Case Comment: Darwall v Dartmoor National Park Authority

Rarely does a 'short point of statutory construction’[1] attract as much interest as the case of Darwall v Dartmoor National Park Authority, the litigation about camping on Dartmoor. But in many minds, the case has come to symbolise a clash between public interest and private property. This case comment analyses and endorses the judgment of the Court of Appeal, before warning against excessively broad assumptions about the public’s rights in relation to national parks.

The litigation

Background

Alexander and Diana Darwall own Blachford Manor, an estate which covers a remote section of the Dartmoor Commons. The Darwalls became concerned about the public’s impact on their estate and livestock. They raised this concern with the Dartmoor National Park Authority (DNPA), which disagreed with the Darwalls about the extent of the public’s rights over the Commons. This prompted the Darwalls to bring an action claiming that the public had no right to ‘wild-camp’[2] (i.e., camping not at a campsite) on the Commons. The DNPA defended the claim. Pivotal to the case was s.10(1) of the Dartmoor Commons Act 1985:

'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 …'[3]

Sir Julian Flaux, Chancellor of the High Court, agreed with the Darwalls. Considering the statutory background and the words of s.10(1), he concluded that it conferred a ‘right to roam’,[4] not to camp – the latter not being ancillary to the right of access granted. The Chancellor defined a right as ‘ancillary’ if the statute’s express words necessarily implied it when ‘construed in their context and having regard to their purpose’.[5] Failing to meet the threshold of ‘necessary implication’, camping was not ‘ancillary’ to (i.e., necessarily implied by) the ‘right to roam’,[6] whereas picnicking or dog-walking were. The Chancellor reasoned that this was because a walker could always seek the landowner’s permission to camp or ‘take their chances’ on pitching a tent without the landowner knowing, whilst being prepared to move on if asked to do so.[7]

The Court of Appeal’s decision

Sir Geoffrey Vos MR and Underhill LJ gave reasoned judgments. Newey LJ agreed with both. The Master of the Rolls recognised that the primary task was to interpret the words of s.10(1) of the 1985 Act.[8] He differed from the Chancellor by recognising that, syntactically, the adverbial phrase ‘on foot and on horseback’ qualified the ‘right of access’, not the nature of ‘open-air recreation’.[9] Once one appreciates this, it becomes clear that there is no reason to limit ‘open-air recreation’ to activities done exclusively on foot and on horseback. Walking is clearly part of open-air recreation. Is the walker who rests and falls asleep, perhaps on a groundsheet to keep out the damp or under a tent to keep out the weather, to be deemed no longer engaged in open-air recreation? The Master of the Rolls rightly acknowledged the illogicality of such a suggestion.[10]

The court also considered the legislative context. There are many provisions which regulate the Dartmoor Commons, such as Schedule 2 to The National Parks and Access to the Countryside Act 1949 and the DNPA byelaws. None of them include a prohibition of wild camping.[11] In fact, byelaw 6 expressly prohibits camping in ‘any structure other than a tent’, and prohibits camping in tents for more than two consecutive nights in the same place. This contains a strong implicit assumption – admittedly not conclusive of the statute’s meaning – that wild camping is permitted on the Commons.

This context gives particular force to the judgment of Underhill LJ, which views the 1985 Act as a scheme whereby Parliament grants the public a right to access the Dartmoor Commons for the purpose of open-air recreation, which is then qualified by the DNPA’s byelaws.[12] His Lordship acknowledged the implausible implications of the Chancellor’s position: that someone accessing the Commons to birdwatch or picnic would have to justify their activities as ‘ancillary’[13] to the right of access.

Evaluation

It is submitted that the Court of Appeal was correct to allow the appeal. The law is now clearly expressed in the conclusion of the Master of the Rolls:

‘section 10(1) of the Dartmoor Commons Act 1985 confers on members of the public the right to rest or sleep on the Dartmoor Commons, whether by day or night and whether in a tent or otherwise, provided that the other provisions of the 1985 Act and schedule 2 to the 1949 Act and the Byelaws are adhered to’[14]

The words ‘a tent “or otherwise’ are regrettable, since they suggest the possibility of other structures other than tents, in tension with byelaw 6. To say ‘in a tent or the open air’ would have been preferable. Admittedly, the Master of the Rolls did insert the proviso that the byelaws must be followed. However, legal certainty and the coherence of the legal system are better served if judges make every effort to align their language properly with the terms of any relevant legal provisions. This is all the more important in this case, as – given the media interest – many campers may refer to this judgment alone rather than consulting the byelaws. Besides this, the quoted words give effect to objectively construed Parliamentary intention, as well as cohering with the wider regulatory framework governing the Dartmoor Commons. Indeed, given the popularity of wild camping on the Commons and the DNPA’s implicit recognition of the practice in its byelaws, it is reasonable to expect that Parliament might have clarified the meaning of ‘open-air recreation’ had it been dissatisfied with the statute’s operation. 

In contrast, the Darwalls’ claim and the Chancellor’s decision contain flaws. The Darwalls justified their claim partly by arguing that they sought to preserve the landscape from people leaving waste or causing disturbances. This is a legitimate concern, but provisions of law already address such mischief. For example, s.87 of the Environmental Protection Act 1990 already prohibits littering on public-access land, and s.1 of the Dogs (Protection of Livestock) Act 1953 fines walkers whose dogs chase livestock. Better enforcement of these laws is preferable to a blanket denial of the right to camp peacefully and respectfully. Prohibiting camping will also do nothing to prevent the many motorcyclists who ride across the Commons in clear breach of the byelaws. As Underhill LJ indicated, it may be that further restrictions are necessary ‘to address the increased level of problems being reported by landowners’,[15] but these would be for the DNPA and not the court.

It is questionable that the Chancellor accepted picnicking and dog-walking as ‘ancillary to the right to roam’,[16] but did not explain what was materially different in wild camping that meant it was not ‘ancillary’. In fact, in reference to the Darwalls’ aforementioned concern, dog-walking poses a greater risk of disturbance than respectful and orderly wild camping, especially where the landowner keeps, like the Darwalls, livestock. A particular weakness in the reasoning is, as noted by the Master of the Rolls, that the Chancellor speaks of a ‘right to roam’ even though that phrase appears nowhere in the 1985 Act.[17] This weakens the Chancellor’s reasoning on the question of what is 'ancillary'; even if camping is not ancillary to a right to roam, the question which the Chancellor should have asked himself was whether camping was ancillary to the right of access ‘on foot and horseback for the purpose of open-air recreation’. The source of the focus on this phrase is that counsel for the Darwalls invoked Pepper v Hart to cite statements by the 1985 Act’s promoter that it conferred the right ‘to walk and ride’ on the Commons.[18]

It is submitted that this statement was an insufficient basis for concluding that the ‘right to roam’ (a phrase which the promoter himself did not even use) could not possibly include wild camping. Dartmoor has a vast surface area of 954 square kilometres, which makes it unreasonable to suggest that conferring the right to walk across it excludes the right to rest in a tent. In any case, it is improper to substitute, as the Chancellor did repeatedly in his judgment, the words ‘right to roam’ for the statutory wording, purely on the basis of an inference made via Pepper.

A dose of realism

When the Darwalls first brought their case, many people felt outraged. Ogden-Jones notes that, because of the public interest in the case, the DNPA sought to move the case from the Chancery Division into the Administrative Court.[19] The ability to camp on Dartmoor seemed an axiomatic public entitlement. One might reasonably think that – as the adjective ‘national’ suggests – the state owns the fee simple in all our national parks. Indeed, people had been camping on the Dartmoor Commons for decades before the 1985 Act.

However, they did so without a legal right and at risk of liability for trespassing. As the Dartmoor website clarifies, ‘Land within the National Park is not nationally owned, as in many other countries. All land within the National Park is privately owned. On Dartmoor there are a few major landowners such as the Duchy of Cornwall, South West Water and Forestry Commission, but the rest is owned by a myriad of small landowners.’[20] The Chancellor correctly highlighted that before the 1985 Act there was no ‘right to roam’ (or, a fortiori, to wild-camp); the landowner’s permission was always required, with the exception of small sections covered by access orders under the 1949 Act.[21] Across the country, the 1949 Act permits open-air recreation but only in the small sections of national parks where bespoke access orders are in force.[22] Indeed, Ogden-Jones suggests that the Darwalls chose the Chancery Division precisely because, from their perspective, the case involved a simple assertion of their proprietary interest in the land.[23]

The effect of all this is that lawyers must view certain statements in the media with caution. An article by the BBC described the Darwall litigation ‘as a test case for countryside access’.[24] This is an odd turn of phrase, since the litigation concerned the meaning of an Act of Parliament which governed the Dartmoor Commons alone. It remains the case that, everywhere else in the country, campers are trespassing if they do not seek the landowner’s permission (notwithstanding that many landowners are content to allow respectful campers to spend a night on their land without express permission).

I point all this out not to support or dismiss either side of the political debate but to emphasise the legal fragility of the public’s right to enjoy the natural world. Instead of a broad entitlement to enjoy our most beautiful scenery, we have piecemeal rights of access contingent on access orders and bespoke statutes, like the 1985 Act.

The story is not over. The Supreme Court has granted the Darwalls permission to appeal. The Labour Party has pledged to enact a general right of access to national parks which would mirror Scottish law.[25] It may be that the most significant effect of the Darwalls’ decision to sue the DNPA is to kickstart a conversation which brings about a national recalibration of the delicate balance between the private proprietors who have estates in our natural environment, and the members of the public who want to enjoy it.[26]

[1] Darwall v Dartmoor National Park Authority [2023] EWCA Civ 927, [1].

[2] Ibid [68].

[3] Dartmoor Commons Act 1985, s 10(1).

[4] Darwall v Dartmoor National Park Authority [2023] EWHC 35 (Ch), [84].

[5] Ibid [19], [81].

[6] Ibid, [78].

[7] Ibid, [81].

[8] Darwall v Dartmoor National Park Authority [2023] EWCA Civ 927, [47].

[9] Ibid [52].

[10] Ibid [55]–[56].

[11] Ibid [54].

[12] Ibid [66].

[13] Ibid [65].

[14] Ibid [61].

[15] Ibid [72].

[16] Ibid [72].

[17] Darwall v Dartmoor National Park Authority [2023] EWHC 35 (Ch), [78].

[18] Darwall v Dartmoor National Park Authority [2023] EWCA Civ 927, [52].

[19] Darwall v Dartmoor National Park Authority [2023] EWHC 35 (Ch), [35].

[20] Rhiannon Ogden-Jones, ‘Narrative and Story-telling in Darwall & Anor v Dartmoor National Park Authority’, (2023) 35(3) Journal of Environmental Law 437, 441.

[21] Dartmoor National Park, ‘Land Management’ <https://www.dartmoor.gov.uk/living-and-working/access-and-land-management/land-management> accessed 15 January 2024.

[22] Darwall v Dartmoor National Park Authority [2023] EWHC 35 (Ch), [73].

[23] Darwall v Dartmoor National Park Authority [2023] EWCA Civ 927, [49].

[24] Ogden-Jones (n 20), 441.

[25] Claire Marshall, ‘Historic wild camping tradition restricted on Dartmoor’  (BBC News, 13 January 2023) <https://www.bbc.co.uk/news/science-environment-64238116> accessed 15 January 2024.

[26] Helena Horton, ‘Labour would extend right to wild camp to all English national parks’ (The Guardian, 4 August 2023) <https://www.theguardian.com/environment/2023/aug/04/labour-would-extend-right-to-wild-camp-to-all-english-national-parks> accessed 15 January 2024.