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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Darwall & Anor v Dartmoor National Park Authority [2023] EWCA Civ 927 (31 July 2023) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2023/927.html Cite as: [2023] WLR(D) 338, [2024] Ch 107, [2024] 2 WLR 397, [2023] EWCA Civ 927 |
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Case No: PT-2022-000194 |
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST
Sir Julian Flaux, Chancellor of the High Court
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE UNDERHILL,
Vice President of the Court of Appeal (Civil Division)
and
LORD JUSTICE NEWEY
____________________
ALEXANDER DARWALL DIANA DARWALL |
Claimants/Respondents |
|
- and - |
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DARTMOOR NATIONAL PARK AUTHORITY |
Defendant/Appellant |
|
- and - |
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OPEN SPACES SOCIETY |
Intervener |
____________________
Timothy Morshead KC (instructed by Irwin Mitchell LLP) for the respondent/claimant (the landowners)
Richard Honey KC, Ned Westaway, and Stephanie Bruce-Smith for the Open Spaces Society (the Open Spaces Society)
Hearing date: 18 July 2023
____________________
Crown Copyright ©
SIR GEOFFREY VOS, MASTER OF THE ROLLS:
The relevant statutory history
The Law of Property Act 1925 (the 1925 Act)
193. - Rights of the public over commons and waste lands.
(1) Members of the public shall, subject as hereinafter provided, have rights of access for air and exercise to any land which is a metropolitan common within the meaning of the Metropolitan Commons Acts, 1866 to 1898, … in manner hereinafter provided:
Provided that –
(a) such rights of access shall be subject to any Act, scheme, or provisional order for the regulation of the land, and to any byelaw, regulation or order made thereunder or under any other statutory authority; and
(b) the Minister shall, on the application of any person entitled as lord of the manor or otherwise to the soil of the land, or entitled to any commonable rights affecting the land, impose such limitations on and conditions as to the exercise of the rights of access or as to the extent of the land to be affected as, in the opinion of the Minister, are necessary or desirable for preventing any estate, right or interest of a profitable or beneficial nature in, over, or affecting the land from being injuriously affected …; and
(c) such rights of access shall not include any right to draw or drive upon the land a carriage, cart, caravan, truck, or other vehicle, or to camp or light any fire thereon; … [underlining added].
The National Parks and Access to the Countryside Act 1949 (the 1949 Act)
Section 5 – National Parks.
(1) The provisions of this Part of this Act shall have effect for the purpose–
(a) of conserving and enhancing the natural beauty, wildlife and cultural heritage of the areas specified in the next following subsection; and
(b) of promoting opportunities for the understanding and enjoyment of the special qualities of those areas by the public.
(2) The said areas are those extensive tracts of country in England ... as to which it appears to Natural England that by reason of —
(a) their natural beauty, and
(b) the opportunities they afford for open-air recreation, having regard both to their character and to their position in relation to centres of population,
it is especially desirable that the necessary measures shall be taken for the purposes mentioned in the last foregoing subsection.
Section 12 – Provision of accommodation, meals, refreshments, camping sites and parking places
(1) A local planning authority whose area consists of or includes the whole or any part of a National Park may make arrangements for securing the provision for their area (whether by the authority or by other persons)–
(a) of accommodation, meals and refreshments …;
(b) or camping sites; and
(c) of parking places and means of access thereto and egress therefrom,
and may for the purposes of such arrangements erect such buildings and carry out such work as may appear to them to be necessary or expedient …. [Underlining added].
Section 59.— Provision for public access to open country.
(1) The provisions of this Part of this Act shall have effect for enabling the public to have access for open-air recreation to open country—
(a) to which the provisions of the next following section are applied by an agreement under this Part of this Act (hereinafter referred to as an "access agreement") or by an order under this Part of this Act (hereinafter referred to as an "access order"),
(b) acquired under this Part of this Act for the purpose of giving to the public access thereto.
(2) In this Part of this Act the expression "open country" means any area appearing to the authority with whom an access agreement is made or to the authority by whom an access order is made or by whom the area is acquired, as the case may be, to consist wholly or predominantly of mountain, moor, heath, down, cliff or foreshore (including any bank, barrier, dune, beach, flat or other land adjacent to the foreshore).
Section 60 – Rights of public where access agreement, order in force.
(1) Subject to the following provisions of this Part of this Act, where an access agreement or order is in force as respects any land a person who enters upon land comprised in the agreement or order for the purpose of open-air recreation without breaking or damaging any wall, fence, hedge or gate, or who is on such land for that purpose after having so entered thereon, shall not be treated as a trespasser on that land or incur any other liability by reason only of so entering or being on the land:
Provided that this subsection shall not apply to land which for the time being is excepted land as hereinafter defined.
(2) Nothing in the provisions of the last foregoing subsection shall entitle a person to enter or be on any land, or to do anything thereon, in contravention of any prohibition contained in or having effect under any enactment.
(3) An access agreement or order may specify or provide for imposing restrictions subject to which persons may enter or be upon land by virtue of subsection (1) of this section, including in particular, but without prejudice to the generality of this subsection, restrictions excluding the land or any part thereof at particular times from the operation of the said subsection (1); and that subsection shall not apply to any person entering or being on the land in contravention of any such restriction or failing to comply therewith while he is on the land.
(4) Without prejudice to the provisions of the last foregoing subsection, subsection (1) of this section shall have effect subject to the provisions of the Second Schedule to this Act as to the general restrictions to be observed by persons having access to land by virtue of the said subsection (1). [Underlining added]
[section 60(1)] shall not apply to a person who, in or upon the land in question, —
(a) drives or rides any vehicle;
(b) lights any fire …;
(c) takes, or allows to enter or remain, any dog not under proper control;
(d) wilfully kills … or disturbs any animal … or takes … any eggs …;
(e) bathes in any non-tidal water in contravention of a notice …;
(f) engages in any operations of … hunting, shooting, fishing, …;
(g) wilfully damages the land or anything thereon or therein;
(h) wilfully injuries, removes or destroys any plant, shrub, tree …;
(i) obstructs the flow of any drain or watercourse …;
(j) affixes or writes any advertisement, bill, placard or notice;
(k) deposits any rubbish or leaves any litter;
(l) engages in riotous, disorderly or indecent conduct;
(m) wantonly disturbs, annoys or obstructs any person engaged in any lawful occupation;
(n) holds any political meeting or delivers any political address; or
(o) hinders or obstructs any person interested in the land, or any person acting under his authority, in the exercise of any right or power vested in him.
The 1985 Act (the Dartmoor Commons Act 1985)
(1) Subject to the provisions of this Act and compliance with all rules, regulations or byelaws relating to the commons and for the time being in force, the public shall have a right of access to the commons on foot and on horseback for the purpose of open-air recreation; and a person who enters on the commons for that purpose without breaking or damaging any wall, fence, hedge gate or other thing, or who is on the commons for that purpose having so entered, shall not be treated as a trespasser on the commons or incur any other liability by reason only of so entering or being on the commons. …
(3) (a) The provisions of … [the 1949 Act] and Schedule 2 to that Act (which relate to land excepted from any access agreement or access order, the effect of such an agreement or order on rights and liabilities of owners and maps) shall apply and have effect with respect to subsection (1) above and the exercise of the right afforded under that subsection, as those provisions apply and have effect with respect to section 60(1) of that Act and any access agreement or order. … [Underlining added]
(1) The powers of the Park Authority to make byelaws and to appoint wardens under sections 90 and 92 of the Act of 1949 shall apply to the whole area of the commons to which under section 10(1) of this Act a right of access is given or such part thereof as may be specified in the byelaws as if the commons were land comprised in an access agreement in force under Part V of that Act.
The Byelaws
1. No person shall knowingly use any vehicle, including a caravan or any structure other than a tent for the purpose of camping on the access land or land set out for the use or parking of vehicles except on any area which may be set apart and indicated by notice as a place where such camping is permitted.
2. No person shall knowingly erect a tent on the access land for the purpose of camping: (a) in any area listed in Schedule 2 to these byelaws; (b)within 100 metres of any public road or in any enclosure.
3. No person shall camp in a tent on the same site on the access land for more than two consecutive nights, except on any area which may be set apart and indicated by notice as a place where such camping is permitted. [Underlining added]
The Malvern Hills Act 1995 and the byelaws made thereunder
The Countryside and Rights of Way Act 2000 (the 2000 Act)
The factual background
The Chancellor's judgment
16. The correct approach to statutory interpretation has recently been authoritatively stated by Lord Hodge DPSC in R (Project for the Registration of Children as British Citizens) v. Secretary of State for the Home Department [2022] UKSC 3; [2022] 2 WLR 343 [Project] at [29] to [31] as summarised by Lord Stephens JSC at [13] of R (Coughlan) v. Minister for the Cabinet Office [2022] UKSC 11; [2022] 1 WLR 2389 [Coughlan]:
"In [Project], Lord Hodge DPSC in his leading judgment, with which all in the majority concurred, reiterated, at para 29, that the primary source by which meaning is ascertained is by way of conducting an analysis of the language used by Parliament. Lord Hodge DPSC stated, at para 31, that "Statutory interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered." Lord Hodge DPSC also stated, at para 30, that external aids to interpretation therefore must play a secondary role. He continued by stating:
"Other sources, such as Law Commission reports, reports of Royal Commissions and advisory committees, and Government White Papers may disclose the background to a statute and assist the court to identify not only the mischief which it addresses but also the purpose of the legislation, thereby assisting a purposive interpretation of a particular statutory provision. The context disclosed by such materials is relevant to assist the court to ascertain the meaning of the statute, whether or not there is ambiguity and uncertainty, and indeed may reveal ambiguity or uncertainty: Bennion, Bailey and Norbury on Statutory Interpretation , 8th ed (2020), para 11.2. But none of these external aids displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity.""
17. Lord Stephens went on at [14] to reiterate, by reference to the speech of Lord Browne-Wilkinson in [Pepper v. Hart], the circumstances in which reliance can be placed on statements made in Parliament by ministers or promoters of Bills in construing the eventual legislation:
"However, such references are not a legitimate aid to statutory interpretation unless the three critical conditions set out by Lord Browne-Wilkinson in [Pepper v. Hart at] 640 are met. The three critical conditions are (i) that the legislative provision must be ambiguous, obscure or, on a conventional interpretation, lead to absurdity; (ii) that the material must be or include one or more statements by a minister or other promoter of the Bill; and (iii) the statement must be clear and unequivocal on the point of interpretation which the court is considering."
18. Where there is doubt as to the way in which to interpret the language used in what Buckley LJ in Methuen-Campbell v Walters [1979] 1 QB 525 [Methuen-Campbell] termed a "dispropriatory" Act (there the Leasehold Reform Act 1967), it is to be construed in favour of the party who is to be dispropriated: see p 542. In Bennion at [27.6] pp 857-8, the principle is stated thus:
"Even in cases where some degree of interference with a person's proprietary rights is clearly intended, legislation will be construed as interfering with those rights no more than the statutory language and purpose require … Perhaps the most severe interference with property rights is expropriation, where the courts are particularly likely to impose a strict construction. … The principle against expropriation or other interference with the enjoyment of property rights is likely to carry particular weight in cases where no compensation is payable."
39. The third aspect of the context was the reports and debates which led to the 1949 Act. Two reports of committees under the chairmanship of Sir Arthur Hobhouse were described by the responsible minister Lewis Silkin MP as having had a "very great influence" on the proposed measures which became the 1949 Act and said the Government had "accepted them as to some 90 per cent". As Mr Morshead KC said, this may have been an exaggeration because the most radical proposal of the Hobhouse reports was to give a public right to roam on open land, but this was rejected in favour of the scheme of access agreements contained in the 1949 Act. The first report was that of the National Parks Committee of July 1947. There were numerous references to camping but always on the basis that it would be regulated and indeed a fee would be payable. Consistently with that, the report does not include camping in the list of sports and recreation and other activities in which it was envisaged the public would take part.
40. The second report was the Report of the Special Committee on Footpaths and Access to the Countryside of September 1947. This advocated conferring on the public a general right of access to open land, but Mr Morshead KC pointed out that nowhere does the report suggest that this right, if conferred, would include a right to camp. As he said, in the conclusion, the aspiration was expressed in terms of conferring on the public a right to "wander harmlessly over moor and mountain, over heath and down, and along cliffs and shores, and to discover for themselves the wild and lonely places, and the solace and inspiration they can give to men who have been 'long in the city pent'".
… it is clear from the submissions and evidence put forward by [the Authority] (or its predecessor) in promoting the 1980 Bill [which seems to have failed on the evidence before us because it did not allow for access on horseback], that the mischief which it was seeking to address was, amongst other things, such unauthorised or unregulated sites and the pressure and harm they caused, which needed to be regulated and controlled. However, as is clear from the materials cited at [55] to [57] above, what was seen by the promoters as requiring regulation and control if the public was now to have a legal right of access to the land was what might be described as mass camping: caravans, dormobiles and large brightly coloured tents on unlicensed campsites. Wild camping by backpackers was not seen as a problem which needed to be addressed by such regulation or control. It follows that, even if [the Authority] were right that landowner's consent in relation to mass camping was to be replaced by [the Authority] control through byelaws, that is of no relevance to wild camping, which was not regarded as part of the mischief which the statute was seeking to address and was not intended to be the subject of control by byelaws. Indeed, it is striking in that context that [the Byelaw] eventually passed in 1989, byelaw 6 …, does not address wild camping as such.
It is true that the recreation in which the member of the public might engage when on the land the subject of an access agreement (in the case of the 1949 Act) or the [Dartmoor] Commons (in the case of the 1985 Act) could include other activities in addition to walking or horse riding. These could include having a picnic, walking a dog or observing wildlife, all of which can clearly be said to be ancillary to the right to roam. The first Hobhouse Committee report also identified a number of recreational activities such as motoring and cycling (essentially not permitted on the [Dartmoor] Commons by virtue of [Byelaw] 3) fishing and rock climbing (both of which do take place on Dartmoor but it is unclear whether they take place on the Commons). It is noticeable that the recreational activities identified in the report do not include camping, which the report contemplated would be regulated and even that a fee would be payable.
If necessary, I would have concluded that there would be sufficient interference with the claimants' property rights without compensation if [the Authority's] construction were correct, so that the statute should not be construed in that way unless it clearly had that effect, which for the reasons I have given, it does not.
Discussion
the public shall have a right of access to the commons on foot and on horseback for the purpose of open-air recreation; and a person who enters on the commons for that purpose without breaking or damaging any wall, fence, hedge, gate or other thing, or who is on the commons for that purpose having so entered, shall not be treated as a trespasser on the commons or incur any other liability by reason only of so entering or being on the commons.
It would, in my opinion, be wrong to disregard the fact that, while the [Leasehold Reform, Housing and Urban Development Act 1993] may to some extent be regarded as expropriatory of the landlord's interest, nevertheless it was passed for the benefit of tenants. It is the duty of the court to construe the 1993 Act fairly and with a view, if possible, to making it effective to confer on tenants those advantages which Parliament must have intended them to enjoy.
Conclusions
Lord Justice Underhill:
(a) restrictions in the Act itself, which include the general prohibitions in Schedule 2 to the 1949 Act, incorporated by section 10 (3); and
(b) restrictions imposed by byelaws made under section 90 of the 1949 Act, incorporated by section 11, "for the preservation of order, for the prevention of damage to the land …, and for securing that persons resorting thereto will so behave themselves as to avoid undue interference with the enjoyment of the land … by other persons".
Those restrictions provide a workable structure whereby a proper balance can be preserved between the rights of those accessing the commons and the rights of the owners of the land (and others).
Lord Justice Newey:
Note 1 This decision was reported since the argument before us, but we were referred to the earlier decision in Hanlon v The Law Society [1981] AC 124. [Back]