Alexander Darwall & Anor v Dartmoor National Park Authority

Section 10(1) of the Dartmoor Commons Act 1985 grants a right of access to the commons on foot or horseback for open-air recreation. It is not confined to a bare right to roam. Open-air recreation includes wild camping and the necessary rest or sleep, whether on the ground or in a tent, by day or night. The right remains subject to the Act, Schedule 2 to the National Parks and Access to the Countryside Act 1949, and applicable byelaws. Clear statutory language is not displaced by property-rights principles, the private-Act promoter principle, or parliamentary materials that do not address the issue.

Private landowners sought a declaration that section 10(1) of the Dartmoor Commons Act 1985 did not confer a public right to camp overnight on the Dartmoor Commons. The Chancellor of the High Court held that the provision conferred a right to roam, but not a right to wild camp, and rejected related arguments based on local custom and judicial discretion: [2023] EWHC 35 (Ch).

The Dartmoor National Park Authority appealed, supported by the Open Spaces Society. The central issue was whether wild camping, including resting or sleeping in a tent, falls within open-air recreation for the purposes of section 10(1).

The appeal was allowed. Sir Geoffrey Vos MR gave the leading judgment. Lord Justice Underhill agreed in substance and Lord Justice Newey agreed with both judgments.

1. Statutory construction. The court adopted the objective approach to statutory interpretation stated in R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2022] UKSC 3 and R (Coughlan) v Minister for the Cabinet Office [2022] UKSC 11. The statutory language must be construed in context. External materials are secondary and cannot displace words that, after consideration of context, are clear and unambiguous and do not produce absurdity.
2. Meaning of section 10(1). The provision grants both a right of access and a positive right to engage in open-air recreation. The words ‘on foot and on horseback’ regulate the means of access. They do not restrict the kinds of recreation that may be undertaken to walking or riding, nor do they reduce the provision to a statutory right merely to roam.
3. Wild camping. Wild camping naturally falls within open-air recreation. Resting and sleeping may be necessary parts of a lengthy walk or may themselves form part of the recreational experience. The use of a sleeping bag, tarpaulin or tent does not prevent the activity from being open-air recreation. The right therefore includes resting or sleeping by day or night, on the ground or in a tent, subject to the statutory restrictions.
4. Restrictions and statutory context. Section 10(3) incorporates the relevant restrictions in Schedule 2 to the National Parks and Access to the Countryside Act 1949, and section 11 preserves the Authority’s byelaw-making powers. Those provisions provide the means of regulating camping and other activities. The statutory provision for formal camping sites in section 12 of the 1949 Act did not define or narrow the separate right of access for open-air recreation.
5. Ancillary arguments. Pepper v Hart [1993] AC 593 did not assist because the parliamentary statement relied on did not address camping. The clear meaning of section 10(1) could not be altered by the infringement of property rights, and the private-Act promoter principle was irrelevant in the absence of ambiguity. Underhill LJ also declined to rely on the 1989 byelaws as contemporanea expositio, although their regulatory structure supported the practical construction of the Act.

The court was prepared to make a declaration that section 10(1) confers the stated rights, subject to written submissions on whether that was appropriate.

• Court of Appeal (Civil Division). In [2023] EWCA Civ 927, the appeal was allowed. Section 10(1) was construed as permitting wild camping, including rest or sleep in a tent, subject to the statutory restrictions and byelaws.
• High Court of Justice, Business and Property Courts, Property Trusts and Probate List. In [2023] EWHC 35 (Ch), the Chancellor held that section 10(1) conferred a right to roam but no right to wild camp without permission.