The Court of Appeal considered s10(1) of the Dartmoor Commons Act 1985, which provides that the public shall have a right of access to the Dartmoor Commons on foot and on horseback for the purpose of open-air recreation.  It held that the right allows the public to engage in open-air recreation on the Dartmoor Commons provided they access the commons and proceed on foot or on horseback.  The Court held that the right is not confined to the kind of open-air recreation actually undertaken on foot or on horseback, but rather is a broad, general right to engage in open-air recreation on the Dartmoor Commons, subject to the restrictions set out in the legislation and the relevant byelaws. 

The Court also held that open-air recreation includes wild camping.  The s10(1) right allows members of the public to rest and sleep on the Dartmoor Commons, whether by day or by night, whether on the ground or in a tent or otherwise.  The Master of the Rolls said at [55] that “a walker resting by sleeping is merely undertaking an essential part of the recreation of a lengthy walk”.  Underhill LJ said at [68]:

“Many people take pleasure in the experience of sleeping in a tent in open country, typically, though not invariably, as part of a wider experience of walking across country, and perhaps engaging in other open-air recreations such as birdwatching, during the day.  It is a perfectly natural use of language to describe that as a recreation, and also as occurring in the open air, notwithstanding that while the camper is actually in the tent the outside air will be to some extent excluded”.

Mr and Mrs Darwall are seeking permission to appeal to the Supreme Court.  

The judgment is available here. 

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