Camping without consent of landowner on Dartmoor unlawful and is not “settled practice”, High Court rules

The Dartmoor National Park Authority (DNPA) has signed agreements with landowners to allow wild camping on Dartmoor, following a High Court ruling that found visitors do not have the right to camp overnight without the landowner's consent, and that there is no local custom of camping which has the force of law.

In Darwall & Anor v Dartmoor National Park Authority [2023] EWHC 35 (Ch) (13 January 2023), Sir Julian Flaux dismissed arguments from the DNPA that centred around section 10(1) in the Dartmoor Commons Act 1985 which 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 High Court case was brought by two Dartmoor landowners, Alexander Darwall and Diana Darwall, who were concerned about the impact of wild camping on a remote part of the moor that they own and keep their livestock on.

In 2021 the Darwalls responded to a DNPA consultation on byelaws that set out rules for wild camping on Dartmoor, asserting that the right of access granted by section 10(1) of the 1985 Act "does not extend to a right for the public to camp or wild camp".

The DNPA disagreed, leading the Darwalls to commence a claim.

Acting for the claimants, Timothy Morshead KC submitted that the statutory formula in section 10(1) was being used to describe the right to roam rather than a mere right of way.

Tim Morshead KC accepted that the right to roam conferred by the 1985 Act 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, but argued that camping was not such an ancillary right.

He added that it followed that no single member of the public should have any greater right of access than anyone else. He argued that camping is intrinsically incompatible with this since it involves occupation of the land on which the tent stands so that land is unavailable for access by any other member of the public.

On behalf of the DNPA, Timothy Leader submitted that wild camping was an accepted part of Dartmoor and a "necessary incident of the right to roam".

He added that the 1985 Act suggested that access to the park was for a wide range of recreational activities, including camping, provided one went about them in a civilised way.

Leader focused on rock climbing in his submissions, noting that it was an activity which, unlike walking or horse riding, was not ambulatory. However, the judge dismissed this argument as "misconceived".

The judge said: "One can readily see that rock climbing could be categorised as open-air recreation, so that someone who walked onto the Commons in order to engage in rock climbing could be said to be gaining access on foot for the purpose of open-air recreation.

He continued: "However, 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. The wild camping is, as Mr Morshead KC correctly categorised it, a facility to enable the person in question to enjoy the open-air recreation of hiking."

The judge later said: "In my judgment, the meaning of section 10(1) is clear and unambiguous: it confers the right to roam on the Commons, which does not include, whether as a matter of construction or of necessary implication, a right to wild camp without permission. It was never the purpose of the statutory provision to give more than that right to roam."

Sir Julian also rejected the DNPA's contention that wild camping on Dartmoor should be considered "settled practice", concluding that the material before the Court came "nowhere near establishing the settled practice for which DNPA contends".

On the settled practice point, the DNPA placed considerable emphasis on the evidence of an employee of the DNPA, but Tim Morshead KC pointed out that he has only worked for the national park authority since 2007 and was not there in 1985.

The judge noted that: "Whilst [the employee] expresses a firm view that section 10(1) confers a right to wild camp, which is reflected on DNPA's website, DNPA has produced no material, internal or external, to show what the attitude of DNPA was to wild camping from the time the Act was enacted or what it conveyed about wild camping to the public."

Ultimately, the judge found that the claimants were entitled to the declaration they sought that, on its true construction, section 10(1) of the 1985 Act does not confer on the public any right to pitch tents or otherwise make camp overnight on Dartmoor Commons. Any such camping requires the consent of the landowner.

Sir Julian also concluded that there is no local custom of camping which has the force of law despite section 10(1) of the 1985 Act.

The DNPA said it has sought external legal advice and will be considering whether it has grounds to seek permission to appeal.

In the meantime, the DNPA has reached an agreement in principle with some landowners that will grant permission to the authority to allow the public to wild camp through a permissive agreement.

Under the agreement, campers in the areas covered would not have to seek the approval of the landowner as it would already have been granted via the agreement.

The DNPA has agreed to pay the landowners an undisclosed sum as part of the deal. It added that the authority has not budgeted for the payments and plans to write to Defra for financial support.  

Adam Carey