BCA 'referendum' on CRoW

[jasonbirder]

Not what he told me (~1974)

Glad you had some current and relevant examples

 

[Alex]

I thought giants was a parking fee, not an access fee. So if you parked half a mile away no fee would be administered. Same with Alum pot.

 

[Bottlebank]

I thought giants was a parking fee, not an access fee. So if you parked half a mile away no fee would be administered. Same with Alum pot.

Giants is a trespass fee, so payable regardless. I think the same is true of Alum but not sure, so far as I know it's a courtesy fee for want of a better description.

 

[Chocolate fireguard]

I've heard anecdotal tales of people doing the connection...going back out...no problems (How would the Landowner know)

They did, yes, sometimes with a party down Giant's to rig Geology pot for them.

I assume you mean Garlands.

 

[ah147]

I've heard anecdotal tales of people doing the connection...going back out...no problems (How would the Landowner know)

They did, yes, sometimes with a party down Giant's to rig Geology pot for them.

I assume you mean Garlands.

The original trip didn't actually come out Giants, but went oxlow to east canal and back out Oxlow...

How the hell am I remembering this?


Sent from my iPhone using Tapatalk

 

[graham]

I've heard anecdotal tales of people doing the connection...going back out...no problems (How would the Landowner know)

They did, yes, sometimes with a party down Giant's to rig Geology pot for them.

I assume you mean Garlands.

Nope, I meant what I said.

I was very hungover that day & there was thick snow on the ground.

 

[bograt]

For the through trip out of Giants, only Garlands has to be rigged (although it is free-climbable with a couple of slings as aids).
As a personal friend of all parties involved I am in a position to set the record straight, Tom Watson, the owner of Peakshill farm (Giants) had a bit of a spat with Oliver Rowland (Oxlow) over farming boundary issues (upkeep of walls, etc.). This led to Tom deciding that people paying Oliver to go down 'his cave' should not be allowed to exit onto Peakshill land, cavers where caught in the middle.
At the time I did a few through trips and provided you kept both farmers happy by paying the required fees there was no problem.

Both farms have since changed hands, neither is on access land, what is the relevance?

 

[complex]

Apologies for the delay in response but my weekend was wiped out by a family emergency and I am just recovering from the aftermath.

Complex asked at http://ukcaving.com/board/index.php?topic=17137.msg226166#msg226166 above, if the exception in Schedule 2 to not interfere with a fence  designed to prevent accidents (I paraphrase) overrode the right of access.  My problem with this is if it does, then it drives  a coach and horses through the intent of the act.  I suggest such a padlocked gate to prevent accidents would be normally be excessive (though it could be allowed for by a Sec 25 Direction) so padlocking the gate would deprive the right of access.  So the provider of the padlock would be committing a breach of civil law whilst the person cutting the padlock off could be committing criminal damage.  An interesting stand off.

Hi Bob,

Thanks for getting back to me. I hope that the weekends family emergency has now been resolved.

I have always been told that public safety will trump almost every other piece of legislation (with the exception of "National Security" which appears to override everything else these days). It appears from your answer that you agree that public safety could well take precedence over the right of access to open access land.

I guess that the difference between us is that I don't see it as a problem - the public have a right to wander over nice safe places like fells and so on, but that right is (potentially) withdrawn when it comes to dangerous places such as a mine shaft next to a public footpath. It only "drives a coach and horses through the intent of the act" if you believe that the act gives the general public the right to wander freely around these seemingly dangerous places.

I would have thought it all comes down to the assessment of risk to public safety for each individual site. For some (mainly Mendip) sites such as Coral Cave, the entrance has already been deemed sufficiently risky to public safety that a gate has been installed. In the eyes of a competent H&S lawyer, I would have thought that the only way that the gate can now be safely removed is by demonstrating that the risk to public safety has been reduced through other means so that the gate is no longer required. I'm fairly sure that if the gate has been removed simply to allow the general public to wander around to their hearts content, if there were to be an accident then the person who had removed the gate would be facing some difficult questions from a highly paid legal team. I wouldnt want to be the person who had sanctioned the removal of the gate in those circumstances.

Cheers,
complex

 

[Bob Mehew]

I have always been told that public safety will trump almost every other piece of legislation (with the exception of "National Security" which appears to override everything else these days). It appears from your answer that you agree that public safety could well take precedence over the right of access to open access land.

Sec 25(1)(b) does allow a direction to be issued for "...avoiding danger to the public...".  But please note NE do state that "We cannot give a public safety direction to manage risks arising from natural features in the landscape, such as cliffs or potholes. Often these risks should be obvious to the public and the main onus is on the public to keep themselves and their children safe."  (Extract from 2nd para p13 CAX150-4 at http://publications.naturalengland.org.uk/file/91047.)  CAX150-4 does give as a potential example "dangerous abandoned mineral workings".  But please also note in providing restriction to Access Land, the Government have as a policy "the least restrictive option" which NE follow.  The Derbyshire experience has shown that the simple nut and bolt solution for a catch to a gate is sufficient for mine shafts.  (But see also below.)

I guess that the difference between us is that I don't see it as a problem - the public have a right to wander over nice safe places like fells and so on, but that right is (potentially) withdrawn when it comes to dangerous places such as a mine shaft next to a public footpath. It only "drives a coach and horses through the intent of the act" if you believe that the act gives the general public the right to wander freely around these seemingly dangerous places.

My reason for saying that is not because of public safety but because of the other permitted reason, livestock.  Take the case of a farmer who decides to fence off a parcel of Access Land for deer.  They have high fences you can't get over.  And he also locks the high gate which you can't climb over.  In such a case it effectively is stopping access.  Extrapolate that to a farmer who just fits similar 'high' gates so you can't climb over them and provides no styles over walls.  That is why I think it drives a coach and horses through the intent of the act.  But I think this is off topic and I have no wish to put ideas into land owners' minds.

I would have thought it all comes down to the assessment of risk to public safety for each individual site. For some (mainly Mendip) sites such as Coral Cave, the entrance has already been deemed sufficiently risky to public safety that a gate has been installed. In the eyes of a competent H&S lawyer, I would have thought that the only way that the gate can now be safely removed is by demonstrating that the risk to public safety has been reduced through other means so that the gate is no longer required. I'm fairly sure that if the gate has been removed simply to allow the general public to wander around to their hearts content, if there were to be an accident then the person who had removed the gate would be facing some difficult questions from a highly paid legal team. I wouldnt want to be the person who had sanctioned the removal of the gate in those circumstances.

I have no recollection of seeing Coral Cave so I can't comment on the specific.  But to me the key point is whether a locked gate is required as opposed to a gate held shut by a nut and bolt or a gate held shut by a simple catch.  A risk assessment is required which should take into account factors such as the potential for unaccompanied children of young age coming by who can't reasonably be expected to recognise the hazards.  That risk assessment would identify what as the appropriate 'least restrictive option'.

And just in case it is not clear; I don't wish to remove access restrictions to all caves on Access Land, just to those caves on Access Land where the restrictions were never put in place for conservation reasons.  I am quite happy for access controlling bodies and regional councils to apply for Directions to formalise restrictions where a case can be made to justify them. 

 

[Peter Burgess]

I am quite happy for access controlling bodies and regional councils to apply for Directions to formalise restrictions where a case can be made to justify them. 

Which implies that you would prefer such bodies to take instruction and direction when justified (justified by whom?), rather than allowing local people to use their local judgement as to what is best for the situations where up to now they have always known best. Do you really think this is an improvement?

 

[Ed W]

Peter,

I'm not sure I can see the difference between the two stances here.  Anyone can apply for access restrictions under Sect. 26, and as long as the case is well made then and justified then appropriate access controls can be put in place.  In the majority of cases, I would have thought that it is likely that the Sect 26 application is likely to be made (or at least supported) by the body currently controlling access - so its the same people!

It only becomes an issue if the body currently controlling access cannot provide sufficient justification for doing so.

 

[graham]

It only becomes an issue if the body currently controlling access cannot provide sufficient justification for doing so.

Ed, what counts as 'sufficient justification'? What are the criteria?

 

[Peter Burgess]

Why would a Sect 26 application be required? Oh yes - because someone "discovered" that CRoW applies to cavers and caves. So, at present, local judgment and remedial action is acceptable, and is, in my view, the only workable solution to sorting out such issues. CRoW will tie the hands of those familiar with the specific requirements of a specific site. Bob implied that local judgment was irrelevant, and matters should be passed to a "higher" body. And it would be nice to have an answer to "justified by whom?" This centralised "one size fits all we know best" attitude is disturbing.

 

[Ed W]

It does not currently seem to be disturbing to around two thirds of cavers on UK Caving according tot he poll...

 

[Peter Burgess]

It does not currently seem to be disturbing to around two thirds of cavers on UK Caving according tot he poll...

Yes, and people have the option to change their decision in that poll. If people consider carefully what everyone says on both sides, and realise perhaps a point they had not earlier considered through all the bluster, they might do so. If you value your regional council not being neutered, then reject this concept, however appealing it might seem to you at first sight.

 

[Bob Mehew]

Thank you Ed. 

To answer Peter's question about who judges, the justification will be considered not only by NE or NRW or relevant National Park (plus the relevant heritage body if appropriate) but also by the Local Access Forum to cover local views.  It will also be considered by the following national organisations: British Association for Shooting and Conservation; British Mountaineering Council; Countryside Council for Wales (if the land adjoins land in Wales); Country Land and Business Association; National Farmers? Union; Open Spaces Society; and Ramblers? Association.  (If BCA got its act together then perhaps it could join this august list.)  NE would also publish the fact that a Direction was being considered and allow other representations, read Annex K in RAG V4 for all the detail.

I would suggest that local judgement is highly relevant and a major contributor to both making the case and also through the Local Access Forum, deliberating on it.

 

[Peter Burgess]

So now we have it. Your local council is at the bottom of the heap. Thanks for the clarification, Bob.

 

[tony from suffolk]

I have always been told that public safety will trump almost every other piece of legislation (with the exception of "National Security" which appears to override everything else these days). It appears from your answer that you agree that public safety could well take precedence over the right of access to open access land.

Sec 25(1)(b) does allow a direction to be issued for "...avoiding danger to the public...".  But please note NE do state that "We cannot give a public safety direction to manage risks arising from natural features in the landscape, such as cliffs or potholes. Often these risks should be obvious to the public and the main onus is on the public to keep themselves and their children safe."  (Extract from 2nd para p13 CAX150-4 at http://publications.naturalengland.org.uk/file/91047.)  CAX150-4 does give as a potential example "dangerous abandoned mineral workings".  But please also note in providing restriction to Access Land, the Government have as a policy "the least restrictive option" which NE follow.  The Derbyshire experience has shown that the simple nut and bolt solution for a catch to a gate is sufficient for mine shafts.  (But see also below.)

I guess that the difference between us is that I don't see it as a problem - the public have a right to wander over nice safe places like fells and so on, but that right is (potentially) withdrawn when it comes to dangerous places such as a mine shaft next to a public footpath. It only "drives a coach and horses through the intent of the act" if you believe that the act gives the general public the right to wander freely around these seemingly dangerous places.

My reason for saying that is not because of public safety but because of the other permitted reason, livestock.  Take the case of a farmer who decides to fence off a parcel of Access Land for deer.  They have high fences you can't get over.  And he also locks the high gate which you can't climb over.  In such a case it effectively is stopping access.  Extrapolate that to a farmer who just fits similar 'high' gates so you can't climb over them and provides no styles over walls.  That is why I think it drives a coach and horses through the intent of the act.  But I think this is off topic and I have no wish to put ideas into land owners' minds.

I would have thought it all comes down to the assessment of risk to public safety for each individual site. For some (mainly Mendip) sites such as Coral Cave, the entrance has already been deemed sufficiently risky to public safety that a gate has been installed. In the eyes of a competent H&S lawyer, I would have thought that the only way that the gate can now be safely removed is by demonstrating that the risk to public safety has been reduced through other means so that the gate is no longer required. I'm fairly sure that if the gate has been removed simply to allow the general public to wander around to their hearts content, if there were to be an accident then the person who had removed the gate would be facing some difficult questions from a highly paid legal team. I wouldnt want to be the person who had sanctioned the removal of the gate in those circumstances.

I have no recollection of seeing Coral Cave so I can't comment on the specific.  But to me the key point is whether a locked gate is required as opposed to a gate held shut by a nut and bolt or a gate held shut by a simple catch.  A risk assessment is required which should take into account factors such as the potential for unaccompanied children of young age coming by who can't reasonably be expected to recognise the hazards.  That risk assessment would identify what as the appropriate 'least restrictive option'.

And just in case it is not clear; I don't wish to remove access restrictions to all caves on Access Land, just to those caves on Access Land where the restrictions were never put in place for conservation reasons.  I am quite happy for access controlling bodies and regional councils to apply for Directions to formalise restrictions where a case can be made to justify them.

Public safety could be seen as an issue with open shafts. A sensible sign would do the trick; here's one :-

 

[Ian Adams]

I remain utterly astounded at Bob?s continued and detailed efforts to provide comprehensive answers to (inflammatory) questions only to be repeatedly slapped down with perpetual forms of childish inflammatory remarks. I take my hat off to him for his undying patience and fortitude in his excellent attempts to provide hard facts.

I further remain utterly flabbergasted at certain peoples continued attempts to de-rail the referendum and seemingly ignore the rather obvious position that even if the BCA referendum goes in favour of the ?no?s? and the BCA are mandated not to press for better access under CRoW, that the law will remain the law regardless and (some) cavers will choose to exercise their apparent right in law to visit certain caves in any event.

I am yet even further flabbergasted that certain parties have continually alluded to CRoW being used as a ?weapon? (my word) to solve problems in ?other areas? and to leave the complainees area (The Mendips for instance) out of the argument. And, yet, those same people argue that CRoW will affect caves outside of their area ? the very point they are arguing against.

?. You?d think the world was about to end ?.

Ian

 

[Peter Burgess]

You may gast your flabber as much as you like, Ian, it makes no difference in the overall scheme of things. Those with the courage to do so will continue to point out to those who are sufficiently open-minded to follow a train of thought, any relevant point that requires comment.