Alexander Darwall Diana Darwall v Dartmoor National Park Authority
| Jurisdiction | England & Wales |
| Judge | Sir Geoffrey Vos,Lord Justice Underhill,Lord Justice Newey |
| Judgment Date | 31 July 2023 |
| Neutral Citation | [2023] EWCA Civ 927 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Appeal No: CA-2023-000229 |
and
[2023] EWCA Civ 927
Sir Geoffrey Vos, MASTER OF THE ROLLS
Lord Justice Underhill,
Vice President of the Court of Appeal (Civil Division)
and
Lord Justice Newey
Appeal No: CA-2023-000229
Case No: PT-2022-000194
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST
Sir Julian Flaux, Chancellor of the High Court
Royal Courts of Justice
Strand, London, WC2A 2LL
Timothy Straker KC and Vivienne Sedgley (instructed by the County Solicitor, Devon County Council) for the appellant/defendant (the Authority)
Timothy Morshead KC (instructed by Irwin Mitchell LLP) for the respondent/claimant (the landowners)
Richard Honey KC, Ned Westaway, and Stephanie Bruce-Smith for the Open Spaces Society (the Open Spaces Society)
Hearing date: 18 July 2023
Sir Geoffrey Vos, MASTER OF THE ROLLS:
This appeal raises a short point of statutory construction. The question is as to the proper meaning of the words “the public shall have a right of access to the commons on foot and on horseback for the purpose of open-air recreation” in section 10(1) (section 10(1)) of the Dartmoor Commons Act 1985 (the 1985 Act).
The landowners submit, and Sir Julian Flaux, Chancellor of the High Court (the Chancellor), held at [78], that the “right of access” in question was “the statutory formula which [was] being used to describe the right to roam on the [Dartmoor] Commons”. Accordingly, the Chancellor declared that section 10(1) did “not confer on the public any right to pitch tents or otherwise make camp overnight”. The landowners argue that the right of access was to be exercised “on foot or on horseback”, and in any event, sleeping, whether in a tent or otherwise, was not a recreation.
The Authority, supported in this court (but not below) by the Open Spaces Society, submits that the important question is as to the meaning of the words “open-air recreation”, and that the natural understanding of those words includes what has been referred to as “wild camping”. Section 10(1), according to the Authority, permits the public to roam the Dartmoor Commons and to erect a tent and sleep within it overnight, so long as they do no damage to walls, fences, hedges and gates.
Both sides say that they are advancing the clear and unambiguous meaning of section 10(1). Indeed, the Chancellor held at [84] that the landowners' construction was just that. Both sides submit that their construction is supported by the statutory history and, to some extent, by common understanding. The landowners pray in aid, in case the words of section 10(1) should be held to be unclear or ambiguous, three well-known principles of construction. First, they say that the 1985 Act should not be construed so as to expropriate or reduce the value of private property. Secondly, they say that private acts (like the 1985 Act) should be construed against their promoter, which here was the Authority's predecessor, the Devon County Council. Thirdly, they rely on materials from Hansard to support their construction, which they claim to be admissible under the principles enunciated in Pepper v. Hart [1993] AC 593 at 634–5 per Lord Browne-Wilkinson ( Pepper v. Hart).
I have concluded with some reluctance, bearing in mind the clear and opposite view reached by the Chancellor, that the words of section 10(1) are indeed clear and unambiguous. They allow the public to engage in open-air recreation on the Dartmoor Commons provided they proceed on foot or on horseback. Open-air recreation includes wild camping, although such an activity must be conducted in strict accordance with the applicable byelaws, which were made by the Authority and confirmed by the Home Secretary in October 1989 (the Byelaws).
I shall proceed in this judgment to set out briefly (i) the relevant statutory history, (ii) the factual background so far as material, (iii) a summary of the Chancellor's reasoning, and (iv) discussion of my reasons.
The relevant statutory history
Section 193 (section 193) of the 1925 Act is a crucial starting point for the statutory history. It provided “rights of access for air and exercise” to metropolitan commons (which obviously did not include the Dartmoor Commons) as follows:
193. — Rights of the public over commons and waste lands.
(1) Members of the public shall, subject as hereinafter provided, have rights of access for air and exercise to any land which is a metropolitan common within the meaning of the Metropolitan Commons Acts, 1866 to 1898, … in manner hereinafter provided:
Provided that –
(a) such rights of access shall be subject to any Act, scheme, or provisional order for the regulation of the land, and to any byelaw, regulation or order made thereunder or under any other statutory authority; and
(b) the Minister shall, on the application of any person entitled as lord of the manor or otherwise to the soil of the land, or entitled to any commonable rights affecting the land, impose such limitations on and conditions as to the exercise of the rights of access or as to the extent of the land to be affected as, in the opinion of the Minister, are necessary or desirable for preventing any estate, right or interest of a profitable or beneficial nature in, over, or affecting the land from being injuriously affected …; and
(c) 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; … [underlining added].
The National Parks and Access to the Countryside Act 1949 (the 1949 Act)
The long title to the 1949 Act provided that it was an Act to “make provision for National Parks” and “to make further provision for the … improvement of public paths and for securing access to open country”. The 1949 Act provided the statutory foundation for the establishment of the Dartmoor National Park.
The following sections of the 1949 Act are included in Part II concerning “National Parks”:
Section 5 – National Parks.
(1) The provisions of this Part of this Act shall have effect for the purpose–
(a) of conserving and enhancing the natural beauty, wildlife and cultural heritage of the areas specified in the next following subsection; and
(b) of promoting opportunities for the understanding and enjoyment of the special qualities of those areas by the public.
(2) The said areas are those extensive tracts of country in England … as to which it appears to Natural England that by reason of —
(a) their natural beauty, and
(b) the opportunities they afford for open-air recreation, having regard both to their character and to their position in relation to centres of population,
it is especially desirable that the necessary measures shall be taken for the purposes mentioned in the last foregoing subsection.
Section 12 – Provision of accommodation, meals, refreshments, camping sites and parking places
(1) A local planning authority whose area consists of or includes the whole or any part of a National Park may make arrangements for securing the provision for their area (whether by the authority or by other persons)–
(a) of accommodation, meals and refreshments …;
(b) or camping sites; and
(c) of parking places and means of access thereto and egress therefrom,
and may for the purposes of such arrangements erect such buildings and carry out such work as may appear to them to be necessary or expedient …. [Underlining added].
The following sections of the 1949 Act are included in Part V concerning “Access to Open Country”:
Section 59.—Provision for public access to open country.
(1) The provisions of this Part of this Act shall have effect for enabling the public to have access for open-air recreation to open country—
(a) to which the provisions of the next following section are applied by an agreement under this Part of this Act (hereinafter referred to as an “access agreement”) or by an order under this Part of this Act (hereinafter referred to as an “access order”),
(b) acquired under this Part of this Act for the purpose of giving to the public access thereto.
(2) In this Part of this Act the expression “open country” means any area appearing to the authority with whom an access agreement is made or to the authority by whom an access order is made or by whom the area is acquired, as the case may be, to consist wholly or predominantly of mountain, moor, heath, down, cliff or foreshore (including any bank, barrier, dune, beach, flat or other land adjacent to the foreshore).
Section 60 – Rights of public where access agreement, order in force.
(1) Subject to the following provisions of this Part of this Act, where an access agreement or order is in force as respects any land a person who enters upon land comprised in the agreement or order for the purpose of open-air recreation without breaking or damaging any wall, fence, hedge or gate, or who is on such land for that purpose after having so entered thereon, shall not be treated as a trespasser on that land or incur any other liability by reason only of so entering or being on the land:
Provided that this subsection shall not apply to land which for the time being is excepted land as hereinafter defined.
(2) Nothing in the provisions of the last foregoing subsection shall entitle a person to enter or be on any land, or to do anything thereon, in contravention of any prohibition contained in or having effect under any enactment.
(3) An access agreement or order may specify or provide for imposing restrictions subject to which persons may enter or be upon land by virtue of subsection (1) of this section, including in...
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