Dartmoor, camping and the meaning of fun: a short point about litigating language, courtesy of Darwall v Dartmoor NPA

19/01/2023

On 13 January 2023, the Chancellor of the High Court, Sir Julian Flaux, handed down judgment in Darwall v Dartmoor National Park Authority [2023] EWHC 35 (Ch), following which the determination that there is no statutory right of wild camping on the Dartmoor commons has been generating column inches.

The judgment is lengthy and technical, and will take some digesting. Feelings will run high, no doubt.

One more general point does, however, strike me on my first look at the decision, concerning certainty (or the lack thereof) as to the judicial interpretation of words and language.

The provision in question here was section 10(1) of the Dartmoor Commons Act 1985, as set out in paragraph 2 of the judgment thus:

“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.”

A key question was therefore whether or not wild camping is ‘open-air recreation’.

The court thought not, and seems to have taken that view quite clearly as a matter of language, as per paragraph 80 of the judgment, where the court compares the position with that of rock climbing[A1]  and continues:

“However, it seems to me to be a distortion of language to say of someone who has gone on a long hike on Dartmoor, taking more than a day and who pitches a tent to sleep for the night, that they have gained access for the purpose of wild camping. The open-air recreation in which they are engaging is the hiking not the wild camping. The wild camping is, as Mr Morshead KC correctly categorised it, a facility to enable the person in question to enjoy the open-air recreation of hiking.”

Simply on reading the words themselves, some might have expected this, but I suspect that by no means everybody would have done.

That camping is not itself open-air recreation might come as a surprise to those who do (as the internet readily reveals) go camping for the pleasure of pitching a tent, tucking into a ration pack and then enjoying (or perhaps enduring, depending on perspective) a night under the stars. These individuals might not necessarily consider what they do to be ancillary to or facilitating something else.

Likewise, many a parent will be familiar with having had to arrange a camping trip into the garden, purely for the hoped-for fun of the exercise.

Of course, these examples are not necessarily the same as camping purely to break a hike overnight. In any event, the point of language seems not to have troubled the court greatly at all.

I think the reminder might be this: in litigation, we may have a view, but we find out what something means when a court (or the final one) tells us!

Oliver Mitchell

Guildhall Chambers

19 January 2023

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