Last week the Court of Appeal overturned a decision of the High Court in January that there was no right to wild camp on Dartmoor, the only place in England where such a right existed. The High Court judge had decided that wild camping was not a form of outdoor recreation and was therefore not included in the recreational rights conferred on the public by the Dartmoor Commons Act 1985. The three Court of Appeal judges took the opposite view, aware no doubt of the widespread protests that had followed the initial decision. They decided that wild camping is a form of outdoor recreation after all and, while their decision could still potentially be challenged in the Supreme Court, it is very welcome.
The law on wild camping in England is not so restrictive as often thought
The reporting of the Dartmoor appeal shows that there is still major confusion among the commentariat in England about the difference between access rights and access freedoms (see here).
The Guardian, for example, reported:
“Wild camping is once again allowed on Dartmoor after the national park won a successful appeal against a ruling in a case brought by a wealthy landowner.
Camping had been assumed to be allowed under the Dartmoor Commons Act since 1985, until a judge ruled otherwise in January. It was the only place in England such an activity was allowed without requiring permission from a landowner.”
This gets it completely wrong. What the appeal court judgement has done is to restore a statutory right which the High Court had removed through its interpretation of the term “open air recreation”. Contrary to what is claimed in the article, there is no law in England that says people require permission from a landowner before they can camp. While there are a few locations, such as Ministry of Defence Ranges, where there are specific laws or byelaws that prohibit or control camping (and indeed other forms of outdoor recreation) wild camping is generally a civil matter.
The High Court judge recognised this in his judgement when he stated that although the right to camp was not included in the rights bestowed by the Dartmoor Commons Act, people could “take their chances on pitching a tent without the landowner knowing”. While there is nothing in the law therefore which requires people to ask permission to camp, asking for permission from people like Mr Darwall, the hedge fund manager who brought the case, would likely be a waste of time anyway. Better just to exercise ones freedom and risk being asked to leave.
A similar situation exists over much of England. When Raynor Winn and her husband Moth became homeless and decided to walk the south west coastal path, a story she told in her best-selling book the Salt Path, they camped almost every night without asking permission from anyone. As with much land across the UK, in many cases it would be very difficult to know who to ask anyway. Despite the trepidation the couple occasionally felt, there was nothing criminal in what they did. They were exercising their freedom to camp. The feelings of trepidation they and others have felt in such circumstances comes from the uncertainty about whether one might be challenged.
While there are some landowners who may try to use the civil law of trespass to prevent people exercising their freedom to camp, many others don’t. This has resulted in what is known as an “implied consent” to camp in many places, such as the Lakeland fells. To suggest the public need to ask permission or wild camping is not allowed in such places is not just just wrong, it is effectively an attempt to erode or negate that freedom.
The confusion at the start of another well-meaning article (see here) was even worse:
“Wild camping is legal on Dartmoor once more – but the short-lived ban has given the battle for better access to the outdoors a massive boost”.
The removal of a statutory right does not create a ban, the freedom exists between the two. A few paragraphs on the article implicitly recognised this when it stated trespass “is not a criminal offence under English law”.
The existence of a freedom to camp, however, does not mean that the right to camp which was created by the Dartmoor Commons Act was unimportant. On the contrary, it prevented landowners from trying to use the law of trespass – a complex and far from simple matter – to limit that freedom and gave people a sense of security. That right was well worth fighting for.
The decision of the Appeal Court that wild camping should be considered as an outdoor recreational activity is also extremely significant politically. It puts wild camping at the centre of the debate about rights of access for purposes of outdoor recreation in England.
The law on wild camping in Scotland is weaker than is often thought
It is very positive that the Right to Roam campaign in England wants to base access rights there on the Scottish model, covering all land and water and a wide range of outdoor recreational activities including wild camping. This stance, which is attracting a wide range of support, marks a radical break with the approach taken by the disastrous Countryside and Rights of Way (CROW) Act 2000. This excluded vast swathes of England and also excluded camping (along with swimming, vessels, vehicles etc) from the activities that people had a right to enjoy on “access land”. Sadly, the Ramblers in England still appear wedded to the CROW approach and are not among the organisations supporting the right to roam campaign,, ironic given that the Ramblers in Scotland were at the forefront of the campaign for access rights here.
The Right to Roam campaign, however, need to be mindful of two weaknesses in the Scottish legislation which have served to limit access rights including the right to camp.
The first is that rights to camp are of limited use unless they are enforced. It is particularly important that signs such as that in the photo above, which misrepresent the law and suggest there is not a right to camp are removed immediately and action is taken against the landowner to prevent them harassing campers. Otherwise the general public is likely to be left with the impression that there is no right to camp in Scotland and their experience little different to what happens in England (with campers welcomed or tolerated in some places and harassed in others). The sign on Loch Morar is not an isolated issue but part of a systematic failure to enforce the right to camp which, on Loch Voil in the Loch Lomond and Trossachs National Park, goes back 20 years (see here). Scotland may in theory have world class access rights but in practice they are often little better than the freedoms which exist in England.
The second weakness is that both the Land Reform (Scotland) Act and the National Parks (Scotland) Act introduced new powers to restrict access rights through the use of byelaws. If, following the Dartmoor judgement in the High Court, a person had gone to camp on the Darwalls’ land, the worst that could happen is they could have been asked to leave. If that same person, however, were to camp in one of the Loch Lomond and Trossachs National Park camping management zones without a permit, they would be committing a criminal offence.
Moreover, the risk of being caught in the Loch Lomond and Trossachs National Park is far higher as they have by far the largest ranger service in Scotland and for the last ten year its main focus has been on policing campers. The power of the state to prevent people from camping is far greater than any private landowner because it can both create laws which ban the activity and the deploy the resources necessary to enforce them. Balquhidder provides a perfect example. Private landowners may have put up no camping signs over twenty years ago but if people exercised their freedom in practice there was little the landowners could do. The camping byelaws along have made it far harder to camp on Loch Voil than it was prior to the Land Reform (Scotland) Act.
What Scotland could learn from England
Following the High Court judgement on Dartmoor, the Right to Roam campaign responded by organising demonstrations, crowd funding to take the case to the court of appeal and significant political lobbying which prompted the Labour Party to say it supported extending the right to roam. Contrast that with the position in Scotland where even the most outrageous signs which deny the existence of access rights have no political consequences and court cases, such as the Drumlean judgement (see here), are lucky to attract a single observer let alone a demonstration.
The lesson from England is that until those who care about access rights start to campaign again, the long-standing failure of our access authorities to protect those rights effectively will continue, as will the introduction of new measures designed to restrict access. Its time to consider creating a right to roam campaign in Scotland that brings together activists and the recreational organisations that represent the public that was dedicated to protecting our access rights and ensuring they are enforced.
A major barrier to bringing people together is the hard line attitude of organisations like the Ramblers to other countryside users. Their opposition to the 4×4 community was instrumental in the law changes which decimated access to green lanes in England (which similarly never really existed in Scotland). Likewise the attitude to campervans as often displayed in the comments to this blog is unlikely to encourage them to engage with any campaign. No doubt this will prompt anecdotal tales of bad behaviour from members of these groups as if walkers are all paragons of virtue who never put a foot wrong which is far from the case. Our masters of course love this as it helps them “divide and rule”.
4×4 and other vehicles seem to have a vast national road network. The countryside should be explored by non-motorised modes of transport and will be much more peaceful for it.
Not at all the same thing and we are talking about a tiny fraction of the off road network, but that wasn’t good enough for the extremists who did not want to share any part of it. Most of the path network is not physically accessible to vehicles of any kind fortunately including cycles who are a far more plentiful and widespread threat to a peaceful walk.
What law changes decimated access to ‘green lanes’ ? There hasn’t been any such law change, off roaders can use byways open to all traffic just as they always have, the clues in the name.
Hundreds of Green Lanes have been closed to motor vehicles in the last 20 years, mostly as a result of nimbyism, because I can councils and holier than thou ramblers and horseriders. 95% of off road enthusiasts are sensible, responsible and put an effort into maintaining by ways for the prolonged future of the lanes, not something you see the afore mentioned spending any time doing.
BOATs are the remnants that they couldn’t close. Amazing that someone can claim this didn’t happen. Thousands of miles were redesignated to remove historic vehicular rights.
The methods used were the same as used to justify the LLTPA camping byelaws – isolated incidents exaggerated and claimed to be everyday occurrences and continually recycled old photos of surface damage clearly caused by farm machinery.
But this sign seems to have been posted by the Highland Council Ranger Service. If it’s genuine, they should be able to explain – and there is a real issue in the Morar area due to damage to the fragile ecosystem. But there should be an explanation. Of course it’s always possible that someone has acquired some blank notices.
I was planning to camp by Loch Morar next Spring. Does anyone know where this sign is? I wasn’t aware of any issues in the area – are there honey spots causing problems or something like that?
Thanks,
Gary, you have a right to camp, leave no trace and enjoy it! An encampment, ie staying in the same place for a few days is a different matter. And if there is some specific reason why camping might do damage – eg there is a very rare flower or whatever – the right thing to do under SOAC is for the landowner to say this and point out alternatives not claim that people require permission to camp
Having once taught the SOAC to many a DoE participant, I find the main issue is its wooly wordiness, hence the endless issue with ‘wild campervanning’ which as repeatedly mentioned isn’t allowed, as wildcamping is defined as individual tents pitched for no more than 2-3 nights, and not near property or in working land. I suggest the SG go back and reword the code, and put more investment into stopover sites for campervans and low cost sustainable sites for campers who don’t want to go fully wild. They should be pressuring NC500 Ltd and landowners like Anders Polsvon to fund a network of low cost stayovers instead of turning Scotland into a UAE of Europe with people helicoptering in for breakfast and £100 a night airbnbs.
Hi Sarah, the Land Reform Act does not cover motorised access, hence why SOAC does not deal with campervanning or caravans for that matter. Parking of vehicles is covered by other laws, it is allowed – there is an important right to pull a vehicle off a public road – but there are also laws against encampments by vehicles which could prevent people staying more than a couple of nights. None of this is to say either than a Scottish code for campervanning might not be helpful, nor that more official pull off points with facilities would help reduce impacts but I think we should defend these rights have people to stop overnight by the road, whether in a campervan or a tent.
This is exactly the point, motorised access was not included in SOAC because certain groups fought tooth and nail to make sure it was not, for purely ideological reasons. They frequently pop up now berating anyone who dares to suggest that “wild camping” is anything beyond their arbitrary definition.
There are huge areas of publicly owned land accessed by forestry tracks which are essentially unused between planting and harvesting which could be opened up to suitable vehicles for “distributed camping” under the US model which would alleviate the current pressure on the very limited areas available and would have virtually no impact on anyone as they would be largely out of sight. This is anathema to the zealots for whom the mere sight of a motor vehicle sends them into a rage.
Has this been reported to the local authority access officers, and if so, what has their response been?
I understand it has been reported, not aware of response
There is a more practical approach in Scotland. Such signs are generally ignored. Where fences are involved, they would be climbed over or torn down. But, yes, there definitely needs to be more enforcement action taken in Scotland to deter the landowners (mostly foreigners) from chancing their arm
With reference to roads for public use. Definitive lists exist within local authorities who use the for maintenance reference purposes . These lists set out the standard grading of all public and adopted roads. They show quality status class A, B, C, D . Some of these lists exist online and can be searched for – Borders regional council, a case in point.
What proves remarkable, if anyone were to test the point with a direct question to any individual Land Owner (who will invariably attempt denial) is that hereditary rights of way for public wheeled traffic cannot terminate unless individually addressed through costly appeal via the planning process. Even where a real road no longer can be discerned on the ground, and may appear on historical maps to lie within someone’s garden ground(!), some class C and D historical roads in Scotland do still run straight across farm yards and through house curtilage. They exist right across what might easily be considered as ‘private’ hill land. Those not in the know might be surprised how many a forgotten public track/right of way for wheeled traffic are still defined in any council’s “covert” lists, acknowledged as public roads. Roads ran at public expense between old farmsteads, water works and through public fords all across the Scottish borders.
There continues to be a problem with the term “wild camping” because it can cover anything from a backpacker 50miles from the nearest road and a frame tent on an island in Loch Lomond supported by a gin palace full of gin.
The term “Wild Camping” should be reserved for camping in wild areas without vehicle support i.e. at least 500m from a vehicle (road or water).
The problem is the almost total absence of low amenity camp sites for motor-based camping. The campervan site at Nevis Range is an example of what we should be developing. The LLTNP promised such a network and has almost completely failed. The nearest they have got is keeping the toilets open in some spots for motor caravans. It is the sort of major gap that is totally ignored in the latest Partnership Plan.
If a “camper” is able, without effort, to get to a low amenity campsite then, in my view, to minimise the side effects of noise, litter and sewage, they should be expected to go there. This includes those camping on the islands of the Loch, which have a major litter problem. Again, litter problems are almost totally ignored in the Partnership Plan in favour of the climate change problem they can do nothing about.
No, as was proposed when SOAC was being drafted, the term should include and define use by motor vehicles. There is no reason why noise, litter and sewage would be confined to vehicle based camping, these are existing offences which only require to be enforced by the body responsible for law enforcement. In fact campervans almost invariably include a means of retaining sewage for several days allowing it to be disposed of to a treatment facility, if formally included in SOAC this could be a requirement. This is of course not the case for tent campers which raises the question of what they do? In some US areas they are required to “pack it out”, fortunately not a requirement in Scotland (Yet!).
One of the other articles on this blog had a photo of a discarded can in a remote lochan which is unlikely to be due to vehicle camping, we have all found rubbish in such places inaccessible to motor vehicles.
Low amenity camp sites has turned into charging upwards of £10 a night for parking in the same places that used to be free, in return for no facilities whatsoever. In practice that money is not then spent in local businesses but goes into some nebulous “community fund” controlled by a usually self selected group. In some parts of the UK (not Scotland) you can get a proper camping pitch for that, I know, I’ve just spent a fortnight doing just that.