The right to roam is a fundamental aspect of outdoor recreation, allowing individuals to freely explore and enjoy the natural environment. However, while both Scotland and England boast beautiful scenery, they have each taken a different approach to the public’s access to this landscape.
The Scottish position
Scotland’s right to roam (more correctly described as the public right of responsible access) is renowned for its progressive stance on access to the outdoors, set out in the Land Reform (Scotland) Act 2003. This legislation allows everyone access to most land and inland water in Scotland for recreational and other purposes, including walking, cycling and wild camping. This extends to private land, so long as the access is taken responsibly. We have written a detailed guide on the right to roam in Scotland, and the public’s rights and responsibilities here.
The English position
In contrast, England does not have a universal right to roam similar to that embodied in the Land Reform (Scotland) Act 2003. Instead, it operates under a mixture of public rights of way such as footpaths and bridleways, and the Countryside and Rights of Way Act 2000 which provides a limited right over areas designated as “access land”. Members of the public can access by foot only, for the purposes of “open-air recreation”, provided that they do so without damaging any walls, fences, gates, stiles or hedges. Unlike Scotland, England’s approach does not grant individuals access to privately owned land as a general right. Permission must be sought from landowners before venturing onto their property which limits access to large parts of the English countryside.
There has been growing political pressure to expand the right to roam in England, through various campaign groups and it is likely land reform in England will feature on the political agenda at the next general election. It is believed that the Dartmoor Commons is the only place in England where wild camping can take place without the permission of the landowner.
Darwall v Dartmoor National Park Authority
The limits on public rights of access in England were most recently shown in the case of Darwall v Dartmoor National Park Authority which considered whether wild camping was allowed on Dartmoor Commons. The key question was whether the legal provisions that permitted a public right of access “on foot or on horseback” for “the purposes of open-air recreation” included the right to wild camp. It was ultimately decided that camping could not be defined as “recreation”, as it was an activity ancillary to recreational activities such as hiking. Our previous article provides a more detailed summary of the background to the dispute.
The appeal
In a judgement published on 31st July 2023, the Court of Appeal unanimously held that the interpretation of the phrase “open air recreation” did include the right to camp.
The Darwalls argued that “sleeping” is not a recreational activity and objected to the erection of “structures” on the land.
The Park Authority said regard must be given to the previous legislation governing rights of access in England, as well as a “common understanding” that wild camping is allowed on the Dartmoor Commons.
It was ultimately held that there was no difference between an individual who accessed the land to take a walk and after lay down to rest and fell asleep on the ground, and a walker who erected a tent after a hike. The structure argument was also dismissed, with the judges querying where the line should be drawn in that circumstance.
Therefore, open-air recreation was held to mean “an activity or pastime pursued, especially habitually, for the pleasure or interest it gives”. This included wild camping, as it was said that “it was a perfectly natural use of the language to describe [wild camping] as 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.
As long as the people exercising their rights do so on foot or on horseback only, and abide by the various restrictions contained in the relevant statutesand byelaws (such as not damaging the land, littering, or lighting fires), they are permitted to camp as part of that. The simple fact that the tent is closed does not suddenly change an activity from being “open-air recreation” to not being so.
Conclusion
There is a lot of political and legal discussion around the Darwall case in England, which has attracted the attention of campaign groups seeking to widen access rights in England. Despite this win, the Dartmoor Commons remain the only area in England where wild camping is permitted, and campaigners for access rights in England still have a long road ahead. Whether this judgement will lead to any sort of reform remains to be seen, and the law around the right to roam and wild camping in England remain decidedly narrower than that in Scotland.
For more information please contact Stephanie Hepburn, partner in our rural disputes team.
This article was co-authored by, Chloe Imrie, Trainee, Dispute Resolution and Litigation.