Today, 21 May 2025, in Darwall v Dartmoor National Park Authority (DNPA), the Supreme Court held that the public right of access to the Dartmoor commons includes a right to wild camp — that is, to enter the commons on foot or on horseback, carrying camping equipment, and to set up an overnight camp.
It might seem surprising that the Supreme Court has been called upon to determine the scope of the Dartmoor right of access. After all, the right is conferred in a local Act, the Dartmoor Commons Act 1985, and strictly speaking, the judgment applies only to the Dartmoor commons (though that is not quite the whole story, as we shall see). It is not clear why the Supreme Court granted permission for an appeal from the Court of Appeal in an essentially local matter, and after the Court of Appeal had upheld the scope of the right in similar terms. But then it is not clear why the appellants, the Darwalls, pursued the appeal with such determination after losing in the Court of Appeal, when they were unable to produce any meaningful evidence of personal detriment arising from wild camping on the common land which they own.
The judgment of Lord Sales and Lord Stephens records [at 3: this is a reference to para.3 of the judgement] (with whom the other judges agreed), that the Darwalls:
own land at Blachford Manor, an estate on Dartmoor. The estate includes Stall Moor, an area of open land on the Commons, where the appellants keep cattle, lambs and fallow deer.
Those words repeat a mistake made by the Chancellor of the High Court, Sir Julian Flaux, in the judgment at first instance (you can read my blog, Not wild about camping, about that judgment). The Darwalls do not keep their lambs and fallow deer on Stall Moor, or the commons generally, for if they did, the lambs would perish and the deer would migrate across the moors never to be seen again. No doubt they keep such livestock on their enclosed land in the valleys around the farm, but that land does not form part of the commons. The commons are unkempt rough grazing, rising to 500 metres above sea level, exposed to the worst of the prevailing south-westerly winds and rain off the Atlantic, unenclosed so that, without shepherding, management and the inculcated hefting instinct of the native stock, there is nothing to prevent an animal deposited on Stall Moor from ending up in Princetown. The majority of livestock turned out on the commons belong to the commoners, who have rights to graze Stall Moor and the other commons, but the Darwalls appear to have (unusually) either rights of common which they can ‘exercise’ over their own commons, or quasi-rights (which are similar, but not rights of common). Any stock which they turn out will be hardy upland breeds such as the Scotch Blackface, rather than lambs and deer. This was never about the fields and pastures owned and directly managed by the Darwalls, but one might infer otherwise from [3] of the judgement, and perhaps the judges themselves had an incorrect impression of the land in contention. It is a mistake which a court of the nineteenth century would never have made, rights of common being frequently litigated before them.
S.10(1) of the 1985 Act provides that:
Subject to the provisions of this Act and compliance with all rules, regulations or byelaws relating to the commons and for the time being in force, the public shall have a right of access to the commons on foot and on horseback for the purpose of open-air recreation… .
At first instance, the Chancellor found for the Darwalls’ claim that the right conferred by s.10(1) did not include the right to wild camp. The Court of Appeal overturned that finding, in a unanimous judgment. The Supreme Court has upheld the judgment of the Court of Appeal. Why?
Primarily, the court relies on the ordinary meaning of the words used in s.10(1) and its context in the 1985 Act.
The Darwalls had contended that ‘a right of access to the commons on foot and on horseback for the purpose of open-air recreation’ applied only to those who entered onto and remained on the commons on foot or on horseback. They further contended that the intention of the words ‘for the purpose of open-air recreation’ was merely to confine the exercise of the right to those who walked or rode on the commons for recreational purposes (for example, a commoner riding on the commons to check on livestock could not rely on the right of access, although he or she might be able to show that riding was ancillary to the exercise of the right of common).
This never was a good call. In the Court of Appeal, the Darwalls suggested that a walker could not stop to take a nap, for this would mean that the walker would no longer be ‘on foot’ (presumably it would be lawful to fall asleep in the saddle, provided that one either remained in the saddle, or landed on one’s feet). In the Supreme Court, the court instead latches onto the scope for a picnic [17(iii)], and expressly overrules the Chancellor’s odd distinction between rock-climbing (which he found to be part of open-air recreation) and camping (which was not) [17(v)]. The court finds that ‘it would be absurd to construe section 10(1) as not including a right to carry on’ a picnic.
Instead, the court construes the words of s.10(1) to mean that the right of access applies to persons who enter the commons on foot or on horseback, and having done so, those persons are entitled to engage in open-air recreation.
The court notes [17(ii)] that the scope of open-air recreation pursuant to s.10(1) is circumscribed because the 1985 Act applies both the restrictions in Schedule 2 to the National Parks and Access to the Countryside Act 1949, and byelaws made by the DNPA. The restrictions in Schedule 2 extend to a long list, in paragraphs (a) to (o), of effectively prohibited activities, such as lighting fires and leaving rubbish — but not camping. The byelaws (byelaw 6) prohibit camping in the same place for more than two consecutive nights, within 100 metres of a road, or in a prohibited area (comprising many of the most attractive and easily accessible places in the National Park). The court is reassured [26] that the public can easily establish what activities are or are not permitted by virtue of the right to engage in open-air recreation, by reading (if they are keen) the restrictions and byelaws. Whereas the Darwalls effectively adopted the position that what is within or beyond the right of access is essentially uncertain and a matter for litigation through the courts.
Part V of the 1949 Act was intended to promote public access to open country (essentially, unenclosed countryside such as moors and heaths) through access agreements between local authorities and landowners. Where an agreement was put in place, s.60(1) provided immunity from trespass for:
a person who enters upon land comprised in the agreement or order for the purpose of open-air recreation… .
This was 1949, and it seems that the draughtsman did not wish to confer express words granting a right of access, but instead turned it on its head, and instead conferred immunity from legal action for trespass. The 1985 Act adopts a more confident approach, but there is a striking similarity in the words used, if not the actual mechanism. Indeed, the court finds [28] that:
the drafters of section 10(1) had the model of the formula used in section 60(1) directly in mind. It is clear that “the purpose of open-air recreation” referred to in section 60(1) is not qualified by reference to the means by which access to the land is achieved. There is no good reason to suppose that the drafter intended that the same formula should have any different meaning when used in section 10(1).
The 1949 Act was a crucial source of inspiration for s.10 of the 1985 Act, because the latter employs the same building blocks by applying provisions in ss.60, 66, 68 and 78 of, and Schedule 2 to, the 1949 Act, to the right conferred by the 1985 Act (in the same way that they apply to access conferred under 1949 Act agreements).
The court also observes [29–35] that various provisions in the 1985 Act imply that what is conferred by s.10(1) is a wide entitlement to open-air recreation. In s.10(4)(b)(i), there is a power to restrict by notice access to the commons to protect ‘their suitability for…recreation’; there are obligations in s.10(11) and 11(3) to consult with the Central Council of Physical Recreation before restricting access, which suggests a wider breadth to recreation than merely walking or riding; there is a power in s.14 for the DNPA to repair damage arising from open-air recreation, and such power should be read widely so that damage arising from any open-air recreation is covered.
The court refers [36] also to s.193 of the Law of Property Act 1925, which conferred a right of access to Metropolitan commons (i.e. those in the former Metropolitan Police District) and those in urban boroughs and districts (and not merely the former, as stated in the judgment) ‘for air and exercise’, but expressly provides (in para.(c) of the proviso to subs.(1)) that,
such rights of access shall not include any right to draw or drive upon the land a carriage, cart, caravan, truck, or other vehicle, or to camp or light any fire thereon[.]
The court finds that those drafting the 1985 Act would have had this provision in mind, and noted the plain implication that ‘air and exercise’ would have embraced camping — were it not for the express exclusion in para.(c).
The court is dismissive [39–40] of statements in Parliamentary debates on the 1985 Bill recorded in Hansard. The testin Pepper v Hart, which is that such debates can be used to assist in interpretation where a statutory provision is ambiguous, is applied, and not satisfied: there is no ambiguity. Moreover, the court takes the opportunity [41–43] to slap down the suggestion that debates can in any case be used ‘to identify the context of the legislation and its purpose or the mischief which it aims to put right’, regardless of whether there is a an ambiguity.
In response to the Darwalls’ contention that a right to wild camp would infringe their property rights and could not be inferred without clear words, the court points out [44–47] that the 1985 Act also conferred advantages on landowners: a power to make byelaws, to appoint wardens, to restrict access by notice; and to repair damage. And in any case, the words used are sufficiently clear. (It might also have said that it surely is the right of access which is the significant infringement of property rights, and a right to wild camp is then hardly material.)
Finally, the judgment comes with a distinct sting in the tail. In [55–59], the court criticises the Chancellor for having granted a declaration binding the public as to the exclusion of camping from the right conferred by s.10(1). It observes that, as the Darwalls were seeking to restrict the interests of the public, they should have joined the Attorney-General as a defendant (there being no Government department which could act in that role). Only then could a declaration be made binding the public.
In other words, the Darwalls and the DNPA could have, through litigation, resolved the matter between themselves, but the public could not have been bound by any decision of the court. The Chancellor’s order was ineffective in purporting to make a binding determination of the public rights.
The appeal therefore is dismissed.
The Supreme Court is the final arbiter: there can be no further appeal. It is impossible to imagine that there is sufficient substance for the Darwalls to bring an action in the European Court of Human Rights, for the impact on their property rights is marginal. The court has ruled not only that wild camping is part of the right of access to the Dartmoor commons, but that the right is for the purpose of ‘open-air recreation’, and that the expression is to be given a wide meaning, subject only to the constraints imposed by the byelaws and Schedule 2 to the 1949 Act. It is helpful too that the court appears to endorse a similar approach to interpretation of the right conferred by the 1949 Act too, and by s.193 of the 1925 Act. It also seems likely that the same principles apply to interpretation of the important right conferred by Part I of the Countryside and Rights of Way Act 2000 — although there, the restrictions expressly exclude camping.
Not all is clarity. If the right of access for the purposes of open-air recreation is available only to those who enter on the commons on foot or on horseback, what of the cyclist who lawfully navigates one of the bridleways across the commons? Is the cyclist denied the opportunity to stop for a picnic, by putting down the bicycle and sitting on a nearby tor, because the cyclist did not arrive on foot or on horseback? Or is it sufficient that the cyclist begins to walk on dismounting from the cycle?
Similar questions about the motorist who arrives by car to camp on the commons are in practice in any case resolved by the byelaws, which make it an offence to camp within 100 metres of a road or in various popular places near car parks. And in any case, a motorist who parks and then sets out on foot to find a wild camping site (more than 100 metres from the road) will have embarked on foot and avail him or herself of the right conferred by s.10(1). So too the hang-glider, who does not arrive on the commons on foot (nor indeed on horseback): gliding is expressly prohibited under byelaw 17 (even though it is absent from the restrictions in Schedule 2 to the 1949 Act).
But if the cyclist remains in some doubt about the precise nature of the access rights, the walker and horse rider can once again be confident. They can wild camp on the Dartmoor commons, subject only to compliance with the byelaw and the Schedule 2 restrictions.
