could ‘take their chances’ and camp without permission is perhaps somewhat surprising. The suggestion appears to be that campers don’t need the right to camp to facilitate the right of access, because if access were contingent on the ability to camp, they could, in the Court’s view, simply camp without lawful authority and hope for the best. It is surprising that this was considered a tenable legal argument as the effectiveness of this strategy would depend on the commission of an unlawful act.
Furthermore, the acceptance that there are remote parts of the Commons where it may be impossible to obtain landowner consent undermines the third proposition, that the existence of licenced campsites renders a right to wild camp unnecessary to facilitate access. What if a walker wished to exercise their right to access one of these more remote areas rather than one within reach of a licenced campsite?
Having decided that the plain language of Section 10(1) did not encompass a right to wild camp and that that right was not ancillary to the right to roam ([84]), the Court went on to examine the legislative background to the provision. It held that the sanctioning of wild camping was not in the contemplation of those involved in the legislative process. The court further found that the inclusion of a right to wild camp in section 10(1) would constitute a sufficient interference with landowners’ property rights to engage the principle against expropriation ([85]).
Finally, the Court stated that it shared the serious reservations expressed by Lord Neuberger and Baroness Hale in ZH about Lord Carnwath’s customary meaning or settled practice principle. In any event, the Court held that the material before it did not establish the settled practice of interpreting Section 10(1) of the 1985 Act as permitting wild camping without permission ([86]-[91]).
The Court went on to reject the Defendant’s submissions that it should exercise its discretion and refuse to grant the declaration sought. Rather it held that an appropriate declaration would assist good administration rather than the reverse and granted the declaratory relief sought.
Comment
The key finding in this judgment is that wild camping does not, for the purposes of the Dartmoor Commons Act 1985, constitute a form of ‘open air recreation’. While this sentiment may find furtive support among some of this Author’s own erstwhile expedition companions, it is at heart a value laden and contestable conclusion based on a narrow understanding of the activity of wild camping as practiced on Dartmoor.
The Court’s distinction between rock climbing as open-air recreation and picnicking as an activity ancillary to open air recreation on the one hand, and camping as a mere facility for open air recreation on the other, is indeed somewhat arbitrary. If one erects a light canopy to keep the rain off their sausage rolls, does that cross the line from permitted picnicking to culpable camping. What if one then falls asleep following a hearty picnic? Or, is the line instead drawn at overnighting? What then of the nocturnal activities of wildlife watchers or stargazers?
As suggested above, the relegation of wild camping on Dartmoor to a mere facility for other recreations also suggests a failure to engage with or appreciate the wider value placed by some in the activity in its own right. Indeed, the public reaction following the judgment demonstrates the cultural and societal value that many saw in wild camping on Dartmoor and perhaps indicates that the settled practice was somewhat more robust than the materials before the Court suggested.
Ultimately, as a result of this judgment there is now no part of England and Wales in which one may lawfully wild camp without the permission of the landowner. The right to do so that was believed by many to exist in a small part of the English Countryside has now been extinguished through the use of the law by wealthy landowners to consolidate their privilege. In this sense, the titular reference to E.P. Thompson’s Whigs and Hunters: the history of the Black Act (1975, Allen Lane) is at least somewhat apposite. Like the hunters of old in the forests of Hampshire, wild campers now find their outdoor pursuits outlawed and subordinated to the interests of better resourced elites who can find support in the law.
Following the judgment, Dartmoor National Park Authority announced an agreement with Dartmoor landowners, whereby the Authority will pay the landowners to allow part of their estates to be used by wild campers as before. However, this deal has been criticised on the basis that it will reduce the area available for camping from what it was previously, it is dependent on the continued agreement of the landowners, and it requires the payment of public funds to allow the continuance of an activity that had previously been free to all. The Authority are, however also seeking permission to appeal the High Court decision, though for the time being the declaration and its implications for the right to wild camp stand.
The Public outcry following the decision has not fallen on deaf ears. The Labour Party have indicated that if they were to enter government at the next election they will legislate to reverse the decision. The Shadow Environment Secretary, Jim McMahon, is reported to have commented that this case demonstrates that there needs to be a rethink of land access and that a Labour government would act to enshrine the right to wild camp on Dartmoor. However, it is hoped that any such legislation or reforms would recognise the need for a wider expansion of access rights across the country and not just on Dartmoor.
There is of course a degree of tension between greater public access rights and the private property rights of landowners. However, striking a reasonable and proportionate balance between these rights is not a fanciful aspiration. The situation that pertained on Dartmoor prior to the present case was workable and appeared to be acceptable to most landowners. That experience shows that robust byelaws and regulations ensuring that access and camping rights are exercised in a sustainable and socially responsible way must form the backbone of any new system, but the model is not novel. To see whether such a system could be workable on a wider scale than one discrete area such as Dartmoor, we must only look north to the Scottish experience.
Darragh Coffey is a barrister at 1 Crown Office Row
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