The age-old battle of competing access rights as against ownership of land has reared its head once again, this time with the arguments being played out in the Supreme Court [Darwall and another v Dartmoor National Park Authority].
The case focused on interpretation of statutory wording which, on its strict construction, allows the public to have a right of access to the Dartmoor Commons on foot and on horseback for the purpose of open-air recreation.
If individuals have accessed the land in such a manner and for such a purpose and have not damaged or injured any land, structures or livestock, then they should not be treated as a trespasser.
Judgment clarifies public rights
The case sought to clarify that open-air recreation included wild camping.
The landowner challenged the interpretation, suggesting that the wording only allows for the public to use the area on foot or horseback.
They highlighted that campers cause problems to their livestock and the environment and sought clarification that this activity was prohibited.
The Supreme Court held that the public does have a right to wild camp on Dartmoor Commons.
Whilst this decision represents a ‘win’ for many, it highlights the difficulties faced by landowners who want to protect and manage their land and guard it from those users who do not respect the byelaws.
A landmark case?
What is apparent is that this decision will be a catalyst for many groups now pushing to see greater clarification as to access rights to ‘green spaces’ across England and Wales alike (Scotland already benefitting from vigorous access rights under the Land Reform Act 2003) in the hope that the ‘green’ areas accessible to the public are expanded.
Although the Judgment is a sensible in terms of its strict statutory interpretation, the practical impact for landowners is considerable:
- Landowners have lost the ability to exclude campers on the Dartmoor Commons.
- It has been made clear that it is not appropriate for landowners to seek to introduce further and/or additional restrictions via the law of trespass. The judgment emphasises that regulation and enforcement are primarily public functions and not private actions in trespass.
- Landowners must rely on byelaws to regulate behaviour and protect their livestock and land. The Dartmoor National Park Authority retains powers to make and enforce byelaws, post notices, and appoint wardens.
- Landowners can still apply for temporary restrictions for reasons such as land management or public safety.
- The ruling does not create a “free-for-all”. Responsible access is a condition of the use on an individual basis. It does, however, flip the burden onto the landowners to regulate and restrict any misuse. It requires active scrutiny of the use of the land by the landowners. Some may say this is an impossible task to fulfil.
The impact that this case will have on broader access legislation is yet to be seen.
Political leaders will undoubtedly be faced with a greater pressure for an expansion of publicly accessible natural spaces.
It seems that the dichotomy of land ownership and the public demand for access is going to be placed under further tension off the back of this ruling.
If you need advice on access rights or managing land use disputes, please contact Catherine Gregson today.