
The uniquely expansive public right of responsible access provisions in Scotland (commonly referred to as the “right to roam”) remain an integral part of enjoyment of Scottish landscapes. The Land Reform (Scotland) Act 2003 allows everyone in Scotland to enjoy access to most land and inland water in Scotland, subject to specific exclusions, such as private homes and gardens. You can find a detailed guide on the right to roam in Scotland, and the public’s rights and responsibilities here.
South of the border, there is no equivalent right as is afforded to the public in Scotland. This has long been a point of contention between policymakers, the courts, and right to roam advocates in England.
Central to the discussion in England was the case of Darwall v Dartmoor National Park Authority, which provided a key assessment of the public rights of access and considered statutory limitations to the right. In 2022, the High Court considered whether the legal provisions that permitted a public right of access “on foot or on horseback” for “the purposes of open-air recreation”, set out in Section 10(1) of the Dartmoor Commons Act 1985 (“1985 Act”), included the right to wild camp. Initially, the High Court excluded camping from their definition of “recreation,” finding in favour of the landowners, Alexander and Diana Darwall. However, the decision was overturned on an appeal by the Dartmoor National Park Authority, to the Court of Appeal in 2023, who interpreted the phrase “open air recreation” as including the right to camp. A detailed analysis of the High Court and Court of Appeal decisions can be found here.
The case has since progressed, with the Darwalls taking their appeal to the Supreme Court earlier this year. The Supreme Court focused their judgment on their interpretation of the 1985 Act, but also considered the provisions of the National Parks and Access to the Countryside Act 1949 (“1949 Act”) which regulates the Dartmoor Commons. Importantly, while the 1949 Act fails to include camping as part of its specific restrictions on activities in National Parks, it does include provisions for regulating camping (i.e., prohibiting camping in tents for more than two nights in one place). With Dartmoor falling under the Act, as a National Park itself, the Supreme Court, led by Lord Stephens and Lord Stales, upheld the decision of the Court of Appeal, reaffirming a public right to wild camp in the park.
The Supreme Court also considered the intention behind the 1985 Act, noting that access by the public for recreational purposes was at the heart of its creation. It was highlighted that limiting public access to Dartmoor Commons by excluding wild camping would go against the intentions of the Act itself.
For the Darwalls, this decision allows the public to camp on their land without their permission, something they have fought since 2022 to prevent. The landowners have stressed their concerns over the protection of the natural environment at Dartmoor, however, it is clear that the key consideration for the Court was not their concerns relating to the land, but the proper interpretation of the legislation already governing the land.
Conversely, campaigners have hailed the Supreme Court decision, but argue that the Courts are still not doing enough, since Dartmoor is the only place south of the Scottish border where the public has a legally confirmed right to wild camp.
On this occasion the interpretation of the 1985 Act was broad, and highlighted the possibility for public access rights to cover a range of activities, limiting the powers of landowners to refuse consent. On the face of it, it seems that the decision to retain public camping rights at Dartmoor could bring the English right closer to Scotland, but it remains incomparable to that of its Northern neighbour. Though not widening the scope of public access rights past its own boundaries, it is possible that the Dartmoor case will heighten discussions regarding new legislation in England and Wales, to bring it closer to Scotland.
For more information on the right of responsible access in Scotland please get in touch with a member of our dedicated Rural Disputes team, or find out more information here.
This article was co-authored by trainee Emma Brown.