Following a recent High Court decision in the case of Darwall v Dartmoor National Park Authority  EWHC 35 (Ch), the right to wild camp without permission of the landowner has been banned in Dartmoor National Park. Until the High Court ruling, the area was the last remaining place in England and Wales where wild camping was permitted without seeking permission.
The Claimants, Alexander Darwall and his wife Diana Darwall, own and live on the Blachford Manor Estate on Dartmoor. Part of the Estate includes an area of Dartmoor Common where Mr and Mrs Darwall keep animals and manage the land for conservation purposes. As a result of a number of incidents affecting their livestock and the surrounding environment, Mr and Mrs Darwall brought a successful legal challenge against Dartmoor National Park Authority (“DNPA”) to prevent wild camping on their land without consent.
The right to wild camp
In England and Wales, the general rule is that you must have express permission from the landowner in order to wild camp on their land. However, since 1985 members of the public have enjoyed wild camping on the Dartmoor Commons (the “Commons”) under what they believed was a right granted in the Dartmoor Commons Act 1985 (the “1985 Act”).
Section 10(1) of the 1985 Act states that ‘…the public shall have a right of access to the commons on foot and on horseback for the purpose of open-air recreation…’. The key point of interpretation in the case was to determine whether “open-air recreation” extends to a right to camp on the Commons overnight without permission of the landowner.
The meaning of open-air recreation
The Claimants asserted that the rights granted by section 10(1) of the 1985 Act did not extend to a right for the public to camp or wild camp without consent. They argued that the wording ‘for the purpose of open-air recreation’, included ancillary rights such as the right to walk a dog, to sit down and have a picnic or to stop and enjoy the view. However, camping was not such an ancillary right by way of necessary implication. The DNPA disagreed, arguing that wild camping was an accepted part of Dartmoor and a necessary incident of the right to roam, disputing the narrow interpretation of the 1985 Act put forward by the Claimants.
Finding in favour of the Claimants, the Chancellor of the High Court, Sir Julian Flaux, held that the starting point is that prior to the introduction of the 1985 Act, there was no legal right to roam on Dartmoor, and specifically the Commons. Therefore, since there was no right of access or to roam, ‘it seems impossible to argue that there was a right to wild camp without consent of the landowner’.
The Chancellor held that the meaning of section 10(1) of the 1985 Act is clear and unambiguous – it confers the right to roam on the Commons and this does not include a right to wild camp without permission. The contention that wild camping is ancillary to the right of access therefore fails the test of necessary implication.
The argument put forward by the DNPA that wild camping was a settled practice and therefore an accepted part of local custom which has the force of law, despite section 10(1) of the 1985 Act, was rejected. The Court expressed serious reservations about whether the principles of “customary meaning” or “settled practice” could be used to decide that a statute has a different meaning.
What will happen next?
It is important to note that the decision only prevents wild camping on the Commons without consent. In fact, since the decision last week, an “agreement in principle” has been reached between the Dartmoor Commons Owners’ Association and the DNPA to allow wild camping in specific areas marked on an interactive map. This agreement will require wild campers to adhere to guidelines based on the principle of “leave no trace” and a nominal fee will be paid by the DNPA to landowners.
Arguably this removes the “wild” element of such camping, but as things stand, those wishing to camp in these areas will have to comply with the guidelines unless the decision is overturned in any subsequent appeal.
One of the key areas the case considered was what rights were granted by section 10 Dartmoor Commons Act 1985. In particular, whether “open-air recreation” could be said to include the right to wild camp.