Dartmoor wild camping appeal won

[Stuart France]

I think all of the above comments after the moderator's intervention concerning off-topic material are broadly correct. Unfortunately what he was hoping for, i.e. that planning authorities could somehow use new byelaws to create or extend or determine definitely that a public right exists where certain others are arguing that such does not exist, is simply not permitted.

Section 17 of the CROW Act sets out how planning/local authorities can pass byelaws to modify the default operation of Access Land. What they can do by way of new byelaws is limited to 3 categories, and all of them are to apply new restrictions not to liberalise anything:
1) for the preservation of order
2) for the prevention of damage to the land or anything on or in it
3) for securing that persons exercising [their access] right so behave themselves as to avoid undue interference with the enjoyment of the land by other persons.

I know that CROW does not apply in Scotland, but in effect what the Loch Lomond and Trossachs NPA did by curtailing camping in certain hot spots on a seasonal basis must fall under the Scottish equivalent of (3) at the very least.

 

[Stuart France]

It looks like this thread has come to an end so I’m surprised nobody mentioned the Dartmoor Commons Byelaws, the review of which gave the Claimants the foothold they needed to bring their case to prevent future camping. These are the byelaws which forbid camping on Dartmoor within 100 yards of a public road, for more than 2 nights at the same place, and so forth, to address local issues.

I’m also surprised that nobody mentioned, let alone spelled out, the caving-relevant content of the Appeal Court Judgment and the Skeleton Argument supporting the Open Spaces Society’s dramatic intervention in this case to take it to appeal and win it. Both these are required reading for all on BCA Council, and it goes without saying for the attention of Defra and Natural Resources Wales also.

Sir Geoffrey Vos, Master of the Rolls, said:
- “open-air” seems to me fairly clearly to refer to the outside air and to something done outside a building or structure”,
- the fact that a tent is closed rather than open cannot convert camping from being an open-air recreation into not being one.

Lord Justice Underhill, VP of the Court of Appeal, said:
- [the argument] that open-air recreation is … no more than being in the open air … takes too narrowly literal an approach to the structure and language of [the legislation],
- the “right of access for the purpose of open-air recreation” [is] not merely the right of access but a positive right to engage in the open-air recreation for the purpose of which the right of access is granted,
- I do not think it likely that Parliament can have intended to create so uncertain a situation. It is in my view more likely that Parliament’s intention was to confer a general right to engage in open-air recreation,
- camping overnight in a place which is not a dedicated campsite falls within the definition of “open-air recreation” … in my opinion it plainly does… It is a perfectly natural use of language to describe that as a recreation, and also as occurring in the open air, notwithstanding that while the camper is actually in the tent the outside air will be to some extent excluded.

 

[Stuart France]

Well, well ,well. Just when you thought it was all over - it now isn't. The wealthy landowner litigant has been given leave to appeal the Dartmoor camping case to the Supreme Court.

You can read all about its ultimate journey via an online search for "Dartmoor camping Supreme Court appeal". The earlier Court of Appeal case hinged on whether being enclosed inside a tent (and/or in a sleeping bag etc) in the context of undertaking countryside activities was "open-air recreation", and whether one could possibly still be doing recreation after becoming unconscious.

The three CA judges ruled unanimously that "open-air recreation" (the term used by the CROW Act as well as the Dartmoor Commons Act to describe what is permitted) did embrace being enclosed in a tent in the context of countryside activities - or inside anything else - and sleeping did not convert open-air recreation into non-recreation regardless of where the sleeping actually took place (inside a tent or lying on the ground etc).

The upcoming case seems likely re-visit the question of whether Parliament had ingeniously constructed the phrase "open-air recreation" so as to exclude camping and going to sleep in a tangential way rather than doing so explicitly, and the secondary matter of whether discussion about the extent that legislators mean what they say or say what they mean can be used as evidence in a case which revolves around semantics.

Why is this relevant? Because public bodies like Defra and NRW really do argue along the lines that caving is not "open-air recreation" because caves often put solid material between the visitor and what they consider "open-air" is, and secondly that Parliament had ingeniously constructed that "open-air recreation" phrase with the clear intention not to grant access rights to cavers.

 

[Fjell]

Prob the best thing the guy could do is turn the whole area into a wind farm. It’s otherwise unproductive land. Who could object to that?

 

[Stuart France]

For a start the Commoners could object. Plus there is the little matter of obtaining planning permission for a wind farm from the NPA who happen to be the defendant in the landowner's ongoing anti-camping litigation, consent from Natural England too concerning SSSIs, and so on. Buying up common land does not mean cornering the absolute rights to everything: others have legal rights too, farmers for example for their grazing, and the general public has a right to carry out open-air recreation on this land, the camping aspect of which is what this complainant wishes to terminate. Farming and recreation are not unproductive: both create economic activity in the region.

 

[Fjell]

The land is virtually worthless for farming. I was driving past it only a week ago, it’s pitiful. Labour are saying they are going to force legislation to build thousands of windmills in England. Where are they going to go? People go apeshit if they are near their houses and most of the best sites are gone. See “Southern Uplands” for a clue.

 

[Stuart France]

I'm sorry, but going on about windmills is to ignore the substantive issue here which concerns litigation by a relatively recent land buyer to extinguish established public rights to carry out outdoors recreation in its widest sense in one of Britain's best remaining wild places, the legal defence of the National Park Authority and the Open Spaces Society to the action, and the "open air" connection between all this and what caving has experienced at the hands of Defra and NRW.

I cannot see any connection at all between the value of land, wind farm developments, and the likely return of the Labour Party to power later this year, NIMBYs going ape****, when the subject matter of this thread is the public right of access for recreation. Let's get back on topic please.

 

[Fjell]

From the very beginning this it has been completely pointless trying to extend the right to walk on high ground to going underground. It’s semantics. Unlike in Scotland where it was in legislation, along with many other activities not permitted in England. You need to change the Act. It might happen, but only after a bunch of consultation with interested parties. It’s completely unreasonable to do otherwise. People like DEFRA are masters at giving you the run around, it’s their area of expertise.

 

[mikem]

- camping overnight in a place which is not a dedicated campsite falls within the definition of “open-air recreation” … in my opinion it plainly does… It is a perfectly natural use of language to describe that as a recreation, and also as occurring in the open air, notwithstanding that while the camper is actually in the tent the outside air will be to some extent excluded.

If it was then campers would suffocate

 

[Fjell]

I once had to some serious negotiation with the DTI. Believe me, the higher grade civil servants can block anything without political support.

 

[Stuart France]

along with many other activities not permitted in England. You need to change the Act.

This is not about extending 'upland' rights, nor is caving on the list of unpermitted activities. The right to go caving on Access Land etc already exists albeit in expressed in general terms in the same way as hillwalking is. There is no specific grant of access in law for specifically going walking for recreation at any altitude. In the case of CROW and Dartmoor it is encompassed by the general purpose phrase "open-air recreation" which has been used in all legislation since 1937. Before that year the legislative term was "air and exercise" - not "open air" take note.

The Dartmoor Court of Appeal case revolved around "how general is general". The CA judges all agreed the present law is general enough to include sleeping in a tent and they went on to say that legislative turns of phrase need interpreting in a broad and very general way (or words to that effect) rather than taken completely literally to suit a private agenda - which is what Defra and NRW and the Dartmoor litigant seem to me to have been doing.

The Supreme Court appeal, I think, is more likely to focus on technicalities like whether courts even have the faculty to decide what legislation cast in general terms actually means, or whether litigants have the right to examine the extent to which Parliament revealed the scope of the general terms that it used in final legislation during the debates which preceded them. The answer to "can courts decide things" is obviously yes otherwise no dispute can ever be finally resolved: party X can argue one thing and party Y can argue another until the cows come home and there is no prospect of a clear outcome if the courts decide that the courts lack a power of decision, assuming the courts have the faculty to decide they cannot decide certain things!

So one way or another, we are going to get told by the SC in due course what "open-air recreation" means, whether you or any of us like that or not, and I can be fairly sure that their judgment will make no mention of any wind mills.

 

[Fjell]

My point some time ago was that BCA needed to get with larger organisations to lobby politicians for better access. Probably Labour ones. How’s that going? I would rate that as having orders of magnitude more chance of making a difference. The quangocrats need new marching orders.

 

[Flotsam]

A bit more on the technicalities of what can't be done on common land.
Nothing can be done to common land which does not benefit the land. Under current legislation it would be illegal to install wind turbines or infrastructure. Would Labour change that? Incidentally, parking on common land without the owners permission is illegal.

 

[Fjell]

The Yorkshire Dales gots it’s western boundary extended to try and prevent more wind farms being built there. There is not much stopping it happening. If the Tories hadn’t gone cold on it I think we have a lot more around the Dales and Lakes. Parliament can do anything it likes. And probably will to try and Save the Planet etc.

I am getting very averse to judicial activism, it normalises the subversion of democracy. This is what did for the Roman republic and it’s even worse in the US. In the UK the fox-killing kimono wearer has given it a very bad rep.

 

[Flotsam]

The Yorkshire Dales gots it’s western boundary extended to try and prevent more wind farms being built there. There is not much stopping it happening. If the Tories hadn’t gone cold on it I think we have a lot more around the Dales and Lakes. Parliament can do anything it likes. And probably will to try and Save the Planet etc.

I am getting very averse to judicial activism, it normalises the subversion of democracy. This is what did for the Roman republic and it’s even worse in the US. In the UK the fox-killing kimono wearer has given it a very bad rep.

Is the Yorkshire Dales National Park or part of registered Common land? Obviously its status is protected as a national park under the jurisdiction of the park authority however I don't believe it to be a common with the enhanced protection that offers. Parts of Dartmoor are common land but I don't know if the dispute involves that part.

 

[mikem]

Northern Dales is quite common:

Natural England Open Data Geoportal

This is Natural England's platform for sharing geospatial data and web services. Natural England is the government’s adviser for the natural environment in England. We help to protect and restore our natural world and for people to enjoy.

naturalengland-defra.opendata.arcgis.com

 

[Stuart France]

Incidentally, parking on common land without the owners permission is illegal.

No it isn't. See Road Traffic Act 1988 Section 34 (3).

 

[Babyhagrid]

No it isn't. See Road Traffic Act 1988 Section 34 (3).

(within fifteen yards of a road, being a road on which a motor vehicle may lawfully be driven)
https://www.legislation.gov.uk/ukpga/1988/52/section/34

I imagine a lot of common land lies over 15 yards away from a road?

 

[Graigwen]

Am I right in thinking that while Section 34 (3) RTA 1988 makes parking on common land within 15 yards of a road not a criminal offence, Subsection 5 stresses S.34 does not "confers a right to park a vehicle on any land." so a civil remedy is still available for unauthorized parking within 15 yards of a road?
.

 

[Stuart France]

Am I right in thinking that while Section 34 (3) RTA 1988 makes parking on common land within 15 yards of a road not a criminal offence, Subsection 5 stresses S.34 does not "confers a right to park a vehicle on any land." so a civil remedy is still available for unauthorized parking within 15 yards of a road?
.

What it means is that parking for the purpose of parking within 15 yards of a highway is not an offence, not something the police can engage with. The fact your parking in and of itself is not an offence doesn't over-ride other legislation, for example the right to camp (as in the case of Dartmoor) or absence of a right to camp (as in the case of CROW and LPA designated land).

In the case of Dartmoor, the local bylaws prohibit informal camping within 100 yards of a road. So there it means:
(a) you can park by the roadside and by implication do what is a reasonable motivation for parking there like admire the view, eat a sandwich, go for a walk...
(b) you can camp on Dartmoor (subject to the current SC case outcome) but only at least 100 yards away from the road
(c) you can't camp at the roadside on Dartmoor (to park up and then use a campervan for overnight camping there for example).

As to trespass, a landowner would have to convince the court that s/he'd incurred a financial loss or was suffering an intolerable nuisance and the remedy would be seeking compensation or an injunction against the trespassers concerned. No court is going to react to casual non-harmful countryside parking with a compensation award or injunct the motorists concerned.

... unless you know differently.