Countryside in UK Law

First, the making of the TROs is one of the matters to which the Scheme is subject: this submission reverses that position by arguing the making of the TROs is itself subject to some (re-) authorisation of the Scheme. Secondly, following extensive consultation before November 2023, the Resolution does not say or imply that there will be further consultation before it is implemented. The phrase used is ‘a satisfactory TRO and public engagement outcome’.

Where there is doubt as to the way in which to interpret the language used in what Buckley LJ in Methuen-Campbell v Walters [1979] 1 QB 525 termed a “dispropriatory” Act (there the Leasehold Reform Act 1967), it is to be construed in favour of the party who is to be dispropriated: see p542. In Bennion at [27.6] pp 857–8, the principle is stated thus:

The third aspect of the context was the reports and debates which led to the 1949 Act. Two reports of committees under the chairmanship of Sir Arthur Hobhouse were described by the responsible minister Lewis Silkin MP as having had a “very great influence” on the proposed measures which became the 1949 Act and said the Government had “accepted them as to some 90 per cent”.

The second report was the Report of the Special Committee on Footpaths and Access to the Countryside of September 1947. This advocated conferring on the public a general right of access to open land, but Mr Morshead KC pointed out that nowhere does the report suggest that this right, if conferred, would include a right to camp. As he said, in the conclusion, the aspiration was expressed in terms of conferring on the public a right to

At that time in 1980 (and 1984), there were evidently some authorised camp and caravan sites, as well as unauthorised sites set up by certain landowners and it is clear from the submissions and evidence put forward by DNPA (or its predecessor) in promoting the 1980 Bill, that the mischief which it was seeking to address was, amongst other things, such unauthorised or unregulated sites and the pressure and harm they caused, which needed to be regulated and controlled.

It is true that the recreation in which the member of the public might engage when on the land the subject of an access agreement (in the case of the 1949 Act) or the Commons (in the case of the 1985 Act) could include other activities in addition to walking or horse riding. These could include having a picnic, walking a dog or observing wildlife, all of which can clearly be said to be ancillary to the right to roam.

However, given that, as I have found, the position before the 1985 Act was enacted was that members of the public did not have the right to camp on the Commons without the permission of the landowner, who could refuse such permission and ask walkers seeking to camp to move on, the effect of the statute giving a right to wild camp without permission would be that the landowner would have suffered a loss of control or a usurpation of his rights over his own land.