Alexander Darwall & Anor v Dartmoor National Park Authority

A statutory right of access on foot and horseback for open-air recreation does not ordinarily include a right to camp overnight. Camping may be a facility enabling recreation rather than recreation itself. A right to camp will not be implied unless it necessarily follows from the express statutory right. Byelaws regulating camping do not themselves create an otherwise absent right to camp, and the omission of camping from a statutory list of restrictions is inconclusive. A claimed settled practice cannot displace clear statutory language, and in any event requires compelling evidence. Where the parties have a genuine private-law dispute about statutory construction, declaratory relief may be appropriate.

The claimants, landowners and commoners on Dartmoor, sought a declaration that section 10(1) of the Dartmoor Commons Act 1985 did not confer a public right to pitch tents or camp overnight on the Commons without the landowner’s consent. The National Park Authority contended that wild camping was part of open-air recreation, an ancillary incident of the statutory right of access, or supported by settled practice or local custom.

The court determined whether section 10(1) authorised wild camping, whether a local custom had the force of law, and whether declaratory relief should be withheld.

1. Construction of section 10(1). The provision conferred a right to roam on the Commons on foot or horseback for open-air recreation. It did not confer a right to pitch tents or camp overnight without the landowner’s consent. The statutory language was clear and unambiguous.
2. Camping was properly characterised as a facility enabling a person to enjoy recreation such as hiking, rather than as the open-air recreation itself. The distinction reflected the structure of the National Parks and Access to the Countryside Act 1949, including its treatment of camping sites as facilities.
3. The proposed implied right failed the test of necessary implication. A walker could seek the landowner’s permission, use a licensed campsite, or camp without permission while accepting the risk of being required to leave. A right to camp therefore did not necessarily follow from the express right to roam.
4. The byelaws made under section 11 of the 1985 Act and section 90 of the 1949 Act did not create a right to wild camp. The incorporation of Schedule 2 to the 1949 Act, and its omission of camping from the restrictions, did not alter that conclusion.
5. There was no local custom of camping with the force of law. The evidence overwhelmingly showed that landowner consent had been required before the 1985 Act. The evidence also fell far short of establishing a settled post-enactment practice capable of affecting statutory construction.
6. The court considered that, if necessary, the principle against uncompensated interference with property rights would support the same interpretation. The claimants were entitled to declaratory relief because this was a private-law dispute and a declaration would provide an effective and practical resolution.

Declaration granted: section 10(1) did not confer any public right to pitch tents or otherwise make camp overnight on Dartmoor Commons. Any such camping required the landowner’s consent.