The law locks up the man or woman
Who steals the goose off the common
But leaves the greater villain loose
Who steals the common from the goose.

Introduction

The Defendant, the Dartmoor National Park Authority (the DNPA) had proposed changes to its byelaws that would explicitly allow the public to wild camp on the Dartmoor Commons. The Claimants, Mr and Mrs Darwall, who were landowners and kept livestock on their estate on the Dartmoor Commons, objected during public consultation.
The Commons, although privately owned, form part of Dartmoor National Park. The public have long had a broadly termed right ‘of access for air and exercise’ under section 193 of the Law of Property Act 1925 to “metropolitan” commons, which included small parts of land around Dartmoor. In 1949, upon the designation of Dartmoor as a National Park, the public were granted a right of access to land subject to access agreement (an agreement between the private landowner and the National Park) ‘for the purpose of open-air recreation’. 40 years later, the Dartmoor Commons Act 1985 endowed the public with ‘a right of access to the commons on foot and on horseback for the purpose of open-air recreation’.

Issue
The source of contention was section 10(1) of the Dartmoor Commons Act which grants the public ‘a right of access to the commons on foot and on horseback for the purpose of open-air recreation’. The issue was whether this right included a right to wild-camp overnight on the Dartmoor Commons. The Right Honourable Sir Julian Flaux KC, Chancellor of the High Court, heard the case in mid-December 2022.

Decision
The primary method of finding the meaning of a statutory provision is to look at the words used by Parliament, and to ask what a reasonable legislature would have intended by using those words. Yet, words can have contested meanings, and so context can be used to resolve ambiguity in the wording of the statute. This is the approach taken by Mr. Justice Flaux.
Looking at the context in which section 10(1) was enacted, he concluded that there was no comprehensive legal right to access the Dartmoor Commons (such as a right to roam) before the Act was passed in 1985 because only 5% of Dartmoor was covered by an access agreement. Therefore, a right to wild camp, being non-existent before the Act, cannot have been in Parliament’s mind when drafting the words ‘right to access on foot… for the purpose of open-air recreation’. He similarly rejected the DNPA’s argument that there was a settled practice of wild-camping at the time of the Act because they failed to establish that camping without consent was customary. In any case, even if people had wild-camped without permission for years, this does not establish a custom of wild-camping because ‘they may have just been wrong’ (paragraph 87) – consent may have always been required.
The High Court then analyses how section 10(1) should be constructed. Can the right to wild-camp be implied into the right to access on foot, in light of the context and purpose of the provision? In this respect, does the meaning of a right of access ‘for the purpose of open-air recreation’ call for an interpretation that includes wild-camping?
In finding that the statute cannot be construed to include a right to wild camp, the judge accepted the Claimants’ argument that the right to ‘open-air recreation’ includes activities for that purpose, but not the facilities that enable that activity. While hiking, dog-walking, and even rock-climbing were accepted by the court as ‘open-air recreation’ and could be implied into the right of access as “ancillary” rights to the right of access, camping necessarily involves a tent and therefore, in the Court’s view, is not itself open-air recreation, but rather a facility to enjoy the hiking. As Sir Flaux says at paragraph 80, “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”.
Sir Flaux concluded that the ‘meaning of section 10(1) is clear and unambiguous: it confers the right to roam on the Commons, which does not include… a right to wild camp without permission’.

Analysis
The decision was controversial to say the least. Its immediate effect is to clarify that the right to wild-camp in Dartmoor National Park without landowner permission is extinguished.
Several aspects of the judgment can be criticised. First, to say that camping is a ‘facility’ through which hiking is enjoyed as the true activity of open-air recreation seems an arbitrary distinction. The beauty in wild-camping is as much setting up camp to watch the stars, as it is hiking during the day. Camping is often not merely a facility. Furthermore, the purpose of the separate treatment of facilities for the enjoyment of open-air recreation is to prevent the crowding of natural space. Sir Flaux accepted the distinction because it mirrors the one set out in section 1(b) of the 1949 Act. Yet, while it makes sense to treat fixed campsites and campervans as facilities to exclude, it is less persuasive for the temporary tents of wild-campers who leave only footprints to be put in the same category.
Second, it is a shame that the DCA did not argue in detail that camping was an implied right derived from the right to roam (rather than the right of access for the purpose of open-air recreation). The right to wild camp seems a natural extension of a right to roam in National Parks like Dartmoor, which are in parts so remote that bringing a tent is often necessary for walking across the Commons.

Labour’s response
The judgment occupied headlines for several days. Thousands have since walked across Dartmoor in protest.
Dartmoor National Park has recently disclosed to the Guardian that they will pay landowners such as the Darwalls for access to their land for camping. This solution is not ideal. Paying for access to National Park spaces goes against the ethos of National Parks – which were created under the National Parks and Access to the Countryside Act 1949 for ‘promoting opportunities for the understanding and enjoyment of the special qualities of those areas by the public”. Second, rights derived from contract are at the mercy of the existence of that contract. A landowner could simply decide to not renew the contract, for the right to wild camp to once again be extinguished. Third, access will be fragmented, and will only cover the parts of the National Park where agreement has been reached with the landowner. To secure a comprehensive right to roam that includes wild camping, Labour must maintain its commitment to enshrine access to nature in legislation.
Labour’s Shadow Environment Minister Alex Sobel has said that Labour will expand the right to roam in legislation. This should include explicit reference to wild-camping. Caroline Lucas, Green MP for Brighton Pavilion, has introduced a Private Member’s Bill, currently at Second Reading, to amend to Countryside and Rights of Way Act 2000 to endow the public with far greater rights of access to nature, including wild-camping. Anthony Mangnall, the Tory MP for Totnes, which neighbours the Dartmoor Commons, has given his support for an amendment to the Dartmoor Commons Act to allow wild-camping.
Enshrining the right to wild camp in legislation evidently has cross-party support. It must be part of Labour’s plan for government.

Jesse is a member of the Young Fabians Law Network and a graduate in English Law and French Law. He is interested in corporate governance and the environment. He tweets as @Dostoeevsky5.

Image by Lucy Prior from Pixabay.