An update on the Dartmoor backpack-camping appeal

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The court of appeal hearing of Dartmoor National Park Authority and Open Spaces Society v Darwall was on 18 July, and can be watched here. Our aim was to overturn the ruling of Sir Julian Flaux in the high court in January that the term ‘open-air recreation’ in section 10 of the Dartmoor Commons Act 1985 does not include the right to backpack or ‘wild’ camp.  The court of appeal judges were Sir Geoffrey Vos (Master of the Rolls), Lord Justice Underhill, and Lord Justice Newey.

Brat Tor and Great Links, Dartmoor Photo: Open Spaces Society

Brat Tor and Great Links, Dartmoor. Photo: Open Spaces Society

Counsel for the Dartmoor National Park Authority, Timothy Straker KC, and for the Open Spaces Society, Richard Honey KC and Ned Westaway (acting pro bono), argued that open-air recreation does include the right to backpack camping. The society’s counsel referred to a mass of previous legislation relating to access to commons and other open country, in which camping is expressly excluded from the right of access. It follows that camping—unless so excluded—falls within the broad definition of open-air recreation.

Timothy Morshead KC, counsel for Alexander and Diana Darwall, conceded that, in seeking to exclude camping on the commons, they intended to exclude camping with a tent, which led to the judges asking whether camping without a tent, such as with a bivvy or hammock, should be included in the definition of open-air recreation. Morshead then went on to claim that sleeping on the moor was not a form of open-air recreation, which led to further questions of what happens when someone has a snooze in the sun.

The judges were keen to establish where Morshead drew the line between structures which were and were not admissible. If a tent was barred, what about pop-up inflatable goalposts from Argos, for a children’s kickabout? What about an artist who erected an easel to paint a cloudscape? Morshead did not leave us with a clear picture of what was in and what was out.

We await the decision.

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