Last week the High Court ruling about wild camping on Dartmoor sent shockwaves through England and Wales. Although there have been many opinion pieces and emotive headlines, I’d like to put all that aside a minute and try to clearly explain what has actually happened. There is a lot of talk about “banning”, Right to Roam declaring that they’re “going to war” and a lot of confusion about how one small landowner can put a stop to all camping on the moors… Let’s put our emotions aside for a minute (and believe me, I have some) and talk about the events that led up to this, what’s actually happened and what it all means.
For context, I live on Dartmoor and have spent 20 years of my life walking its hills and sleeping in its ditches. This is my home. I grew up here, on a healthy diet of four Ten Tors events and all three D of E awards. Today, I’m involved with several outdoor-related organisations locally, but let’s make it clear that all that follows are my words and mine alone. Nothing I write here has any bearing on the opinions of these groups. I was also at one time (2018) an ambassador for Dartmoor National Park, promoting responsible wild camping, while trying to do All the Tors in Ten Tors style. Again, what I say here has nothing to do with the National Park’s opinions. I just feel moved to write this as a freelance journalist who likes getting to the bottom of things.
Right, now that we’ve got that out of the way, let’s begin.
What has happened
Back in September 2021, Dartmoor National Park set about review the byelaws – a set of Dartmoor specific laws that include rules on things like lighting fires, parking, vehicle access, livestock, projectiles etc. There is also a clause on wild camping. The main purpose of the review was to update some poor wording for clarity and bring it in line with current practices. You can see the proposed changes that I discussed here: What’s Really Happening: Dartmoor Wild Camping Rules and Other Byelaw Changes.
To make this review, Dartmoor National Park (DNPA) put out their proposed changes to public consultation allowing us all to give feedback. Lots of people did. The results are here and although it’s quite a huge document to wade through, it’s lovely to see public feedback was listened to. However, the most noticeably missing section from the post-feedback review are the wild camping clauses. That is because during the public consultation, one of the Dartmoor landowners sued the National Park.
The disputed claim was whether the 1985 Dartmoor Commons Act (aka the byelaws) extended the right for the public to camp on Commons land. DNPA maintained that it did and the landowner claimed that it didn’t. So the wild camping byelaws could not be reviewed and the two parties went to court.
Who is the Landowner?
The landowner in question was Alexander Darwall (and his wife, Diana) who own the Blachford Estate. They have “owned and lived at Blachford Manor, an estate on Dartmoor, since 2013” according to court proceedings. I have read that he spent at least some time growing up in the Devon/Dartmoor area, but since all searches have now been flooded with new articles I can no longer find the reference. The Blachford Estate is some 4000 acres and includes some Open Access Land (which is, in this case, also Commons Land). This is actually quite a small area compared to the size of Darmoor.
In the image below, I have highlighted in orange the land we are talking about, over the current Dartmoor camping map. It was created using this map of Dartmoor landowners.
For those who know the area or have an OS map handy, this is the area that covers Stall Moor, bounded by the River Erme to the east and the River Yealm to the west and as far north as Erme Head. For avoidance of doubt, this is not the same landowner who owns Harford Moor and shut both the moor gate and the carpark during 2020.
On Friday 13th, they went to court…
What the judgement actually says
The hearing took place on Friday 13th at the High Court in London. If you’d like to see exactly what happened, here is the link to the court report that shows the full proceedings. It is quite dense reading but is unequivocally the facts of what happened. Still, let’s pull out some important parts. Here’s what they are debating:
“The principal issue in this case is whether section 10(1) of the Dartmoor Commons Act 1985 (“the 1985 Act”) confers on the public a right not only to walk or ride a horse on the commons but also to camp there overnight.”
The Final Judgement
“On its true construction, section 10(1) of the 1985 Act does not confer on the public any right to pitch tents or otherwise make camp overnight on Dartmoor Commons. Any such camping requires the consent of the landowner.
So far as the second issue is concerned, there is no local custom of camping which has the force of law despite section 10(1) of the 1985 Act.”
What Happened in Court?
Okay, this may get a bit dense too, but I’m going to try to pull out enough of the report (again, linked above) to help explain how this hearing went. Let’s start with the rough argument. The judge said:
“On the pleadings and skeleton arguments, the following issues arise for determination by the Court:
(1) On its true construction, does section 10(1) of the 1985 Act grant the public a right to camp overnight on the Commons?
(2) Is there nonetheless a local custom of camping on the Commons which has the force of law despite section 10(1) of the 1985 Act?
(3) If the answer to (1) and (2) is no, should the court nevertheless decline to exercise its discretion to grant declaratory relief in the terms sought?
In the event, Mr Timothy Leader on behalf of DNPA did not pursue in his oral submissions his case of custom, but I will deal with it briefly. He also did not pursue the third issue as to discretion with any great vigour orally, but I will deal with it nonetheless.”
I’m not a lawyer, I’m just some dude on the internet, but that sounds very much to me like the DNPA lawyer only made a case for part 1 – aka whether the byelaw was right or not. A “skeleton argument”, it transpires, is a legal term for a sort of outline of what your arguments will be – not that it was poorly argued.
The First Argument
The arguments go roughly like this, but please do read it in full for yourself as I can only summarise:
For part 1, there is debate about the wording of the byelaw and what it means (also referencing that other national parks such as the Malverns use the same wording of “for the purpose of open-air recreation” used in a previous Dartmoor act but also explicitly excludes camping). It is argued that right to roam does not include right to sleep. The fact that nowhere else in England and Wales has a right to camping is lent on strongly (CRoW Law etc).
For part 2, many instances are pulled out of previous visitor brochures, pamphlets and guides which refer to politely moving on if you are asked by the landowner and that there is no legal right without the landowner’s consent. The Visitor Information brochure in 1982 read,“…all land in the National Park, like land anywhere in Britain, has an owner and his or her permission is required before stopping for the night. This is nothing more than common sense and courtesy on enclosed land, but you may not realise that it also applies on the open moor. However, if it is solitude and wide open spaces that you want, landowners do not in practice normally raise objection to a single tent pitched on unenclosed land for a night out of sight of houses and roads. But if you are asked to move on, you will have to do so.” The argument being that is proof there was no local custom of camping recently as 1982.
There was also talk of how camping has caused damage to the land. “Mr Leader submitted that the mischief at which section 10(1) was directed was de facto access to the Commons without lawful authority for a wide spectrum of recreational uses, which created pressure and harm and which could not be controlled. There was a chaos of eight million visitors with untrammelled access making a mess, including camping. He submitted that the purpose of the 1985 Act was to extinguish landowners’ objections to access and therefore the need for permission.”
The Counter Argument
On the counter claim is was argued mostly that the byelaw should stand and that, given it had stood since 1985 as an understanding that camping was legal without permission, it should continue to do so. But there doesn’t seem to have been anywhere near equal the weight of evidence that the Darwalls’ lawyer provided. It was also raised:
- That singling out camping in particular was nonsensical/arbitrary. “If it was accepted, as it was by the claimants, that the right to roam included sedentary things such as having a picnic, he asked what the problem was with wild camping, whether the problem was just the erection of a tent.” Activities like group rock climbing was also highlighted, which would also involve taking up one space for long periods of time.
- That “many people whose rights were being affected were not before the Court” and this was rebutted by the idea that this case was a Private Law dispute not a Public Law dispute.
Here are the main points of the discussion at the end of the hearing. I believe this is the judge speaking. The numbering is mine.
1. “The evidence did not establish that everyone had thought that wild camping was permitted by the 1985 Act without the landowners’ consent. The evidence was consistent with everything having continued as before. Nobody was behaving as if the Act had changed public rights in relation to camping.” And highlighted that they Darwalls aren’t saying no one should camp but that people should only camp where landowners permit it.
2. “DNPA had placed considerable reliance on the evidence of Dr Bishop, but he had only been with DNPA since 2007.” aka not before the 1985 Commons Act.
3. That camping in itself is not open air recreation but a facility for its enjoyment aka a means of enjoying open air recreation, not one itself. “However, it seems to me to be a distortion of language to say of someone who has gone on a long hike on Dartmoor, taking more than a day and who pitches a tent to sleep for the night, that they have gained access for the purpose of wild camping. The open-air recreation in which they are engaging is the hiking not the wild camping.” (I wonder if this could be argued as not true nowadays.)
4. “I share the serious reservations of Lord Neuberger and Baroness Hale in ZH about the “customary meaning” or “settled practice” principle. It seems to me inappropriate to decide that a statute has a different meaning from the one which the Court considers it has, merely because people have conducted themselves for years on the basis that it had a different meaning, particularly since they may just have been wrong. However, it is not necessary to decide whether there is such a principle, since the material before the Court comes nowhere near establishing the settled practice for which DNPA contends.”
5. Also that Ten Tors doesn’t help the case for camping: “The Ten Tors Challenge and similar organised walks for young people of which Lieutenant Colonel Clark speaks in his witness statement, which involve wild camping, are well-publicised organised events which are completely different from the case of the casual backpacker walking across the Moor or the Commons. The fact that wild camping is an integral part of those organised events tells one nothing about whether the casual backpacker who wishes to wild camp requires permission from the landowner to do so.”
6. And that there is no suggestion that there are many unrepresented people: “There is also nothing to the suggestion that the rights of many people who are not before the Court are being affected or that the claim is somehow inimical to good administration. DNPA has been an effective representative body to put forward the case for a right to wild camp. Other interested organisations, both national and local (including the Ramblers Association), have evidently assisted DNPA in presenting its case and provided witness statements, so that there has been full argument of the issues.”
Which all leads to the judgement that given the evidence presented, the byelaws don’t confer a public right to camp.
What this Means
Some people have been saying, “Well this is fine, it only concerns his land so the rest of the moor is still fine.” I hope you can see now that this is not the case. The court has ruled that camping is only allowed with the landowners’ permission.
That said, camping is not banned on the moor. We are simply in the same place now as the rest of England and Wales. If you want to camp strictly legally, you need explicit permission from the landowner. DNPA are in the process of contacting all their landowners to see what their intentions are: whether they’re happy to continue as it has been for the past 37 years or want to retract their permission. Or, I guess, do something else.
In the meantime, they are not actually able to share the contact details of the landowners for privacy reasons so it’s up to the individual to find out and get in touch or, as was mentioned a few times in the court proceedings “take their chances on pitching a tent without the landowner knowing, whilst being prepared to move on if asked to do so”.
What about Ten Tors?
Ten Tors was explicitly mentioned in the hearing as a special event separate from ‘normal’ rules. I have heard that Ten Tors has told training teams not to do any camping at the moment – although if that continues it will be hard to safely prepare young people for their event. The MOD does own a small amount of land on the moor, so perhaps camping there would be fine if the Army checked. However, it does seem quite possible that permission could be obtained from the main landowners (Dutchy of Cornwall, Forestry Commission, South West Water and Maristow…) since Ten Tors no longer goes south of Peat Cott.
What can/should we do?
Going through the whole thing has left me quite disheartened – and maybe you too. If we are going to do something, here are a few things we might consider:
1. Let’s not do anything that will jeopardise any appeal against the ruling. Like providing evidence of wild campers being a nuisance.
2. Let’s think just a little bit before launching enormous protests. Like if you want the headlines to be anything other than ‘Angry Wild Campers Cause Parking Chaos’ maybe think whether 250 people can park in a tiny village before a walk. Please consider public transport links and working with local people. You are also supposed to inform the National Park about any event with more than 50 people. Let’s try to be considerate of everyone and not alienate anyone who would otherwise be on the same side.
3. Consider how we could contribute to proof of a historic right to wild camping on Dartmoor. Because that seems to be where the argument fell. Or even go one higher and appeal to landowners and people who make our access laws.
A Proposal for wild camping in England
Materially, this ruling might not change much – dare I say it (touching all the wood)! If a landowner came at you while you were camping, even if you had a legal right to be there, you would probably move on anyway, simply in order to get some sleep. Or at least I would. But I have spent hundreds of nights on the moors during my life and this has never happened to me yet. Why? Because I pitch my tent at or after sunset and take my tent down by dawn. All that is left is a light depression in the grass.
It seems outrageous to me that we can’t find a way to make this simple and low impact practice legal throughout the UK and that it is the cause of so much contention. It does not seem hard to lay out a few simple rules that 99% of campers would agree with – as has already been done in much of Europe and even Scotland. There are so many successful examples we can use. Why is this still beyond us? Maybe this ruling on Dartmoor will be the wake up call that causes change for the better.
Thanks for reading and I hope that this helps explain a bit clearer what has happened here on Dartmoor. Let’s hope this ruling is not the end of the story.