Alexander Darwall v Dartmoor National Park Authority

JurisdictionEngland & Wales
JudgeSir Julian Flaux C
Judgment Date13 January 2023
Neutral Citation[2023] EWHC 35 (Ch)
Docket NumberCase No: PT-2022-000194
CourtChancery Division
Between:
(1) Alexander Darwall
(2) Diana Darwall
Claimants
and
Dartmoor National Park Authority
Defendant

[2023] EWHC 35 (Ch)

Before:

THE CHANCELLOR OF THE HIGH COURT

Case No: PT-2022-000194

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

PROPERTY TRUSTS AND PROBATE LIST (ChD)

Rolls Building

Fetter Lane

London, EC4A 1NL

Timothy Morshead KC (instructed by Irwin Mitchell LLP) for the Claimants

Timothy Leader (instructed by the County Solicitor, Devon County Council) for the Defendant

Hearing dates: 13 and 14 December 2022

APPROVED JUDGMENT

This judgment was handed down remotely at 10:30am on Friday 13 January 2023 by circulation to the parties or their representatives by email and by release to The National Archives.

Sir Julian Flaux C

Introduction

1

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.

2

The sub-section provides as follows:

Section 10 – Public access to the commons.

(1) 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; 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.

Factual and procedural background

3

The Dartmoor National Park in Devon (‘Dartmoor’) was designated as such in 1951 under section 5 of the National Parks and Access to the Countryside Act 1949 (“the 1949 Act”). Within it, the Dartmoor Commons (‘the Commons’) are areas of unenclosed moorland which are privately owned, but on which other locals have the right to put their livestock. The Commons comprise some 37 per cent of the National Park and 75 per cent of the moorland.

4

The claimants, Mr and Mrs Darwall, are farmers, landowners and commoners. They have owned and lived at Blachford Manor, an estate on Dartmoor, since 2013. Part of the estate's farm includes Stall Moor, an extensive area of open land in a remote section of the Commons, where the Claimants keep their cattle, lambs and fallow deer. They have become concerned about the potential harm of camping, especially ‘wild camping’ or ‘backpacking’, on the Commons near Stall Moor.

5

The Defendant (‘DNPA’) is the National Park Authority for Dartmoor, having taken over that function from Devon County Council. In 1989, the Council promulgated byelaws under section 11 of the 1985 Act and section 90 of the 1949 Act, respectively, which remain in force. Byelaw 6 regulates camping. It provides:

“6 Camping

1. No person shall knowingly use any vehicle, including a caravan or any structure other than a tent for the purpose of camping on the access land or land set out for the use or parking of vehicles except on any area which may be set apart and indicated by notice as a place where such camping is permitted.

2. No person shall knowingly erect a tent on the access land for the purpose of camping:

(a) in any area listed in Schedule 2 to these byelaws [Schedule 2 contains a list of areas on the Moor and commons where camping is prohibited];

(b) within 100 metres of any public road or in any enclosure.

3. No person shall camp in a tent on the same site on the access land for more than two consecutive nights, except on any area which may be set apart and indicated by notice as a place where such camping is permitted.”

6

In autumn 2021, DNPA consulted the public on amendments it proposed to make to the byelaws. By letter dated 1 November 2021, the claimants' solicitors asserted that the right of access granted by section 10(1) of the 1985 Act ‘does not extend to a right for the public to camp or wild camp’. DNPA disagreed. By claim form issued on 7 March 2022, the Claimants commenced a claim under CPR Part 8, seeking a declaration that section 10(1) does not grant the public a right to camp on the Commons.

7

DNPA initially made an application to transfer the claim to the Administrative Court on the grounds that it was a public law claim which should be pursued by way of judicial review. However that application was abandoned and DNPA agreed to a Consent Order made by Master Clark on 6 July 2022 which gave directions towards the present trial.

Additional relevant legislation

8

In addition to section 10(1) of the 1985 Act, section 10(3) provides as follows:

“(3)

(a) The provisions of sections 60(5)(b) to (g), 66, 68 and 78 of the Act of 1949 and Schedule 2 to that Act (which relate to land excepted from any access agreement or access order, the effect of such an agreement or order on rights and liabilities of owners and maps) shall apply and have effect with respect to subsection (1) above and the exercise of the right afforded under that subsection, as those provisions apply and have effect with respect to section 60(1) of that Act and any access agreement or order.

(b) In their application for the purposes of this subsection the provisions of the said section 60(5)(e) shall have effect as if after the words therein in the first parenthesis there were inserted “or the processing of such minerals including the disposal of waste therefrom or activities ancillary thereto”.

9

Section 11 of the 1985 Act provides as follows:

Section 11 – Byelaws under Act of 1949 and wardens.

(1) The powers of the Park Authority to make byelaws and to appoint wardens under sections 90 and 92 of the Act of 1949 shall apply to the whole area of the commons to which under section 10(1) of this Act a right of access is given or such part thereof as may be specified in the byelaws as if the commons were land comprised in an access agreement in force under Part V of that Act.”

10

Section 193 of the Law of Property Act 1925 provides as follows:

Section 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, or manorial waste, or a common, which is wholly or partly situated within an area which immediately before 1st April 1974 was a borough or urban district, and to any land which at the commencement of this Act is subject to rights of common and to which this section may from time to time be applied in manner hereinafter provided:

[…]

(4) Any person who, without lawful authority, draws or drives upon any land to which this section applies any carriage, cart, caravan, truck, or other vehicle, or camps or lights any fire thereon, or who fails to observe any limitation or condition imposed by the Minister under this section in respect of any such land, shall be liable on summary conviction to a fine not exceeding £20 for each offence.”

11

Relevant provisions of the 1949 Act are as follows:

Section 1 – The National Parks Commission (as originally enacted)

There shall be a National Parks Commission which shall be charged with the duty of exercising the functions conferred on them by the following provisions of this Act –

(a) for the preservation and enhancement of natural beauty in England and Wales, and particularly in the areas designated under this Act as National Parks or as areas of outstanding natural beauty;

(b) for encouraging the provision or improvement, for persons resorting to National Parks, of facilities for the enjoyment thereof and for the enjoyment of the opportunities for open air recreation and the study of nature afforded thereby,

and of exercising such other functions as are conferred on the Commission by this Act

Section 5 – National Parks.

(1) The provisions of this Part of this Act shall have effect for the purpose–

(c) of conserving and enhancing the natural beauty, wildlife and cultural heritage of the areas specified in the next following subsection; and

(d) 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 11A – Duty of certain bodies and persons to have regard to the purposes for which National Parks are designated.

(1) A National Park authority, in pursuing in relation to the National Park the purposes specified in subsection (1) of section five of this Act, shall seek to foster the economic and social well-being of local communities within the National Park and shall for that purpose co-operate with local authorities and public bodies whose functions include the promotion of economic or social development within the area of the National Park.

(2) In exercising or performing any functions in relation to, or so as to affect, land in a National Park, any relevant authority shall have regard to the purposes specified in subsection (1) of section five of this Act and, if it appears that there is a conflict between those purposes, shall attach greater weight to the purpose of conserving and enhancing the natural beauty, wildlife and cultural heritage of the area comprised in the National Park.

Section 12 – Provision of accommodation, meals, refreshments, camping sites and parking...

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