Court of Appeal allows national park authority appeal over wild camping on Dartmoor

The Court of Appeal has allowed an appeal brought by Dartmoor National Park Authority (DNPA) of the High Court's decision to find that the authority's byelaws did not make wild camping unlawful.

In Darwall v Dartmoor National Park Authority [2023] EWCA Civ 927, the Master of the Rolls, Sir Geoffrey Vos, found that wild camping was among the "open-air recreation" activities that the byelaw allows.

The legal challenge was first brought in 2021 by the Darwal family, who own an estate in the national park.

At the High Court, Sir Julian Flaux dismissed arguments from the DNPA that centred around section 10(1) of the Dartmoor Commons Act 1985, which provides 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 judge ruled that: "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."

But at the Court of Appeal, the Master of the Rolls concluded that section 10(1) of the 1985 Act 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 [National Parks and Access to the Countryside Act 1949] and the Byelaws are adhered to".

Much of the discussion centred around whether the term "open-air recreation" should include wild camping.

In coming to his decision, he considered whether a walker who lies down for a rest without pitching a tent would be present for the purpose of open-air recreation. "It seems to me obvious that they would", Sir Geoffrey said.

"The resting is obviously a necessary part of the recreation."

The judge then considered whether it makes any difference if the walker falls asleep while resting, finding that: "A walker resting by sleeping is merely undertaking an essential part of the recreation of a lengthy walk."

He added that it would be the same if the walker rests or sleeps on a plastic sheet to prevent the damp, or in a sleeping bag to protect from the cold, or under a tarpaulin or in an open tent or in a closed tent to protect from the rain.

"The fact that a tent is closed rather than open cannot convert the wild camping from being an open-air recreation into not being one", he stated.

He said that the walker is still resting by sleeping and undertaking an essential part of the recreation, concluding that wild camping plainly fell within the definition of open-air recreation.

Lord Justice Underhill and Lord Justice Newey agreed.

Pamela Woods, Chair of Dartmoor National Park Authority, said: "We firmly believed the legislation which formed the focus of this case – the Dartmoor Commons Act – allowed for backpack camping on certain areas of common land as a form of open-air recreation without the need to get landowners permission first."

Adam Carey