Discussion on the post "The effect of changes in liability for Landowners under"

[Stu]

To my mind CROW does not mean a wholesale tearing up of the relationship between cavers and landowners.  There are many cases of voluntary access "restrictions" in place at present, such as the routes we are often asked to follow to particular entrances (Easegill from Bull Pot farms springs to mind).

One factor not taken into account by this statement is the real (to me) likelihood that somewhere at some time, individuals with a sense of entitlement will simply say "it's only a voluntary agreement and I would prefer to execute my rights under CRoW". I think this issue has to be addressed as an unintended consequence.

The other day I was in a queue to pay for some shopping. A woman pushed in front, she was carrying a single item and was pleading that "she'll be quick, I'm in a hurry". There's no law against this, it's a social norm - a voluntary agreement. How do you address this? Well I said something. Did it have any effect, not in this case no, she felt justified because "she was going to be quick - in a hurry etc".

Some things can't be addressed, some things are going to be just so. Bit sad. I don't butt in a queue because I was educated that it was wrong. Some people are going to be idiots, but that isn't a justification for going to the other extreme of legislating or banning or policing with totality any or all human activities.

Best way to deal with it is to deal with it as and when it crops up.

 

[Bottlebank]

I am probably wasting my time

There's obviously confusion over this, Graham and I are right, the current access agreements will be void under CRoW, although individual caves (or perhaps small areas?) could eventually become subject to Section 26 notices or similar, but we don't know how long these will take to get in place and my understanding is that we can't apply for them.

Only around 20 caves on Access Land have locked gates on them.  The rest (several thousand) are unlocked and therefore are already subject to the potential destructive whims of the regrettable few.  CRoW applying to caves will not change that fact or even that threat.

I have already quoted the time scales in NE's guidance material about seeking Directions for the remaining  caves but you appear to reject that.  So I am not even going to provide a link to their "Statutory guidance to relevant authorities on their functions in relation to local access restrictions". 

I will however attempt to correct your incorrect understanding in that you CAN make a representation for such a direction and NE's guidance states they should consider it.

I don't mind giving the link: http://publications.naturalengland.org.uk/file/5064677780357120

1.1.22 The relevant authority may give a direction without application for nature conservation,
heritage preservation, public safety or fire prevention reasons. Any person may make a
representation to the relevant authority if he believes a direction may be necessary on any
of these grounds. There is no right of appeal if the authority does not act in accordance with
a representation, except for the relevant advisory body, which may refer to the Secretary of
State any decision not to act in accordance with its advice on nature conservation or heritage
preservation grounds.

OK, accepted, we could make representation, sorry.

2.1.4 The relevant authority should not restrict CROW access rights unless it is satisfied from the
supporting evidence that a restriction is necessary. It may in practice be required to consider
the need for restrictions in relation to future circumstances about which it cannot be absolutely
certain and may therefore need to weigh the available evidence carefully, giving a direction only
where it judges that the feared consequences of unrestricted CROW access rights are significantly
more likely to happen than not. Where there is reasonable doubt it should delay its decision until
it has sufficient evidence to be certain one way or the other, provided where an application has
been received that it has the agreement of the applicant ? see paragraph 2.1.10. Without such
agreement it should refuse to give a direction, while making clear its willingness to reassess the
case in the future should new evidence emerge.

In other words, we do not know how long this will take.

2.1.8 It is not a responsibility of the relevant authority to assess the need for land management
restrictions on any land, unless it receives a valid application from a person with an interest in
that land. Should the relevant authority receive a representation from another person on these
grounds it may, where appropriate, suggest that the occupier (where known) be contacted by the
person making the representation and provided with any relevant information.

Would we be considered "a person with an interest in
that land"?

2.1.10 Application cases must normally be decided within six weeks of receipt unless the
relevant authority proposes a long-term restriction, in which case the application must be
decided within four months. The relevant authority may take longer where necessary to make its
decision, but only with the consent of the applicant.

Again, we do not know how long this will take, if we are not deemed to have a legal interest then it could be stalled forever.

The chart on page 20 is worth considering, it would seem an application to protect a cave could fail at almost every point.

 

[TheBitterEnd]

To my mind CROW does not mean a wholesale tearing up of the relationship between cavers and landowners.  There are many cases of voluntary access "restrictions" in place at present, such as the routes we are often asked to follow to particular entrances (Easegill from Bull Pot farms springs to mind).

One factor not taken into account by this statement is the real (to me) likelihood that somewhere at some time, individuals with a sense of entitlement will simply say "it's only a voluntary agreement and I would prefer to execute my rights under CRoW". I think this issue has to be addressed as an unintended consequence.

So exactly as it it is now. This happens with current agreements. There will be no change. Before the CRoW act even existed people caved without permits, cut off locks and caused damage. In fact since we are told there are fewer people caving now it would seem that there were more pirate trips going on before CRoW than after it's introduction. It is nothing to do with CRoW, you cannot legislate against idiots.

 

[graham]

2.1.8 It is not a responsibility of the relevant authority to assess the need for land management
restrictions on any land, unless it receives a valid application from a person with an interest in
that land. Should the relevant authority receive a representation from another person on these
grounds it may, where appropriate, suggest that the occupier (where known) be contacted by the
person making the representation and provided with any relevant information.

Would we be considered "a person with an interest in that land"?

If they are using the term 'interest' in a legal sense, then it would mean someone like:

A freeholder

A tenant

A licencee

Someone who is party to a management agreement.

In short if you are formally involved in the management yes, if you aren't then no.

This is my opinion, of course. It would need testing by an application actually being made. That cannot happen until or unless NE accepts that the act actually covers CRoW. That's a bit late in the day to be discovering that either the application could not be made or that the timetable in which it could be decided (never forget, possibly not in the favour of the person making the application, we still have no real idea of the relevant criteria) may stretch out indefinitely. That's not a good bet in my book.

 

[Bob Mehew]

I don't mind giving the link

Thank you for doing so.  I am a bit confused as to why you dismiss the times in para 2.1.10, especially when it says 'must'.  I would like to point out the Annexes contain detail on the processes to be followed.  Annex I is possibly the most significant covering Sec 25(1)(b) re public safety and Sec 26 re conservation and preservation.  Annex I page186 states "...application for a long-term restriction within four months..." else "...in all other cases, to determine an application within six weeks...".  Also Annex K page 194 (which deal with the process for consultation for long term restrictions) states "The urgency of the circumstances giving rise to the proposal should not be factor in deciding the time allowed for consultation. Where a relevant authority believes a restriction is needed urgently, it may give a direction restricting access for less than six months, while separately consulting on a related long-term restriction proposal."

I suggest adequate restrictions can be put in place to cover the transition from 'refusing CRoW applies' to 'accepting that CRoW does apply and having the necessary long term restrictions in place'.

I have sympathy with your quoting in error para 2.1.4 which deals with Sec 24 on land management and thus irrelevant to the grounds cavers would seek to use; I did similar until being corrected  :-[ .  Chapters 2.2, 2.3 and 2.5 cover Sec 25 and 26 and specifically state at 2.2.5, 2.3.5 and 2.5.39 that any third party can make a representation.

 

[ah147]

Ed

Two points:

I am sure that Les's figure of four is an underestimate, as I understand that in the absence of any change in the law, some landowners & their agents are keeping their powder dry and not bringing their sites to wider notice, as they do not feel the need to do so, whether the grounds for concern may be in terms of conservation or safety. You may regard that as misguided but that remains their prerogative.

Yes, your point about perception of access restrictions is correct. However that does not mean it is justified. Some people regard any restrictions on their activities as been unjustified.

How can 4 be an estimate? Surely the access officer can look in his access book and go "1 locked, 2 locked, 3 locked, 4 locked". If he can't then you need a better access officer. However, since I'm sure he does a good job, his figure is right.

Some people do look upon any restriction as abhorrent and against their rights. But the fact is some caves I don't believe to have fully justified reasons for the restrictions.


UFS I have never been in, but from pictures I've seen and bits I've read, it seems fully justified.

Garden Path which I have been into  from the top with a special permit and from top entrance, without a permit (which is entirely within the "rules"), locking that and restricting access into it (access is very very restricted, the trip before mine was 2 years before) is absolutely ludicrous.


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[ah147]

  that any third party can make a representation.

A bit like many bird watchers make applications for different nesting sites as they change through the years for access to climbing crags and sea cliffs.




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[Peter Burgess]

To my mind CROW does not mean a wholesale tearing up of the relationship between cavers and landowners.  There are many cases of voluntary access "restrictions" in place at present, such as the routes we are often asked to follow to particular entrances (Easegill from Bull Pot farms springs to mind).

One factor not taken into account by this statement is the real (to me) likelihood that somewhere at some time, individuals with a sense of entitlement will simply say "it's only a voluntary agreement and I would prefer to execute my rights under CRoW". I think this issue has to be addressed as an unintended consequence.

So exactly as it it is now. This happens with current agreements. There will be no change. Before the CRoW act even existed people caved without permits, cut off locks and caused damage. In fact since we are told there are fewer people caving now it would seem that there were more pirate trips going on before CRoW than after it's introduction. It is nothing to do with CRoW, you cannot legislate against idiots.

No, it isn't actually. If affirmation of CRoW is forthcoming, it would provide the "excuse" for more people to ignore voluntary agreements. I don't know about you, but in all walks of life people take advantage of things if they know they can get away with it. If you provide "official" backing for "getting away with it", you simply make the situation worse. I am specifically referring to the ignoring of voluntary agreements here.

 

[Ed W]

Peter,

As I understand it the land around Easegill is already open access, but from experience most cavers seem to follow the suggested route across the fell from Bull Pot Farm.  I know cave access currently requires a permit, but I cannot for the life of me see how the permit can enforce a route to the cave entrance across access land at the moment.  So I am not sure I agree that just because a suggested access control (such as route to the cave) is voluntary that cavers would have any less incentive to comply with it than at present.

 

[Peter Burgess]

Ed - the world is not centred on Easegill and surrounding lands. This whole sorry debate is a national one, allow me to remind everyone.

 

[graham]

Ed - the world is not centred on Easegill and surrounding lands. This whole sorry debate is a national one, allow me to remind everyone.

 

To add my two penn'orth. Many Mendip landowners whose land is not access land have trouble with people going where they do not have permission "because right to roam innit!". I can image those who are also cave owners getting mighty pissed off if that trend gets added to. I can also see it happening, as the inability to use agreed access routes has already been a problem in some places.

 

[Ed W]

Peter & Graham,

I am fully aware that the world does not rotate around Easegill, neither does it around Mendip (as much as some would have us believe) or even around the Surrey mines.  I simply used the suggested path across the fell to Easegill as an example of where cavers (largely) follow a voluntary part of an access agreement on CROW land.

 

[graham]

Peter & Graham,

I am fully aware that the world does not rotate around Easegill, neither does it around Mendip (as much as some would have us believe) or even around the Surrey mines.  I simply used the suggested path across the fell to Easegill as an example of where cavers (largely) follow a voluntary part of an access agreement on CROW land.

No, it does not revolve around Mendip. However, I do wish it was recognised that an attempt to solve perceived problems in one part of the country is very likely to have deleterious consequences in another. In the Good Old DaysTM cavers recognised this which is why regional councils are meant to be fairly autonomous. It seems that some Bobs people wish to change that.

 

[Peter Burgess]

Ed on that we agree, so please can we remember that sites right around the country are affected, that all have specific local voluntary agreements of many flavours.

Extra note - Graham - please type a little slower - that's the third time you have independently made the same point, in a different way, ahead of me!  :chair:

 

[ah147]

Peter & Graham,

I am fully aware that the world does not rotate around Easegill, neither does it around Mendip (as much as some would have us believe) or even around the Surrey mines.  I simply used the suggested path across the fell to Easegill as an example of where cavers (largely) follow a voluntary part of an access agreement on CROW land.

No, it does not revolve around Mendip. However, I do wish it was recognised that an attempt to solve perceived problems in one part of the country is very likely to have deleterious consequences in another. In the Good Old DaysTM cavers recognised this which is why regional councils are meant to be fairly autonomous. It seems that some Bobs people wish to change that.

Please note that deleterious consequences in one area of the country are possibly exaggerated and are as a result of a general improvement across the country.

You can't please everyone, and all actions will have undesired consequences. It's whether we believe the good outweighs the bad.

 

[Peter Burgess]

No you cannot please everyone - a simple rule of life.

Question to think about: How will things get WORSE if nothing is changed?

 

[Bottlebank]

No you cannot please everyone - a simple rule of life.

Question to think about: How will things get WORSE if nothing is changed?

 

[tony from suffolk]

Well, nothing stays the same. For instance, at the moment a landowner can either decide to sell up or change their mind regarding allowing access to caves on their property. Or might decide they really can't be bothered with having the holes and decide to fill them in.

A vote against CRoW applying to caves won't assure the continued access that might exist now.

 

[ah147]

No you cannot please everyone - a simple rule of life.

Question to think about: How will things get WORSE if nothing is changed?

I cannot give a specific examples, but I'm these could apply somewhere.

Landowner has multiple caves on his (access) land. He allows free access to all apart from one as it's near his house/farm/favourite tree.

He allows relatively unrestricted access to this one upon the use of a logbook. Irresponsible cavers do not use logbook. Over the period of several months the landowner notices multiple lights around the cave entrance on evening trips. Looking in the logbook, nobody has made an entrance in months. Landowner gets fed up, cancels access to all caves on his land.

Another...

Cave is on access land, landowner is brilliant and allows completely free access any time day or night. Landowner sells property. New landowner refuses access.

Another...

Some of the fells in Yorkshire have access allowed in some, but not other caves by the same landowner. Gets fed up of people pirating the refused caves, refuses access to all caves.

Another...

The land owner of a very pretty Mendip cave on access land gets fed up of every Saturday seeing guided trips going across his land, like clockwork as they can't come any other time, and refuses access.

 

[Bottlebank]

Tony from Suffolk and Ash both make good points. These kind of access issues have cropped up occasionally and no doubt would crop up again and usually can be sorted out by regional council access officers although sometimes not. Over the years though under the present system access has actually improved, overall, we have access to more caves now then ever before.

If that trend were to reverse, especially substantially, I could be persuaded to vote for CRoW, but as things stand at the moment I feel that the single biggest risk to access could be a failed campaign for CRoW to cover caving.

Sorry, pressed send too soon there (although probably not for some), meant to press Preview!

There seems to be an assumption that if the vote is yes and the BCA campaign for change that they will succeed. There's been very little discussion as to what happens if they don't succeed. It's something we need to think about.