Access and wild camping in Dartmoor National Park

The recent case of Darwall and another v Dartmoor National Park Authority [2023] has confirmed that there is no right to pitch a tent or wild camp on Dartmoor Commons - a case that has generated a fair amount of publicity and comment in the national press. This article gives some background to the issue and a brief outline of some of the reasoning set out in the judgment.

Concerns had been raised about the increasing amount of wild camping that was taking place on parts of Dartmoor, leading to issues around littering, noise and human waste. Many people who support the right to wild camp would say the majority of wild campers behave respectfully. This is surely the case, but it ignores the cumulative impact on fauna and flora, as well as the impact of the ill-behaved minority.

The Dartmoor National Park Authority’s (DNPA) view was that there was an existing right to wild camp either conferred by statute or built up through custom.

The first thing to confirm is that this is a decision that impacts Dartmoor only. Dartmoor was originally dedicated as a national park in 1951. At that time, the legislation did not provide for open access in the way we know it today. There were voices calling for improving access to open land including the eloquent appeal in the Report of the Special Committee on Footpaths and Access to the Countryside of September 1947, mentioned in the judgment, whose proposals for open access aimed to “…enable active people of all ages to wander harmlessly over moor and mountain over heath and down, and along cliffs and shores, and to discover for themselves the wild and lonely places, and the solace and inspiration they can give to men who have been “long in the city pent”.” Even in this Report, however, what was being championed was increasing the right of open access, not a right to camp, whether wild or not.

This informed the National Parks and Access to the Countryside Act 1949, but it was not until the Dartmoor Commons Act 1985 that a specific right of open access to Dartmoor was set out in section 10 of the Act, including: “… the public shall have a right of access to the commons on foot and on horseback for the purpose of open-air recreation.”

While the Countryside and Rights of Way Act 2000 did subsequently set out a right of access to open country and registered common land in England and Wales, this was only to areas to which access was not already available. This is the reason why the judge found himself considering the Dartmoor Commons Act 1985.

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. The courts have particular rules they must follow to determine how to understand legislation, known as ‘statutory interpretation’. The fundamental duty is “to give effect to the will of Parliament as expressed in the statute.” When looking at the meaning of section 10, taking an example of a hiker on a long walk who then camped, the hiking was seen as being the part relating to “open-air recreation” and the wild camping was seen as “a facility to enable the person in question to enjoy the open-air recreation of hiking.” It was felt that to include wild camping within the meaning of open-air recreation would be a distortion of language.

Lawyers argued, on behalf of Dartmoor National Park Authority (“DNPA”) that there had been a custom of camping built up over many years. This position was significantly undermined by a number of pieces of evidence, including the “The Dartmoor Visitor Information for 1982” written by the National Parks Authority (the DNPA’s predecessor), in which it stated: “…all land in the National Park, like land anywhere in Britain, has an owner and his or her permission is required before stopping for the night.”

The Judge refused to accept that such a custom existed, confirming approval of the statement “a custom which requires consent is no custom.”

Further evidence from the Caravan Club Ltd was also analysed, highlighting that at the time the Dartmoor Commons Bill was going through Parliament it recognised the requirement for people wishing to camp on Dartmoor to seek the landowner’s consent.

Also discussed was the contemporaneous statement by Mr Steen MP introducing the Bill for the second reading to the House of Commons: “the Bill aims to give the public a right to walk and ride over the common land. That is clause 10.”

The judgment sets out: “What Mr Steen said was not ambiguous and did not lack clarity. No-one in Parliament can have thought that they were being asked to sanction a right to camp.”

There was evidence that supported the DNPA’s position to a certain extent such as the Camping Section of the ‘Dartmoor and the Law’ document from October 1966 which referred to “permission being deemed to exist for walkers in “open country””. The DNPA also relied heavily on the evidence provided by Dr Bishop, the Chief Executive of DNPA. However the judge placed less weight on this evidence as he had only worked at DNPA since 2007.

While many of the articles appearing in the press on the case refer to a “Dartmoor Wild Camping Ban” or “the loss of the right to wild camp”, this is not strictly correct and misunderstands the role of the court. The decision of the court was clear; based on the evidence presented to it, no right to wild camp had existed prior to the Dartmoor Commons Act 1985 and no such right was found to have been created by it. Nothing was lost or banned, in making the declaration the court was simply stating the position of the law on access in Dartmoor as it has existed since 1985.

Thanks to very swift work from local landowners and DNPA, an agreement has now been reached to allow wild camping in some areas without seeking permission. The Chief Executive of the DNPA, Dr Kevin Bishop said: "We have all worked quickly and collectively to ensure clarity is provided. Our thanks go to those involved in the discussions who have engaged in this process so positively and proactively. The areas available will be highlighted on an interactive map that the DNPA will soon make available.” It has been confirmed there will be no charge to those seeking to wild camp, there may be a payment for the permission from the DNPA to the landowner but this has yet to be agreed. This is a really positive example of the huge opportunity for landowners and the public to work together to improve access, and long may it continue.

The CLA will continue to point out the trade-offs between access and nature recovery, as well as health and safety in farmed landscapes.