In January 2023, Sir Julian Fleux published his judgment on Darwall v Dartmoor National Park Authority [2023] EWHC 35 (ch) which made wild camping on Dartmoor illegal without the permission of the landowner, removing the last area of England and Wales where true wild camping was possible. However, a finding by the Court of Appeal in July of the same year has overruled this initial judgment. ([2023] EWCA Civ 927.) In his leading judgment, the Master of the Rolls recognised that section 10(1) of the Dartmoor Commons Act 1985 does facilitate a right to wild camp without landowners’ permission. While this clarifies the position in relation to Dartmoor for the foreseeable future, we must consider whether this judgment has opened the gate to greater land access reforms, or whether it is a mere stile, allowing access to an already embedded tradition.

One difference that was visible from the outset of the appeal was the presence of an intervening party, the Open Spaces Society, supporting the Dartmoor National Park Authority. The presence of such an intervention highlights the mass of public support that this case has garnered over its short timeframe. Considering interest over this issue only arose in the early months of 2022, the public response to the case progression has been omnipresent across the news and social media. Courteous protests and demonstrations were seen outside the Royal Courts of Justice in both January and July, in ever-increasing numbers, whilst closer to home action groups such as Right to Roam staged peaceful marches onto the moorland, inspiring the creatures of old mythology. What is clear is that this case exceeds the right to pitch a tent, or demonetization of common land, it is a fight for greater access to the countryside as a national freedom. We may speculate why this case has triggered such a response, coming out of the recent pandemic, citizens certainly gained a greater appreciation of Britain’s wild spaces, with those in Scotland already enjoying the benefits of the Land Reform Act 2003. It is this act which many hope to emulate within England and Wales, and by looking at the roles of the people we can see how this case has opened the gate for such an act to take place. It is not only the action groups that have jumped on this case, political parties, such as Labour and the Green Party, have sought to capitalise on the public engagement with this case, promising to implement a similar act to that in place in Scotland. And why not? The act already exists elsewhere, it works, and it seems a natural progression from our current state. As such, this case may have opened a gate to greater land reforms. There is a clear social desire for such reforms, and the politicians are beginning to recognise this. Whilst now little will be done to expand land access, the gate could be seen to be open for future discussion on the topic. However, what is perhaps missed here is not a problem of granting wider access, but more explaining why doing so could pose a difficulty.

One need not visit England and Scotland many times to notice their stark geographical differences. On the one hand, Scotland is heavily barren, with most of its natural landscape drawing stark similarities to that of Dartmoor and Snowdonia. Meanwhile, on the other hand, England’s landscape remains heavily agricultural or otherwise urban. Put simply, Scotland has greater land access laws because there is more like land to access. A much larger proportion of Scotland is of the type of land in question, than the proportion of common or waste land in England. We may speculate as to why this is; migration may play a role, with much of Scotland’s agricultural industry departing due to a heavy period of migration for the Scottish people to pastures new in Ireland and America. This migration was not witnessed on the same scale in England, and as such, whilst not as heavily as earlier in history, England still draws significant value from agriculture. Agriculture is an industry which needs protection, especially at a time of rising food prices, and international difficulties constraining supplies of agricultural produce. This is not a new issue, many of the previous acts governing land access passed in England and Wales originate from times not too distant from international conflict. The Law of Property Act 1925 and The National Parks and Access to Countryside Act 1949, two statutes which featured prominently in the present case, were both passed in proximity to global conflicts, World War one and World War two respectively, when the effects of rationing and the stress on agriculture had not yet retreated. By examining the role that England and Wales play as part of Britain’s agricultural power, and in contrast, Scotland’s lack of importance, we can see why land access to much of England and Wales has remained limited. Additionally, those areas that are reminiscent of Dartmoor, such as Snowdonia and the Lake District, do not suffer from rigid enforcement of their requisite land access laws. In the Lake District, for example, wild camping is tolerated above the highest fell wall, or simply, where you are far enough from civilisation to not prove a nuisance. As such, there is less demand for a law to formalise an accepted and tolerated tradition. In this matter, the July judgment does little more than place a stile to grant access to what was already known: Camping would continue, with or without permission, because in reality, national parks are almost impossible to enforce restrictions upon. Only the most ardent and prosaic of landowners would patrol his section of moorland enforcing his rights, and even he might give up when realising the cost to his lifestyle of doing so. A reformative law allowing greater freedom would only legitimise what is at heart, a traditional and embedded social practice, which will continue to exist with or without statutory backing.

Overall, the population of wild campers is left muddled. There is a great social issue to be discussed in opening the gate to wider land access, however, restrictions remain necessary to protect Britain’s agriculture. Additionally, there may be no need for such a law where camping practices are widely tolerated. For now, Dartmoor remains the only area in England and Wales where wild camping is definitively legal, yet with growing social sentiment and political backing, this issue is far from settled on a national level.

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