Unfortunately, as you well know, it was not as simple as that. The judicial review was primarily raised due to the fact that you, as the representative of caving in Wales, had been excluded from the Access Reform Advisory Group. The secondary point, the grounds for exclusion given, were that CRoW did not apply to caving. Despite lengthy and expensive legal action undertaken on your behalf the primary point continued to prevent the secondary point ever getting in front of a judge. After 80k down, and a lot of diligent work by Dave Rose and the team, all the legal advice was to taken the settlement on offer. You didn't agree with it, you made a big fuss, but pretty much everyone else connected with the case knew it was the only realistic course to take.What a pity then that the BCA JR case was pulled before it got to the stage of having a judge decide if walking across public access land to some cave entrance and then going into the cave is all included in the term "open-air recreation" when the government's central plank in opposing caving on CROW access land is that caving isn't open-air recreation (in their opinion) which leads to the absurd position that walking to cave entrances is lawful but going into the cave then immediately in front of you isn't.
Climbing isn't mentioned either, yet it is generally agreed to be included. Why climbing but not caving?I would suggest that no court should be trying to rewrite CRoW, that is the job of parliament. When you do it via an amendment to the act, after suitable consultation, there will be no dispute.
It’s pretty clear what the intent was as not just caving was excluded in England. It’s just for walking (ie the Ramblers Charter). It’s just that caving was so inconsequential and unnoticed it wasn’t actually mentioned in CRoW. You can ponder why it wasn’t even officially excluded, it was that bad.
Caving is in the strange position that their suggested interpretation means you can enter up to the limit of daylight. But if you do go further then all the landowner can do is ask you to leave by the shortest possible route & as long as you don't cause damage or are aggressive the police won't get involved.People can normally access your open access land on foot. They can:
- walk
- sightsee
- bird-watch
- climb
- run
Climbing isn't mentioned either, yet it is generally agreed to be included. Why climbing but not caving?
It's definitely not just for walking. If it was, it would say that.
It's not at all clear where caving sits. It _is_ the job of courts to interpret legislation.
Are there many examples of cavers being denied access to caves under Access Land? Since caving is not excluded in Schedule 2, and is "open-air" in the sense that it's not in a building, now reinforced by tents being open-air, is it not reasonable to expect that it's permitted?Everything is allowed within the umbrella term "open-air recreation" unless it is on the forbidden list at Schedule 2.
My point was that neither caving not climbing are mentioned in the Act. Theoretically someone could challenge the right to climb in court over CROW (albeit I rather suspect it would fail). Guidance is not the law, just the current understanding of the interpretation of the law.Climbing was deemed to be steep walking. BMC was on the job.
I think people need to think very carefully about allowing tents anywhere in a National Park. Be realistic about what would happen. The Parks in England are quite small, mostly not very wild at all, and we have nearly 70 million people. Most people with a tent are going to camp out of a car and set up a BBQ etc, in some places in very large numbers where it is accessible. There are no toilet facilities, so you get what you expect. That’s why we have campsites.Tents are only allowed on the Dartmoor Commons because of the local bylaws, not CRoW. Caving has been deemed by some to be not in the open air - they aren't precisely analogous.