Much has been made of the recent case of Darwall v Dartmoor National Park Authority EWHC 35 (Ch), which was decided in January, but what did it actually find?

The area in question, Dartmoor Commons, is unenclosed, privately owned moorland over which locals have the right to put livestock, forming roughly 37% of Dartmoor National Park.  The Darwalls own part of the Dartmoor Commons, and keep animals there.  DNPA is the National Park Authority for Dartmoor, and produced byelaws in 1989 which are still in force.  Byelaw 6 regulates camping.  DNPA’s power to make byelaws derives from the Dartmoor Commons Act 1985.

In 2021 DNPA was proposing to amend the byelaws, and consulted the public on its proposals.  The Darwalls response to the consultation was to claim that the right of access granted by s10(1) of the Dartmoor Commons Act 1985 -

“does not extend to a right for the public to camp or wild camp”.

s10(1) of the Dartmoor Commons Act 1985 says -

“…the public shall have a right of access to the common on foot and on horseback for the purpose of open-air recreation”.

DNPA disagreed with the Darwalls, and the issue ended up in court.

The court had to decide whether the Darwalls were right in their interpretation of s10(1).  Arguments were made by both sides as to the correct way to interpret statutory provisions.

The court found that prior to s10(1) being enacted, there was no legal right to roam on Dartmoor itself, let alone wild camp on the Dartmoor Commons.  (A 1925 law which was thought to grant this right in fact only applies to metropolitan commons (essentially commons near towns).  Only two areas of the Dartmoor Commons are metropolitan commons, and camping is statutorily prohibited there.)  It followed that pre-1985, if there was no legal right to roam the Commons, there could be no right to camp there without the landowner’s permission.  In this context, did s10(1), when it came into force, somehow imply a right to wild camp without permission?

The judge thought not, stating that s10(1) is “clear and unambiguous”, and that a prospective camper could either obtain the landowner’s permission or “take their chances … without the landowner knowing, whilst being prepared to move on if asked to do so”.  DNPA’s byelaws were found not to deal with wild camping, its legality or otherwise, and could not grant a right to wild camp without landowner’s permission anyway, as this was not contained in s10(1).

As to the argument that the right to wild camp was customary before 1985, and should continue to be permitted, it was held that any custom which “requires consent is no custom”.  Had wild camping without permission become customary or settled practice since 1985?  Again the judge thought not, sticking with his view that s10(1) was clear, prevented wild camping on the Dartmoor Commons without permission, and that any camper thinking otherwise “may just have been wrong”.