Landowners sought a declaration that the public had no right to wild camp on Dartmoor Commons under section 10(1) of the Dartmoor Commons Act 1985. The Supreme Court held that ‘open-air recreation’ includes camping, and the words ‘on foot and on horseback’ describe the means of access, not the permitted activities. The appeal was dismissed.
Background
The appellants, Mr and Mrs Darwall, are farmers and landowners who own land at Blachford Manor on Dartmoor, including Stall Moor, an area of open land on the Dartmoor Commons. Concerned about potential harm from wild camping on the Commons near their land, they brought proceedings against Dartmoor National Park Authority (DNPA) seeking a declaration that section 10(1) of the Dartmoor Commons Act 1985 does not grant the public a right to pitch tents or otherwise make camp overnight on the Commons.
Section 10(1) of the 1985 Act provides:
“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.”
At first instance, Sir Julian Flaux, the Chancellor of the High Court, granted the appellants the declaration sought, holding that section 10(1) does not grant the public a right to camp on the Commons. DNPA successfully appealed to the Court of Appeal, which held that the words of section 10(1) are clear and unambiguous, that “on foot and on horseback” describe the means of access, and that open-air recreation includes wild camping. The appellants then appealed to the Supreme Court.
The Issue(s)
The central issue was a short point of statutory construction: whether section 10(1) of the 1985 Act confers on the public a right to pitch tents or otherwise make camp overnight on the Dartmoor Commons.
The appellants argued that the open-air recreation referred to in section 10(1) must be of a kind carried out on foot or on horseback, and that the right does not cover any form of recreation involving cessation of walking or riding. DNPA and the Open Spaces Society (intervener) submitted that “on foot and on horseback” describe the means by which access to the Commons is gained, and do not qualify the forms of open-air recreation that may be enjoyed once access has been obtained.
The Court’s Reasoning
The ordinary meaning of section 10(1)
The joint judgment of Lord Sales and Lord Stephens (with whom Lord Reed, Lady Rose and Lady Simler agreed) began with the wording of section 10(1) itself, applying normal principles of statutory interpretation. The Court noted that it sought to ascertain the meaning of the words used in the statute in the light of their context and the purpose of the statutory provision, citing Lord Hodge’s statement in R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2022] UKSC 3:
“The courts in conducting statutory interpretation are ‘seeking the meaning of the words which Parliament used’ … Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections.”
The Court identified several indications from the wording of section 10(1) itself that wild camping is encompassed by the provision:
First, as a matter of ordinary language, camping is a form of “open-air recreation”. The words “on foot and on horseback” describe the means by which the public are to have a right to gain access to the commons; they do not qualify the words “for the purpose of open-air recreation” which follow.
The Court rejected the appellants’ extreme interpretation, holding it would produce absurd results:
“it would be absurd to construe section 10(1) as not including a right to carry on such an activity. We agree with Underhill LJ at para 65 that Parliament cannot have intended this. The same reasoning applies in relation to the open-air recreational activity of camping.”
Second, the structure of the provision contemplated that activities on the Commons would be regulated by public regulations (byelaws, rules), not by individual landowner enforcement through trespass actions. The public regulation in place at the time of enactment (Schedule 2 to the 1949 Act) did not prohibit camping but did prohibit certain associated activities such as lighting fires, which positively indicated that camping itself was a permitted activity.
Third, examining the second limb of section 10(1) (after the semicolon), the immunity from trespass is conferred by reference to the purpose for which a person has entered or is on the Commons, not by reference to the means by which they gained access. This confirmed that once access was gained on foot or horseback, any form of open-air recreation could be pursued.
The 1949 Act context
The Court examined the National Parks and Access to the Countryside Act 1949, within whose regime the 1985 Act is embedded. Section 5 of the 1949 Act establishes national parks to promote public enjoyment and refers to “opportunities … for open-air recreation” in open-ended and unqualified terms. Section 60(1) uses the same formula as section 10(1) for protecting access for open-air recreation, and section 10(3) of the 1985 Act expressly cross-references section 60(1).
Critically, section 114 of the 1949 Act provides that “open-air recreation” does not include organised games. The Court reasoned that the necessity of this express exclusion indicates Parliament was using the phrase with its ordinary wide meaning, which would naturally cover camping as well.
The Law of Property Act 1925
Section 193 of the Law of Property Act 1925 provided public access to metropolitan commons “for air and exercise” but expressly excluded any right “to camp or light any fire thereon”. The Court held that this express exclusion indicated that, without it, access for “air and exercise” — a narrower concept than “open-air recreation” — would naturally include camping. The absence of any similar exclusion in the 1985 Act therefore confirmed that camping falls within the scope of section 10(1).
Other aids to interpretation
The Court rejected the appellants’ reliance on Hansard material, holding that since there was no ambiguity in the 1985 Act, the rule in Pepper v Hart did not apply. The Court also expressed scepticism about the purported alternative basis for admitting Hansard to identify legislative purpose as distinct from meaning, endorsing the view expressed in Bennion on Statutory Interpretation that such a distinction may not be sustainable and is inconsistent with Pepper v Hart itself.
The appellants’ reliance on the principle of legality (that interference with fundamental property rights requires clear statutory language) was also rejected. The Court agreed with Sir Geoffrey Vos MR in the Court of Appeal:
“since the words of the 1985 Act have a clear meaning, that meaning cannot be altered by the fact that the landowners’ property rights are to some extent infringed by that meaning.”
The Court also noted that the legislation provided landowners with compensating advantages, including DNPA’s byelaw-making powers, power to appoint wardens, and power to regulate access by notice — mechanisms likely more effective in practice than private trespass actions.
The Court rejected DNPA’s reliance on the 1989 byelaws as an interpretive aid, since they were neither contemporaneous with the 1985 Act nor drafted by the same government department, citing R (PACCAR Inc) v Competition Appeal Tribunal [2023] UKSC 28.
The nature of the relief and procedure
The Court made significant observations about the procedure used. The appellants sought a declaration affecting the rights of the public, but the public was not represented. The Attorney General, who represents the Crown in matters involving public rights, was not joined as a party. The Court emphasised, citing London Passenger Transport Board v Moscrop [1942] AC 332 and Gouriet v Union of Post Office Workers [1978] AC 435, that a declaration purporting to bind the public ought not to have been granted without the Attorney General being a party:
“the jurisdiction of the court is not to declare the law generally or to give advisory opinions; it is confined to declaring contested legal rights, subsisting or future, of the parties represented in the litigation before it and not those of anyone else.”
Practical Significance
This decision confirms that the public has a statutory right to wild camp on the Dartmoor Commons under section 10(1) of the 1985 Act, subject to compliance with applicable byelaws, rules and regulations. The Court’s interpretation establishes that “on foot and on horseback” define the permissible means of access, not the scope of recreational activities that may be pursued once lawfully on the Commons.
The judgment reinforces the principle that where Parliament has created a scheme of public regulation for land access, landowners’ private law rights (including trespass) are displaced in favour of that public regulatory framework. It also provides important guidance on statutory interpretation, confirming that where statutory language is clear, neither the principle of legality nor Hansard material can be deployed to alter its meaning.
The procedural observations regarding the necessity of joining the Attorney General in proceedings affecting public rights serve as a significant reminder for future litigation of this nature.
Verdict: The appeal was dismissed. The Supreme Court upheld the Court of Appeal’s decision that section 10(1) of the Dartmoor Commons Act 1985, on its true construction, confers on the public a right to pitch tents or otherwise make camp overnight on the Dartmoor Commons, as camping constitutes a form of open-air recreation within the meaning of the provision.
Source: Darwall v Dartmoor National Park Authority [2025] UKSC 20
