Alexander Darwall & Anor v Dartmoor National Park Authority

The court was required to construe the phrase in section 10(1) of the Dartmoor Commons Act 1985 that "the public shall have a right of access to the commons on foot and on horseback for the purpose of open-air recreation". Applying ordinary principles of statutory interpretation and the surrounding statutory context (including the National Parks and Access to the Countryside Act 1949 and the Law of Property Act 1925), the Court of Appeal held that the words are clear and unambiguous and that "open-air recreation" includes wild camping. The right of access is limited to entry on foot or on horseback and is subject to the Act's provisions, Schedule 2 to the 1949 Act (incorporated by section 10(3)) and the Authority's byelaws. The court rejected reliance on Pepper v Hart in the circumstances and rejected the argument that property rights should lead to a different construction in the absence of ambiguity.

This appeal concerned a claim for a declaratory judgment about the scope of the public right created by section 10(1) of the Dartmoor Commons Act 1985. The landowners sought a declaration that the statutory right of access did not include a right to camp or "wild camp" overnight on the Dartmoor Commons. The National Park Authority (the appellant) and the Open Spaces Society (intervener) argued that the natural meaning of "open-air recreation" includes wild camping, subject to any byelaws or restrictions.

Background and procedure:

• The landowners commenced proceedings in the High Court seeking a declaration that section 10(1) did not permit camping; Sir Julian Flaux, Chancellor of the High Court, held that section 10(1) did not confer a right to pitch tents or otherwise make camp overnight (see [2023] EWHC 35 (Ch)).
• The Authority appealed to the Court of Appeal. The appeal raised principally a question of statutory construction of section 10(1).

Issues framed by the court:

1. Whether, on its proper construction, section 10(1) of the Dartmoor Commons Act 1985 confers on the public a right to camp overnight (wild camping) on the Dartmoor Commons.
2. Whether there was a local custom of camping with the force of law (addressed below at first instance but not determinative on appeal).
3. Whether the court should exercise its discretion to withhold declaratory relief (addressed at first instance but not pursued as determinative on appeal).

Reasoning and conclusion:

The Court of Appeal analysed the statutory language objectively, treating external material as secondary. It considered the statutory history (noting differences between the Law of Property Act 1925, Part V of the 1949 Act and the 1985 Act) and the relevant byelaws made under section 90 of the 1949 Act and section 11 of the 1985 Act. The court held that the statutory grant is a composite right: it confers both a right of access and a right to engage in "open-air recreation" (subject to the means of access being on foot or on horseback and to statutory and byelaw restrictions). The majority concluded that sleeping, including sleeping in a tent as part of a walking or other open-air recreational experience, falls within "open-air recreation". The court therefore allowed the appeal, declaring that section 10(1) permits rest and sleep, whether by day or night and whether in a tent or otherwise, subject to the Act, schedule 2 to the 1949 Act and applicable byelaws.

The court rejected the landowners' reliance on Hansard under Pepper v Hart because the statutory language was held to be clear. The court also rejected the argument that the statute should be narrowly construed to avoid interference with property rights where the statutory language is unambiguous.

Appeal allowed. The Court of Appeal held that, on its true construction, section 10(1) of the Dartmoor Commons Act 1985 grants the public a right of access to the Dartmoor Commons on foot and on horseback for the purpose of "open-air recreation", and that "open-air recreation" includes wild camping (including sleeping in a tent), subject to compliance with the Act, Schedule 2 to the National Parks and Access to the Countryside Act 1949 and the Authority's byelaws. The court rejected reliance on parliamentary materials under Pepper v Hart and did not construe the Act narrowly to avoid interference with property rights when the language was clear.

Appeal from the High Court of Justice, Business and Property Courts, Property, Trusts and Probate List, Sir Julian Flaux, Chancellor (High Court judgment: [2023] EWHC 35 (Ch)). The Court of Appeal allowed the Authority's appeal in [2023] EWCA Civ 927.