QC says cavers DO have access to caves under the CROW Act

[bograt]

Please be aware that at the time the law was ratified, NCA was in a state of transition into BCA, this was a rather confused period which made any co-ordinated policy decisions difficult to say the least!

 

[bazdog]

Please be aware that at the time the law was ratified, NCA was in a state of transition into BCA, this was a rather confused period which made any co-ordinated policy decisions difficult to say the least!

Which is why it cannot be assumed that any submission either way ever made it to the correct department. The BMC lobbied for access and got it. If the response from the NCA was confused/contraditionary or not received then it may explain why caving is not mentioned either way?

 

[Bottlebank]

Please be aware that at the time the law was ratified, NCA was in a state of transition into BCA, this was a rather confused period which made any co-ordinated policy decisions difficult to say the least!

Which is why it cannot be assumed that any submission either way ever made it to the correct department. The BMC lobbied for access and got it. If the response from the NCA was confused/contraditionary or not received then it may explain why caving is not mentioned either way?

It might, but it would also confirm that caving was not covered.

The big difference to me between climbing and caving is that climbing is an activity that takes place on mapped access land. Caving doesn't, it takes place underneath or completely outside of mapped access land, hence no need to even consider it - unless you first change the definition of access land to include caves below it.

There are many parts of a landowners property that are not considered access land. Whilst a cave under his land may be considered a part of his property there is no reason to suggest it is also part of the access land.

This seems to have been the NCA view at the time, which is presumably why they wanted the definition changed - whether they submitted the form isn't really that relevant, the key thing is the definition wasn't changed.

And thank you all for keeping things civil over the last few hours - it's been a refreshing change and long may it continue!

 

[bograt]

Please be aware that at the time the law was ratified, NCA was in a state of transition into BCA, this was a rather confused period which made any co-ordinated policy decisions difficult to say the least!

Which is why it cannot be assumed that any submission either way ever made it to the correct department. The BMC lobbied for access and got it. If the response from the NCA was confused/contraditionary or not received then it may explain why caving is not mentioned either way?

The submission was made at the consultation stage by NCA (Graham Price, C&A convener), this was about 2 or 3 years before ratification and the genesis of BCA.

 

[bograt]

And thank you all for keeping things civil over the last few hours - it's been a refreshing change and long may it continue!

Maybe thats because of the absence of certain protagonists :-\, we can be sensible sometimes

 

[Martin Laverty]

Bottleband said

caves were not included in the definition of "mountain, moor, heath, down and registered common land", the NCA lobbied for a change in this definition and also that mapping should include caves

but the subsequent Act actually defines open country as ...

wholly or predominantly of mountain, moor, heath or down

... To my mind, that is enough to cover cave entrances in the surface, and there was never any need (pace Wilson/Judson) to include map caves themselves on access maps as (as pointed out by Graham many times, and just reiterated by bograt) land is not just the surface, but everything below it as well.

So, as Ms Rose concluded, the only real irritation is the use of the adjective open-air to qualify recreation in the Act rather than, say, its synonym (in common usage) outdoor or something like "low surface-impact", which covers the explicitly allowed activities (and caving) and excludes those explicitly disallowed (except with the consent of the landowner).

While it can't be argued that good relations with landowners, their tenants and agents should not be willfully damaged, it cannot be right for the BCA constitution (also echoed in the Cambrian CC's Guiding Principles) to place their wishes before a right granted by Parliament over the parts of their land designated by the relevant access bodies. The addition of the words 'except for access land' would suffice to correct this, as pointed out earlier in this thread.

 

[Bottlebank]

Bottleband said

caves were not included in the definition of "mountain, moor, heath, down and registered common land", the NCA lobbied for a change in this definition and also that mapping should include caves

but the subsequent Act actually defines open country as ...

wholly or predominantly of mountain, moor, heath or down

... To my mind, that is enough to cover cave entrances in the surface, and there was never any need (pace Wilson/Judson) to include map caves themselves on access maps as (as pointed out by Graham many times, and just reiterated by bograt) land is not just the surface, but everything below it as well.

At lot of thought was obviously put into what activities should be excluded. Surely the most obvious explanation, as backed up by the NCA's attempt to get the definition changed, and evidenced by the fact it was neither included nor excluded, is that in the minds of the legislators at the time there was no need to exclude caving as it was not an activity taking place on Access Land?

This would explain everything that happened both at the time and subsequently and really is the only explanation that seems to make sense of everything.

The key thing is that we are not trying to establish what some of us would like to have happened, but what Parliament intended.

I'd be really interested to hear both Dinah Rose and Linda Wilson's view of this?

 

[droid]

It is legally accepted (and backed by precedent) that a landowners property consists of ground from the surface to the earths core unless there are other factors involved (mineral rights, etc.), what no-one knows is whether the CRoW maps cover this same convention, if they do then the 'right to roam' in cave passage under mapped ground should be included.
If, however the CRoW maps are only meant to identify surface areas, then, as you say, an agreement with the landowner is likely to be required.

I would like to see a study of the historical reasons for many of the current access controls, I suspect many of them will be rendered obsolete by the advent of CRoW (Grouse Moors, private land, etc.) whilst others can be legitamised on the grounds of conservation or general public safety. Such a study could indentify which systems can sensibly retain restrictions and those that no longer require them.

I'm not going to argue with any of that.

So am I reading it right: the bit that REALLY needs clarification is not the right to access cave entrances on CRoW land, but the right to ENTER those entrances?

 

[martinr]

deleted - login problem, solved

 

[Lazarus]

Bottleband said

caves were not included in the definition of "mountain, moor, heath, down and registered common land", the NCA lobbied for a change in this definition and also that mapping should include caves

but the subsequent Act actually defines open country as ...

wholly or predominantly of mountain, moor, heath or down

... To my mind, that is enough to cover cave entrances in the surface, and there was never any need (pace Wilson/Judson) to include map caves themselves on access maps as (as pointed out by Graham many times, and just reiterated by bograt) land is not just the surface, but everything below it as well.

At lot of thought was obviously put into what activities should be excluded. Surely the most obvious explanation, as backed up by the NCA's attempt to get the definition changed, and evidenced by the fact it was neither included nor excluded, is that in the minds of the legislators at the time there was no need to exclude caving as it was not an activity taking place on Access Land?

This would explain everything that happened both at the time and subsequently and really is the only explanation that seems to make sense of everything.

It doesn't make sense though.
As part of the act I can indulge in open air recreation dangling from a rope in, let's say, Gaping Gill, Rumbling Hole, Cow Pot or as most walkers do (not controlled access I know, but a fair example and best I could think of off the top of my head) explore Victoria Cave and others nearby. I'm not aware of any walker being accused of trespass when entering a cave with a handheld torch, so why should I be treated different just because my choice of attire is different?

 

[Bob Mehew]

There was a list of submitters issued by DETR, the lead department dealing with the passage of CRoW.  NCA, CCC and several caving clubs were named as having submitted something.  I think it is reasonable to assume that the NCA document found was submitted.  I fully agree that given the contrary messages delivered to DETR, it is not surprising that caving got no mention in the parliamentary debates let alone in the act.  (Going down a mine got one mention but was not followed up on.)

As one of those who participated in creating BCA, I would not like to claim the work on setting up BCA took our eyes off CRoW.  I concede I have no recollection of what went on at Council from 1999 onwards with regard to CRoW.  Which is why I have this curiosity about when did the switch from pro to anti occur.  And as has been pointed out the submission was made in March 1998 well before we started to consider creating BCA which was in late 1999 / 2000.

I have a different approach to interpreting the act as was covered at pages 22 to 27 in http://british-caving.org.uk/wiki3/lib/exe/fetch.php?media=about:documents:general_meetings:agm_reports_2014.pdf .  In fairness, I will add that Graham disagrees with much of it.  Some of it was debated in previous threads but I am afraid I do not have the time to locate the detailed references.  And as Graham said in http://ukcaving.com/board/index.php?topic=16816.msg221325#msg221325 "...there is little to be gained in to-ing and fro-ing on this as neither of us are lawyers....".  Though as you may expect, I don't agree with him.

(As an aside - Has any one a way of keeping track of points in a thread?  My efforts have been taken me back to rereading the whole thread.  Clearly inefficient!)

I hesitate to add to the QC's opinion as I was not party to her thought processes.  Hopefully tomorrow I shall be making, a statement on access to the 'instructions' which did cover some of what I put forward in the above link.  It will also cover a way forward assuming CRoW does apply to caving.

One point which came out in the debates during the passge of CRoW was the statement by a minister that:

?The Bill provides a right of access to land for "the purposes of open-air recreation". This term was not defined in drafting the Bill because we considered that a definition would be undesirably restrictive and unnecessary.?

which comes from the second reading debate on the Countryside and Rights of Way Bill in the House of Lords Debate on 27 September 2000 and can be found at http://hansard.millbanksystems.com/lords/2000/sep/27/countryside-and-rights-of-way-bill-1 by scrolling down to around column 883.

In my mind the question is not whether we can walk to the entrance and peer in it, but can we go down into the cave.  The view which has prevailed for the past 14 years is we can only peer in.  I and others are now challenging that.  We may be saying the same thing Droid, but words can be tricky at times.

My apologies if this breaks up the reasonableness of this afternoon.

PS I just checked and every page on this thread was offered to me for clicking on. 

 

[martinr]

snip

There was a list of submitters issued by DETR, the lead department dealing with the passage of CRoW.  NCA, CCC and several caving clubs were named as having submitted something.  I think it is reasonable to assume that the NCA document found was submitted. 

The NCA did make a submission

MCG News
September 1998 Issue 272

MCG and NCA respond to Government Consultation on ?Right to Roam?

In June [1998], the MCG responded to the Government?s consultation paper on Access to Open Countryside. The NCA had raised the issue and urged as many caving clubs as possible to respond to the document or to Support the NCA?s response. The consultation followed the Labour Party?s pledge to secure greater access to the open countryside. Whilst caving was not mentioned specifically, access to many cave entrances could be affected by these proposals and so the NCA felt it necessary to make the voice of cavers heard.

The consultation paper put forward 35 proposals and set out some initial proposals and described some of the practical issues which need to be resolved. The Government is not calling for unrestricted access everywhere. The priority is to increase access to mountain, moor, heath, down and common land, which between them represent no more than 12% of England and Wales ? some already subject to access. If the Government?s objectives could be achieved by totally voluntary means there would be no need for any legislation, but it is questionable how successful this might be. Whatever legislation is introduced however, voluntary measures will continue to be encouraged. Any new legislation in this area could however be used to shape the way that future access arrangements for other types of [l]and are shaped, hence the need for a response by cavers.

The MCG response focuses mainly on the government?s definition of ?open-air recreation?. The committee were concerned to ensure that present access arrangements for cavers to caves are maintained and not jeopardised by a change in the definition. We argued that caving should he included in the definition of ?open?air recreation? and that cave entrances should be covered in the list of areas covered by the scope of the consultation. It would be unfortunate if access rights for cavers were inadvertently overlooked by the DETR.

Other issues raised in our response are:
? A preference for a statutory right to roam, rather than a voluntary scheme (which already exists in many areas and has led to loss of access to some caves). A statutory basis for access [would] avoid confusion and allow responsibilities of landowners and users alike to be clearly laid out;
? That government ought to consider extending the scope of the proposals to other types of land (e.g. cultivated land) for access to natural sites such as caves;
? That consideration be given to extending voluntary arrangements to agricultural/cultivated land;
? Our support for guidance/agreed codes of practice for recreational users;
? Our concern over the proposal to allow landowners to ask for a financial contribution for the use of facilities provided for access. This could, we thought, be abused by giving landowners an incentive to provide additional and maybe unnecessary facilities in the countryside in order to make profit. Access by foot to land should be free of charge.
In the region of 2000 responses have been received by the DETR. During the coining months they will be analysing these responses and holding further meetings with a number of national bodies, local government, the statutory conservation agencies, and other interested parties. The intention is to make recommendations to the Government in the autumn and it is understood the intention is to proceed with any legislation fairly quickly.
For cavers to make any headway in this matter, the more pressure that can he put on the Government, the better. The NCA, in addition to responding to the document are therefore liaising closely with other national bodies with  similar interests, and also with the Central Council of Physical Recreation (CCPR) as members of the Outdoor Pursuits Division, who are more likely to make effective representations.

Copies of the Department of the Environment, Transport and the Regions? (DETR) consultation paper may be found on their Website at http://www.nds.coi.gov.uk/coi/coipress.nsf.

The NCA response is available on their Website at http://web.ukonline.co.uk/nca/ Look under ?Administration? and then ?Miscellaneous documents?.

although the links no longer work

 

[Martin Laverty]

Bottlebank is

trying to establish ... what Parliament intended.

Thinking of the makeup of Parliament at the time, I guess that most MPs involved on the majority side wanted to regularise the access to moors and mountains for healthy recreation aspired to in England and Wales since the "Kinder Trespass" and the subsequent "Hobhouse Report", probably drawing on the model many enjoyed in Scotland (eg Robin Cook, who died on a Scottish mountain). I can't think of many Lords or MPs with much personal knowledge of caving, but suspect that those for the Bill would have considered caving as a kindred activity, rather like climbing, albeit with such negligible participation and mostly so harmless as to be justifiably overlooked. (After all, the whole body of British cavers - past and present - probably wouldn't fill a football ground, although adding those who have some appreciation from guided youth/management training activities might push the numbers up a bit).

Incidentally, the Wilson/Judson suggestion that Parliament obviously intended to exclude caves from the Act by excising Marble Steps and Eldon Hole from surrounding access land is as mischievous as it is risible: the Act placed decisions on what land to cover in the hands of separate English and Welsh Access bodies, not itself or a Minister, after the Bill was passed.

 

[Lazarus]

The NCA response is available on their Website at http://web.ukonline.co.uk/nca/ Look under “Administration” and then “Miscellaneous documents”.

although the links no longer work

Has anyone tried the "Way Back Machine"? http://archive.org/web/

Type in the NCA address mentioned above and see what crops up on whatever date it was archived. I'm not 100% sure what to look for, might be worth a try though, no guarantees but better than nowt..

 

[Bottlebank]

Bottlebank is

trying to establish ... what Parliament intended.

Thinking of the makeup of Parliament at the time, I guess that most MPs involved on the majority side wanted to regularise the access to moors and mountains for healthy recreation aspired to in England and Wales since the "Kinder Trespass" and the subsequent "Hobhouse Report", probably drawing on the model many enjoyed in Scotland (eg Robin Cook, who died on a Scottish mountain). I can't think of many Lords or MPs with much personal knowledge of caving, but suspect that those for the Bill would have considered caving as a kindred activity, rather like climbing, albeit with such negligible participation and mostly so harmless as to be justifiably overlooked. (After all, the whole body of British cavers - past and present - probably wouldn't fill a football ground, although adding those who have some appreciation from guided youth/management training activities might push the numbers up a bit).

Incidentally, the Wilson/Judson suggestion that Parliament obviously intended to exclude caves from the Act by excising Marble Steps and Eldon Hole from surrounding access land is as mischievous as it is risible: the Act placed decisions on what land to cover in the hands of separate English and Welsh Access bodies, not itself or a Minister, after the Bill was passed.

Martin,

I'm sure you are quite right about the sentiments of Labour MP's at the time, but that's not the same thing as their intentions in relation to this Act.

Two things have always puzzled me about the CRoW Act - why was caving not included, and equally more importantly why it was not excluded. Such mundane things as banning posting notices were included as an example, the list was pretty comprehensive. The NCA document answered the question to my mind, and the fact there appears to have been no subsequent discussion between them and the governing body, NCA or BCA, reinforces this. The simplest explanation was they were convinced that caves did not form part of Access Land. So even though their sentiments, had they thought about them, may have been with cavers their intentions did not cover us.

The subsequent advice from people like DEFRA and NE also add to the case, even if they have eventually backed off on some open shafts.

Of course I may be completely wrong, but until someone can come up with a better explanation I'm happy this is probably what happened.

Tony

 

[Simon Wilson]

You can only have a list of things that are excluded. You can't have a list of thing that are included because how would you include trinkhopping? If things were all thing were deemed to be excluded because they were not on the included list I would not be allowed to practice my trinkhopping.

Must dash, I'm meeting some other trinkhoppers.

 

[graham]

Tony

I think you are right. Discussions that I have had with various NE people down the years largely come down to the simple observation that as caves are not included as mapped access land - and as an aside, I cannot see how they could be given the lack of a statutory mapping agency that produces 'official' legally acceptable maps of caves as the OS does for the surface - there is no need to specifically exclude caving from those things included under CRoW.

 

[TheBitterEnd]

Funny how you have changed your tune on this. I can remember in previous debates on CRoW you have strongly made the "not open air" argument and never mentioned mapped land. If as you say

Discussions that I have had with various NE people down the years

I'm sure it would have cropped up previously however I'm sure you were just "keeping your powder dry" or couldn't reveal your source or some such but  as Bograt points out it is trite law that land ownership and therefore boundaries extend all the way down.

 

[exsumper]

I am writing to offer a sincere apology to anyone who thinks that I've lost my bottle and withdrew or deleted my last two posts.  This was not the case. I have been informed by the UK Caving team that my posts were causing offence and that in the future all of my posts will be moderated before publication. I have been inspired to make this heartfelt apology by the receipt of numerous PM's highlighting the logical fallacies in my arguments; e.g. that unlike caving politicians, women's genitalia  have a use and purpose.
I therefore apologise for the offence caused! 

 

[Lazarus]

Tony

I think you are right. Discussions that I have had with various NE people down the years largely come down to the simple observation that as caves are not included as mapped access land - and as an aside, I cannot see how they could be given the lack of a statutory mapping agency that produces 'official' legally acceptable maps of caves as the OS does for the surface - there is no need to specifically exclude caving from those things included under CRoW.

According to the NE website "People across England now have approximately 865,000 hectares of land across which they can walk, ramble, run, explore, climb and watch wildlife as they are given the freedom to access land, without having to stay on paths."
Land, from the point of view of law in the UK, is not just the surface. Caving is not specifically excluded..  :-\