Cases involving common land are not common but this is the second case that has decided recently. Darwall & Anor v Dartmoor National Park Authority [2023] EWHC 35 confirms that wild camping is not within the definition of “open-air recreation.” The decision defends the proprietary rights of commoners facing increased demands on their land for recreational purposes: more so than ever in post-lockdown Britain.
Facts
The claimants owned and occupied a parcel of land within Dartmoor Common, an area of Dartmoor National Park. Included within their estate was the land known as Stall Moor, an area used for the housing of livestock and in which the claimants noted, with growing concern, an increase in the level of wild camping.
Dartmoor National Park was designated in 1951, and has since been controlled by the Dartmoor National Park Authority (“DNPA”) (the defendants in the case). The land is also subject to regulation by the Dartmoor Commons Act 1985 (the “1985 Act”) and byelaws made under the National Parks and Access to the Countryside Act 1949 (the “1949 Act”).
In autumn 2021 DNPA proposed an amendment to its byelaws to give explicit permission for visitors to camp with a tent on the moors. The claimants challenged this proposal on the basis that camping/occupation was prohibited by the 1985 Act and therefore could not be permitted by a DNPA byelaw. Section 10(1) of the 1985 Act which was considered by the Court reads as follows:
“Subject to the provisions of this Act and compliance with all rules, regulations or byelaws…. 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…. shall not be treated as a trespasser on the commons or incur any other liability…..”
Decision
The DNPA argued that wild camping fell within a wide definition of “open-air recreation”, relying on comparisons such as rock climbing and cycling which had been noted in previous guidance as examples of “recreational activities.” The Court was quick to dismiss this point, providing the analogy that, whilst rock climbing was a recreational activity within itself, camping overnight in order to complete a two day hike would be a necessity to facilitate the recreational activity of hiking. Consequently camping was not in itself an act of recreation.
The Court instead preferred the interpretation, of the claimants, that the language of section 10(1) was unambiguous: conferring only a right to roam and nothing further. The Court considered that the section clearly set out Parliament’s original intentions and it was not open to the Court to provide a different interpretation simply because a practice of wild camping maybe have been established.
A further key aspect of the judgement involved the discussion on commoners’ proprietary rights. These rights, the Court held, would be subject to unreasonable interference should visitors be permitted to occupy their land (albeit for short periods of time) without the need for prior consent.
What now?
Whilst this case relates specifically to Dartmoor section 10(1) of the 1985 Act largely replicates section 60 of the 1949 Act which applies to all designated National Parks. Consequently the Court’s interpretation in this case is likely to be applied in a wider context, preventing visitors from wild camping on land in National Parks throughout the UK.
This update was written by Cathryn Tracey. Should you have any queries relating to common land, please do not hesitate to contact Julian Boswell or Cathryn.