Dartmoor ‘wild camping’ Appeal Intervention

The Supreme Court has handed down judgment on the extent of the public’s right to access in Dartmoor, including whether there is a right to ‘wild camp’. In a unanimous judgment, the Supreme Court has held that the public’s rights do extend to wild camping. The Court therefore dismissed the appeal by Mr & Mrs Darwall.

We acted for the Open Spaces Society which was granted permission to intervene in the Supreme Court (and, previously, in the Court of Appeal) in support of the Dartmoor National Park Authority’s argument that wild camping is part of a broad right of open-air recreation granted to the public. The Court of Appeal, and now the Supreme Court, have conclusively confirmed this.

The Court held that the words of section 10(1) of the Dartmoor Commons Act 1985 (“the 1985 Act”) are clear and unambiguous and that the right of the public to engage in ‘open air recreation’ on the Dartmoor commons extends to a range of activities including, picnicking, rock climbing and camping. The Court adopted a number of the points made by OSS about the statutory context and the way in which legislation has been repeatedly drafted to grant broad rights, with limited exclusions enumerated in specific cases.

The Issue before the Court

The principal issue in this case was 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 (as the Appellants asserted) but also to camp there overnight (having arrived there on foot or horseback). Section 10(1) of the 1985 Act states:

‘subject to the provisions of this Act and compliance with all rules, regulations and byelaws relating to 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…’.

The provision then goes on to give those members of the public on the commons for that purpose an immunity from civil liability (provided they are in compliance with all notices and byelaws, etc):

‘ . . .and a person who enters on the commons for that purpose without breaking or damaging any wall, fence, hedge, gate or other thing, or who is on the commons for that purpose having so entered, shall not be treated as a trespasser on the commons or incur any other liability by reason only of so entering or being on the commons.”

For decades this was interpreted as giving the public a right to ‘wild camp’ (also referred to as ‘backpack-camping’). However, the landowners of Stall Moor common, an extensive area of open land in a remote section of the Commons, challenged this interpretation. In the High Court, the Judge, Sir Julian Flaux, declared that section 10(1) of the 1985 Act did not confer on the public any right to pitch tents or otherwise make camp overnight on Dartmoor Commons and that such camping required the landowner’s consent. The judgment construed the right of public access narrowly, finding it was equivalent to a ‘right to roam’ but that other activities were essentially prohibited unless ‘ancillary’ to roaming.

Given the wider public importance of the Appeal, the Open Spaces Society, Britain’s oldest conservation charity, instructed Richard Buxton Solicitors to seek permission to intervene in the Court of Appeal. Permission was granted in May 2023 with no costs risk to the Society.

The Court of Appeal accepted the arguments of the Dartmoor National Park Authority and the Open Spaces Society that the High Court reading was too narrow, holding that “Parliament’s intention was to confer a general right to engage in open-air recreation on the commons” subject only to specific restrictions.  In relation to wild camping, specifically, the Court of Appeal held that the Act gives “members of the public the right to rest or sleep on the Dartmoor Commons, whether by day or night and whether in a tent or otherwise.”

The Supreme Court agreed in January 2024 to hear the appeal and later granted the Open Spaces Society’s application for intervention in this appeal.  The hearing was held on 8 October 2024. In the written judgment handed down on 21 May 2025 Lord Sales & Lord Stephens (with whom Lord Reed, Lady Rose and Lady Simler agreed), delved in some depth into the procedural requirements for when Courts can use extrinsic aids to statutory interpretation.  However, ultimately they found clarity in the wording within the Act itself.  In summary, they held:

• ’In our view, as a matter of ordinary language, camping is a form of “open-air recreation”. Therefore, the provision confers a right for members of the public to have a right of access to the Commons, provided that it is exercised by going onto the Commons on foot or on horseback, for the purpose of camping there’.
• The legislation was drafted such that it would be clear to members of the public “who want to be able to check on what they can and cannot do on the Commons”. The statute requires compliance with any byelaws or regulations and this is the primary method of regulating open-air recreation on the commons.  Such rules can be consulted to understand what is allowed and it is “implicit that it is not appropriate for landowners to enforce additional restrictions via the law of trespass.”
• The court was clear that the term ‘“on foot and on horseback” in section 10(1) describe the means by which the public are to have a right to gain access to the commons. The judgment is critical of the submission of the Appellants that ‘the open-air recreation in question can only be in forms which are pursued by proceeding on foot or on horseback so that, for example, one would have no right to stop to have a picnic’ as ‘absurd’ and one that Parliament cannot have intended.

Although the Court found the clarity within the statutory wording, the judgment goes on to consider (and finds reinforcement in the Court’s view) from the wording of the National Parks and Access to the Countryside Act 1949 (paras. 18-26); the further provisions within the 1985 Act (paras. 27-35) and other context from earlier legislative background (paras. 36-38).

Finally, as a point of procedure, the Court was clearly concerned that as the appellants were seeking to restrict the interests of the public, the Attorney-General ought to have been joined as defendant to the proceedings.  The Court found that it was inappropriate for the High Court to have granted relief affecting the public’s rights in the absence of such joinder.

Ned Westaway, Esther Drabkin-Reiter and Stephanie Bruce-Smith of Francis Taylor Building acted as counsel, pro bono, for the Open Spaces Society in the Supreme Court.  Richard Honey KC also acted for the Society in the Court of Appeal.