The recent claim brought by Alexander Darwall against the Dartmoor National Park Authority has been watched with interest by locals, landowners, hikers and everyone with an interest in Dartmoor.
It took place in the context of an intense debate about public access to wild places, the need for conservation and particularly the growing divide in resources and rights between the general population and the ultra-rich. In that context, the actual legal arguments can seem almost a side issue, but of course, cases are determined by courts on the letter of the law, and it is important to examine what was actually legally at issue in this case.
Who is Alexander Darwall?
Darwall is a hedge-fund manager who is owner of the 4,000 acre Blachford Estate on southern Dartmoor. He offers pheasant shoots, deerstalking and holiday rentals on his estate, and he argued that his rights were being infringed by public camping taking place without his permission and that the automatic right to camp was encouraging irresponsible camping and damaging the commons.
What's the problem with wild camping?
It is of course the case that during the covid lockdown, camping on Dartmoor became much more popular, as a great many people who had no real tradition of hiking or wild camping descended on areas that were relatively close to car parks, and often left large amounts of rubbish and abandoned tents. The Park Authority, however, who were in the main responsible for dealing with these issues, argued that any such problems could be controlled by other byelaws, and that a few bad examples (very clearly related to an extraordinary period of time) was not a reason for overturning what has been a right exercised for nearly 30 years under the Dartmoor Commons Act and, many would argue, for generations before that.
On the matter of the damage to the commons caused by camping, it is ironic that Darwall has himself been warned by Natural England for releasing destructive pheasants close to a National Nature Reserve, Dengles Wood, in direct opposition to the conservation plan for the fragment of temperate rainforest on the edge of southern Dartmoor.
Why did the judge make this decision?
Darwall's case rested on the interpretation of a very small phrase in the Dartmoor Commons Act 1985, which stated that the public had a 'right of access to the commons on foot and on horseback for the purposes of open-air recreation'. The judge was in effect asked to declare that this did not give the public a right to camp, and that camping was ancillary to, rather than being in itself, 'open-air recreation'.
To help decide the issue, the judge turned to the National Park and Countryside Act 1949, where the phrase 'open-air recreation' was also found, but in which camping was referred to not as such but as part of the 'facilities' for the enjoyment of open-air recreation. He also decided that there was no 'necessary implication' that open-air recreation required camping. Stopping, sitting down, and picnicking were all likely to be implied by the notion of 'open-air recreation' but the activity of hiking did not necessarily require wild camping.
Of course, the many teenagers and adults who take part on the Ten Tors challenge may well beg to differ, as the hikes they are engaged on necessarily involve overnight camping, and it is the case that many of the most remote areas of Dartmoor are not accessible if the walker has to get there and back in a single day.
It is such arguments, regarding the precise meaning of 'open-air recreation', that are likely to be crucial in attempting to overturn the ruling. For many, however, the issue is more emotional: a well-established 'right' to access wild places, used by thousands of ordinary people, has been overturned by someone who simply wants to protect their exclusive pheasant-shooting business.
What might happen next?
The Park Authority has decided to take the decision to appeal, but there are of course significant legal costs involved in taking such a step. Temporarily, they have been negotiating a limited right to camp in certain areas in exchange for payment, something that has generally provoked outrage among the walkers and hikers who see this as an automatic right. It will be interesting to see how the Appeal Court decides the issue of what constitutes 'open air recreation'. However, it may be that ultimately the legal process will be overtaken by the growing political pressure to establish wider rights to roam and the right to wild camp by legislation, rather than judicial interpretation.
Trowers & Hamlins have a dedicated Agriculture and Rural Estates team, led from our Exeter office, with decades of experience in handling all manner of legal issues in our rural regions. From the sale of estates and farms, through to the contentious disputes that can occur between landowners, our solicitors are ready to help you. Please get in touch if you'd like to know more.
