Dartmoor wild camping appeal won

[Bob Mehew]

A point of detail, during the committee reading stage of the CRoW bill, a proposal was made to define the meaning of open air recreation. The Minister in response stated “...the Government have chosen the route of listing excluded activities...” and “We are trying to allow everything that is not specifically excluded”. See https://www.publications.parliament.uk/pa/cm199900/cmstand/b/st000404/am/00404s06.htm

 

[paul]

Things aren't as clear cut even in Scotland regarding access. A running event in Pentland has been cancelled due to issues with interpretation of whether permissions are required and/or compliance with the Scottish Outdoor Access Code.

See http://carnethy.com/pentland-skyline-race-2023-why-we-have-cancelled/

 

[Stuart France]

At risk once again of presenting inconvenient truths being construed as a “rant” … I would like to clarify a few points about Dartmoor arising in the thread posts above.

The Dartmoor right of public access is not via any “local byelaw” but was granted by Act of Parliament, i.e. the 1985 Dartmoor Commons Act at section 10(1). The phrasing of this section is very similar to both earlier and later access legislation with a subtle difference: camping is not mentioned on any “banned list”, similarly caving is not prohibited either, therefore neither is banned, and therefore both are implicitly lawful unless they do not fall within the ambit of “open-air recreation”. Someone disputing that would have to obtain a civil court ruling on their alternative proposed interpretation, as has happened.

The judge the recent Dartmoor appeal heard and rejected pleas including:
- camping is not open-air recreation because a tent is an enclosed space (where have we heard that argument before?)
- sleeping in a tent is not open-air recreation because the person is unconscious
- unlike CROW where the grant of access explicitly includes “remaining” on the land, the Dartmoor Act implies only “transit across” rather than “remaining on” the moor, in other words the visitor would have to keep moving along as would apply to any public highway including the use of public footpaths whose purpose is to get you from A to B.

Compare the wording of DCA 1985 section 10(1) to CROW Act 2000 where the latter’s Schedule 2 section 2(1)(s) and LPA Act 1925 section 193(1)(c) explicitly ban camping on Access Land and Urban Commons respectively.

As to Loch Lomond, the NPA as the planning authority for the area, exercised its powers in 2017 under the National Parks (Scotland) Act 2000 to create local byelaws to restrict camping at hot spots such as some lake shores (under 4% of its land area) from March to September each year. This was in force before Covid and it has nothing to do with Covid and nothing to do with the Land Reform (Scotland) Act 2003 which is the Scottish equivalent of the CROW Act. The detail of the NPA byelaws makes hilarious reading as they have tried to cover all loopholes or exceptions such as wigwams, unstructured bivouacs, the setting up of shelters overnight hours only except for umbrellas, sleeping in a stationary vehicle unless the vehicle is on a road within the meaning of the Roads (Scotland) Act 1984.

 

[mikem]

Camping is not in the Act though - that gives the National park rights to set their own byelaws, which (still) include camping:

Byelaws | Dartmoor

_______________

www.dartmoor.gov.uk

I'd forgotten Loch Lomond was that early, as the big news about people camping everywhere really kicked off during covid.

 

[Stuart France]

Unfortunately you still don't seem to get it. Specific outdoors recreations are not listed in any of the access Acts over the past century as "allowed activities" and that includes camping, caving, climbing, walking, running, cycling, swimming, flying kites, sunbathing, picking wild berries, star gazing, etc, etc. The way all of the public recreational Acts work is to give a general grant of access, described as "air and exercise" in earlier ones, and "open-air recreation" in later ones, then to subtract the "forbidden activities" or "forbidden places" by way of a list of exceptions sometimes given in an attached schedule. In the specific case of CROW, you have no right to pick fruit or cycle or use a metal detector, or camp; you can sunbathe on a river bank or beside a lake but not "bathe" in it.

Camping, where it is not on an explicit "banned list" in an Act of Parliament becomes a local planning or specific park management issue. The Dartmoor National Park hasn't issued any byelaws to permit camping as byelaws are made to restrict things locally that would otherwise be legal. The Dartmoor National Park hasn't issued any byelaws to ban camping either, which would be pretty astonishing considering it has just spent a lot of money defending the camping rights that are implicit in the Dartmoor Commons Act.

In the case of Scotland, camping in the wilds is legal and acceptable so long as it is done considerately and doesn't interfere with other people's enjoyment of an area. In the case of the Loch Lomond and Trossachs National Park Authority, which runs a National Park for the benefit of all its visitors, and is the planning authority for its area, it decided to stop camping (other than on commercial sites or in campervans parked on public highway) at hot spots in the busy part of the year because it had reached a level that interfered with other people's enjoyment.

The important point you seem to have lost sight of in all this is that the Dartmoor case had to rule on whether being in an enclosed space stopped activities from being "open-air" ones as officialdom hitherto insisted was the case - to the detriment of caving. As the open-air argument was the main plank of WG/NRW/Defra's defence in the BCA's JR case, the defence position is now in ruins.

 

[David Rose]

Unfortunately, as you well know, it was not as simple as that. The judicial review was primarily raised due to the fact that you, as the representative of caving in Wales, had been excluded from the Access Reform Advisory Group. The secondary point, the grounds for exclusion given, were that CRoW did not apply to caving. Despite lengthy and expensive legal action undertaken on your behalf the primary point continued to prevent the secondary point ever getting in front of a judge. After 80k down, and a lot of diligent work by Dave Rose and the team, all the legal advice was to taken the settlement on offer. You didn't agree with it, you made a big fuss, but pretty much everyone else connected with the case knew it was the only realistic course to take.

The Dartmoor case is a positive sign but it doesn't in itself mean that the caving CRoW case would be won, even in front of the same panel. The BCA group you walked away from are still working on it.

Thank you for this succinct and accurate post, Badlad. For reasons best known to himself, Stuart France continues to criticise the BCA's handling of the judicial review in which he was deeply involved, and which arose from his own exclusion from the Welsh government's Access Reform Advisory Group. For the record: as the case unfolded over a period of almost two years, I kept Stuart and the other members of the BCA CROW working group fully informed on every development at every stage, as I did the BCA executive. I also made regular reports to the BCA Council. When the unequivocal advice came from our very impressive and able QC (as he then was) that for technical, legal reasons we had little choice but to settle the case rather than throw more good money after bad, I immediately sent both his email and one from myself that tried to explain the position in lay terms to all the above. No one challenged that advice, unwelcome as it was. Had we ignored the advice and ploughed ahead, the strong likelihood was that we would have achieved nothing other than a significant increase in what was already an eye-watering legal bill.

Some months later we were were further advised that if we wanted to launch a second JR after the Welsh government had rejected the submissions we made under the settlement's terms, we would likely lose, because the government was arguing that accepting that CROW did apply to caving would have required significant expenditure that would, in its view, be better deployed elsewhere.

I suppose some might find it in some way glorious to fight court battles that end in expensive losses, but the BCA took the view that given we had already spent £80k, this really would have been a Quixotic, pointless mission.

All this was done and dusted by the spring of 2021. I was rather surprised when, the following year, Stuart told a BCA council meeting that I had kept everyone in the dark about the decision to settle the case. I was away caving in a remote village in Mexico at the time, so was unable to defend myself. The email evidence demonstrates beyond any doubt that in fact, as stated above, I kept the working group and exec in the loop at every stage.

My sister, Dinah Rose KC, wrote the legal opinion that underpinned the BCA's decision to go for a JR when the opportunity arose some years later. We had a chat last week about the Dartmoor Court of Appeal ruling. It is, she thinks helpful that the court has issued a judgment that supports the notion that open air recreation can include spending nights inside a tent. However, it concerns a different act of parliament and wouldn't be binding on any future court that might consider caving and CROW. To state that the government position is therefore in "ruins" is, therefore, an exaggeration. For the time being, as discussed at a working group meeting with the BCA chair last week, attempting to persuade individuals who may be part of the next UK government of the merits of our position looks like the best way to make progress.

 

[mikem]

The thing that some people seem to forget is that whilst UK legislation is moving towards having to be specifically excluded or not, currently it still relies on whether it is in the spirit of the law or not, which is less clear cut.

 

[Stuart France]

UK law has always been based on the principle of listing the specific exclusions to some general principle such as the right to open-air recreation on Access Land. I beg to disagree with you, but nothing has changed nor is in the process of changing in the style and logic of UK legislation.

The Dartmoor appeal has interpreted the law as to whether open-air recreation includes being inside a tent on Dartmoor and ruled that it does. It applied the spirit of the law to dismiss artificial and unrealistic objections to recreations unloved by the likes of Defra. It also established that being asleep inside such a tent as part of an out-of-doors activity is open-air recreation too, in other words that recreation can be multi-day.

The DNPA have done caving a big favour by being persistent and sticking to their guns, which is more than can be said for certain others.

 

[mikem]

The specific exclusions were only added once someone had tried to bypass the intended meaning - anyway that's not really important to this discussion.

Government departments will always stand a better chance than small organisations.

 

[Stuart France]

The specific exclusions were only added once someone had tried to bypass the intended meaning - anyway that's not really important to this discussion.

Government departments will always stand a better chance than small organisations.

I'm sorry but that's not right:

- the exclusions to general grants of public 'access to the outdoors' at Schedule 2 of the CROW Act and in section 193 of the Law of Property Act and in section 10 of the Dartmoor Commons Act are today exactly the same words that Parliament originally used. Nothing has been added to or subtracted from these access provisions since the Acts were passed, for reasons of "bypassing the intended meaning" nor anything else.

- just because government departments have a bottomless pit of public money to throw at promoting their own private agendas does not mean it is either impractical or inappropriate for individuals or small organisations to oppose them in the wider public interest and sometimes win

- some sports, like fishing, have set up their own legal units, Fishlegal in their case, recognizing in this day and age that it is becoming increasingly important to have teeth and be seen to have teeth. Fishlegal has JR'd NRW more than once.

 

[mrodoc]

A propos of nothing in particular but on the subject of banning activities there is a sign in Brixham Harbour that states that swimming or attempting to swim in the harbour is not allowed. it is widely ignored but I have always wondered how you show that you are attempting to swim! Could you be ticked off for parading near the water's edge in Speedos for instance?

 

[pwhole]

There's only one way to find out

 

[mikem]

I wasn't referring to modern legislation, where they do consider most likely avoidance tactics, but earlier versions.

& yes I know government departments do lose sometimes, but fishlegal have a lot more backing than the BCA

 

[Fjell]

It’s dangerous in the harbour, especially in the inner harbour. There are lots of nicer places to go swimming nearby, not least the seawater swimming pool in walking distance.

Never ever swim in a marina or near boats plugged in. Lots of boats have inadequate mains setups and people have drowned when they get a shock, mild or otherwise due to leakage between the boat and dock.

ESD & FAQ

WHAT IS ELECTRIC SHOCK DROWNING? Electric Shock Drowning (ESD) is the result of the passage of a typically low level AC current through the body with sufficient force to cause skeletal...

www.electricshockdrowning.org

 

[Stuart France]

I wasn't referring to modern legislation, where they do consider most likely avoidance tactics, but earlier versions.

& yes I know government departments do lose sometimes, but fishlegal have a lot more backing than the BCA

What non-modern legislation or earlier versions of modern legislation are you thinking of there, Mike? Can I have examples please. I've already said that everything enacted since 1925 granting public access to land for recreation has explicit exclusions built in that have never been altered from their original text (other than being repealed when replaced with improved access terms, such as when CROW came along).

The earliest references I've found so far to ‘open air’ and ‘recreation’ and 'exercise and recreation' is during Parliamentary debates on the 1845 Inclosure Act. Section 15 there sets out exercise and recreation rights on village greens, and section 30 makes provisions to create areas for exercise and recreation on common land at the 'discretion' of the commons commissioners, which implies with ad hoc restrictions.

The Commons Act 1236 is silent on recreation, so that gives you a window of 1236-1845 to demonstrate where some unqualified absolute statutory right to outdoors recreation was first enacted.

 

[mrodoc]

It’s dangerous in the harbour, especially in the inner harbour. There are lots of nicer places to go swimming nearby, not least the seawater swimming pool in walking distance.

Never ever swim in a marina or near boats plugged in. Lots of boats have inadequate mains setups and people have drowned when they get a shock, mild or otherwise due to leakage between the boat and dock.

ESD & FAQ

WHAT IS ELECTRIC SHOCK DROWNING? Electric Shock Drowning (ESD) is the result of the passage of a typically low level AC current through the body with sufficient force to cause skeletal...

www.electricshockdrowning.org

Interesting. I recall years ago using a private swimming pool and remarking on the tingling I was getting resting on the edge. The owner, a fellow doctor, seemed unconcerned but it bothered me!

 

[aricooperdavis]

To bring the thread back on topic, some national park authorities seem to be quite supportive of caving (I'm looking at you, YDNP). Has this case demonstrated that they would have the power to introduce bylaws clarifying the status of caving as open air recreation? Would lobbying them to do so be something that regional councils could do to improve access in their area?

 

[ChrisB]

I don't think National Park authorities have the power to introduce by-laws that extend public rights, except where Parliament has given them such powers. In the case of Dartmoor, the NPA effectively asked the court to accept their interpretation of the Act; if the appeal had been refused, the NPA could not have introduced by-laws to the same effect. They can restrict public rights, but extending them would be effectively removing private rights. I think local authorities (including NPAs) can designate new public rights of way, but only by following a specific process, defined by Parliament.

So, I don't think they can pass by-laws, but it would be useful if NPAs made public statements that they believe caving should be considered as open air recreation.

 

[Badlad]

CNCC has established good relations with the YDNPA. Cavers sit on the LAF and the Cave and Crag Access Group for example. YDNPA recognise the caves and caving as an important part of the NP and are generally supportive. However, when interpreting CRoW and such like they seem bound to take their advice from Natural England/Defra and despite some having private views to the contrary they appear to have to accept them. We have tried.

 

[Fjell]

The Park is basically a planning outfit, and often not a good one. It routinely fails to enforce stuff that a normal council would be all over. It has no money. It has no power to remove rights from landowners. Not the least is that landowners have rights under the Human Rights Act, which is why it will require an overt change to the law and a clear definition of what is allowed. It seems highly unlikely that access to artificial workings or entrances will be a right, and any sort of construction certainly will not be, as will anything that is commercial.

You would be hard put to get the public to agree that caving is open air recreation. For me, CRoW remains something which was entirely about access on foot, driven by people like the Ramblers who were miffed about the Forest of Bowland. For the overwhelming majority of people who go walking it has had flat zero impact. They don’t go anywhere they didn’t go before. Extremely few people leave existing public footpaths, and those that do did so before. I have yet to see anyone rambling on the Forest of Bowland except on the pre-existing main path.

If you are going to allow caving I would suggest that you are going to have to allow everything else. Cycling, horses, zorbing, aerial suicide, camping, holding raves etc etc. Probably best if the government bought all the land and then hired a bunch of people to expensively manage it. Give something to do for all those underemployed ecology and zoology graduates knocking about.