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

[graham]

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.

Maybe, but how do you tell when you pass in and out of access land without features (walls etc) that have been defined on an official map? Thatls why the courts rely on the Land Registry and their official Ordnance Survey maps when dealing with boundary disputes.

Now can we be nice and stick to the point instead of starting the personal attacks again. I have mentioned mapping before, just ask Bob.

 

[TheBitterEnd]

Touched a nerve did I? I don't think pointing out inconsistencies is a "personal attack", it is merely pointing out inconsistencies. Link to a post of yours over 1 year old which discusses mapped land.

Take a look at the centre of this map - http://binged.it/1ogzhwD around SD685755, there is a transition from access land to non access land without any wall or boundary. How do I know which is which when walking there?

 

[martinr]

snip

Take a look at the centre of this map - http://binged.it/1ogzhwD around SD685755, there is a transition from access land to non access land without any wall or boundary. How do I know which is which when walking there?

Take a GPS with you? Failing that,  I'd say it's where the land underfoot changes from white to grey (via brown)

 

[TheBitterEnd]

I'm not sure ownership of a GPS is a requirement of the CRoW Act 2000.

 

[Lazarus]

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.

Maybe, but how do you tell when you pass in and out of access land without features (walls etc) that have been defined on an official map? Thatls why the courts rely on the Land Registry and their official Ordnance Survey maps when dealing with boundary disputes.

A quick glance at a map (sorry to offend you, but this is a northern based example) will show a fairly large portion of caves exist under CRoW access land. The small portion of large systems that might cross boundaries and briefly under non-CRoW land are small and perhaps irrelevant and to be quite honest I can't see it being policed for trespass. I've seen walkers trample across non-CRoW land, doesn't make it right in the eyes of the law but it's not like they are being a nuisance or being charged for such flagrant disregard for the law.

If the argument is about land mapped then fine. I'll walk across mapped CRoW land and explore (a word used by NE on their website) a cave, until I feel I've reached the boundary of mapped land and make my way out, still under CRoW land, once out I'll walk back across CRoW land. What law have I contravened?

TBE makes a good example of the farce of this oh so perfect mapping - to further this notion there are examples of access land whereby there is no means of accessing it without crossing 'private land' - obviously the people behind this act were a little narrow minded and oblivious to the outdoor world...

 

[martinr]

snip

there are examples of access land whereby there is no means of accessing it without crossing 'private land' - obviously the people behind this act were a little narrow minded and oblivious to the outdoor world...

No, this was forseen when the Act was being drafted, and there is a section in the Act about it

35 Agreements with respect to means of access.

(1)Where, in respect of any access land, it appears to the access authority that?

(a)the opening-up, improvement or repair of any means of access to the land,

(b)the construction of any new means of access to the land,

(c)the maintenance of any means of access to the land, or

(d)the imposition of restrictions?

(i)on the destruction, removal, alteration or stopping-up of any means of access to the land, or

(ii)on the doing of any thing whereby the use of any such means of access to the land by the public would be impeded,

is necessary for giving the public reasonable access to that land in exercise of the right conferred by section 2(1), the access authority may enter into an agreement with the owner or occupier of the land as to the carrying out of the works or the imposition of the restrictions.

(2)An agreement under this section may provide?

(a)for the carrying out of works by the owner or occupier or by the access authority, and

(b)for the making of payments by the access authority?

(i)as a contribution towards, or for the purpose of defraying, costs incurred by the owner or occupier in carrying out any works for which the agreement provides, or

(ii)in consideration of the imposition of any restriction.

 

[Bob Mehew]

I have mentioned mapping before, just ask Bob.

yes.  And I cited http://data.historic-scotland.gov.uk/pls/htmldb/ESCHEDULE.P_ESCHEDULE_DOWNLOADFILE?p_file=606 as an example of how a map can be used to capture a cave without having to go so far as to draw the survey on as well.  When I asked (off the record) where could one work without permission in Claonaite 7, I got the answer I expected, namely outside the mapped boundary projected downwards from the surface.  Which accords with what I understood to be one of the older legal principles of 'from heaven to hell' going back to the 13 century, see http://en.wikipedia.org/wiki/Cuius_est_solum,_eius_est_usque_ad_coelum_et_ad_inferos and reinforced by a 2010 supreme court judgement, see http://www.supremecourt.uk/decided-cases/docs/UKSC_2009_0032_Judgment.pdf.

How do I know where I am, well survey and radio location are both good techniques.  Though I will admit finding the boundary on the surface in this example is equally a bugger with no wall in sight for miles around.  And apologies for a really northern example. 

 

[peterk]

Land, from the point of view of law in the UK, is not just the surface. Caving is not specifically excluded..  :-\

It would be nice if it was that clear cut but when landowners get involved I think it is far from straight forward.  I've not yet seen a legal definition of a cave, a US site uslegal.com (standing unknown) says: A cave is generally defined as any natural subterranean cavity that is at least 50 feet in length or depth, or any combination of length and depth or that contains obligatory cavernicolous fauna (animals obliged to live underground)..

The US legal system has its roots in English common law and the area round Mammoth Cave has had some interesting civil court cases in the early 1900's that revolve around ownership of the entrance = ownership of the system and adverse possession claims on the lines of I've occupied the cave as a show cave  for years so I now own it all.  Then an alternative entrance is found into the "I own it all system" so Mr New Entrance thinks I must own everything up to my boundary.  There are records of civil cases in coal mines in the Lune valley that drag on for years in the 18th century - My mine has just broken into your mine and its on my land. Countered by the "entrance of the mine is on my land and I let out the right to mine to a third party". I presume this was avoided by establishment of local "courts" in Derbyshire, Forest of Dean etc.

Some American links:
http://www.appalachianhistory.net/2011/05/kentucky-cave-wars_15.html Worth a look and an example of what happens when the law isn't clear "Mammoth?s rivals went to dastardly lengths to lure tourists to their underground cash cows. They placed misleading signs along the roads leading from Cave City to the Mammoth Cave. They diverted tourists with fake policemen, employed stooges to heckle each other?s guided tours, burned down ticket huts, and put out libelous and forged advertisements."
http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=4697&context=ilj

http://www.ket.org/education/guides/cave/history.pdf - A Short History of Mammoth Cave . The last para on page 4 contains an interesting definition of a cave

It is possible that the above was in the mind of CROW draughtsmen - "We'd need to double the size of the Bill to sort out cave systems and open access land AND this is a Bill about access and not land reform".

A question: I downloaded the original CROW Act and searched for "climb" - no hits.  Did anyone else assume "climbing" was there and what did the BMC achieve?

 

[martinr]

I'm not sure ownership of a GPS is a requirement of the CRoW Act 2000.

Nor is ownership of a map

In the eg you gave, if you zoom in and switch between OSmap and Birds Eye, it's reasonably clear the boundary is the foot of a crag

 

[Bob Mehew]

A question: I downloaded the original CROW Act and searched for "climb" - no hits.  Did anyone else assume "climbing" was there and what did the BMC achieve?

You would have to go and read the debates in parliament to find a fair number of references to climbing.  As an example I previously cited http://hansard.millbanksystems.com/lords/2000/sep/27/countryside-and-rights-of-way-bill-1 as a useful quote re the definition of open air recreation.  If you scroll down to around col 882 you will find a useful quote involving climbing.  What the BMC achieved was loads of references to how climbing came within the deliberately poorly defined term of 'open air recreation' so no one can now claim it is not included.  There was another quote I came across in which the Minister admitted it was acceptable to walk across access land with a canoe but not use it in water - much I expect to the chagrin of BCU.  So it can be a double edged sword.

 

[Lazarus]

No, this was forseen when the Act was being drafted, and there is a section in the Act about it
*drivel-snipped*

Oh well, I'll print all that out and just wander at will and wave it at anyone officious looking. The average man on the street with a map showing where he can or cannot go wouldn't be any the wiser. That drivel is deep seated in the act and not obvious or generally printed, quit the pedantic crap.

I'm not sure ownership of a GPS is a requirement of the CRoW Act 2000.

Nor is ownership of a map

In the eg you gave, if you zoom in and switch between OSmap and Birds Eye, it's reasonably clear the boundary is the foot of a crag

I'm sorry but I don't have satellite imagery on my paper map so wouldn't know where the exact boundary was whilst out walking. 

 

[graham]

This quote may be pertinant at this point in the discussion:

Why didn't the CROW Act 2000 create new rights to use woodland and watersides too?

  The Countryside Agency, together with other agencies (Forestry Commission, Environment Agency, English Nature and Countryside Council for Wales), advised the Government that both land types were too diverse and fragmented for statutory rights of access to be a practical proposition.

That is from this document of FAQs

http://www.naturalengland.org.uk/Images/03_definition_of_Access_land%20FAQ_V1.0_tcm6-23138.pdf

The document gives useful definitions of "mountain, moor, heath and down" and makes interesting reading in this regard. It would seem to me that such documents were not brought to Ms Rose's attention as she makes virtually no mention of the matter.

 

[Bottlebank]

This quote may be pertinant at this point in the discussion:

Why didn't the CROW Act 2000 create new rights to use woodland and watersides too?

  The Countryside Agency, together with other agencies (Forestry Commission, Environment Agency, English Nature and Countryside Council for Wales), advised the Government that both land types were too diverse and fragmented for statutory rights of access to be a practical proposition.

That is from this document of FAQs

http://www.naturalengland.org.uk/Images/03_definition_of_Access_land%20FAQ_V1.0_tcm6-23138.pdf

The document gives useful definitions of "mountain, moor, heath and down" and makes interesting reading in this regard. It would seem to me that such documents were not brought to Ms Rose's attention as she makes virtually no mention of the matter.

It also provides a possible explanation of why Eldon Hole and Marble Steps are apparently excluded -

The categories of land were selected to help ensure that the right of access is exercised with
consideration for other people and that the public are not placed in positions of danger:

Purely an observation - I'm not suggesting caves were excluded for this reason - my assumption is they were never included.

 

[peterk]

A question: I downloaded the original CROW Act and searched for "climb" - no hits.  Did anyone else assume "climbing" was there and what did the BMC achieve?

You would have to go and read the debates in parliament to find a fair number of references to climbing.  As an example I previously cited http://hansard.millbanksystems.com/lords/2000/sep/27/countryside-and-rights-of-way-bill-1 as a useful quote re the definition of open air recreation.  If you scroll down to around col 882 you will find a useful quote involving climbing.  What the BMC achieved was loads of references to how climbing came within the deliberately poorly defined term of 'open air recreation' so no one can now claim it is not included.  There was another quote I came across in which the Minister admitted it was acceptable to walk across access land with a canoe but not use it in water - much I expect to the chagrin of BCU.  So it can be a double edged sword.

Bob
Thanks for that reference.  This thread may never have existed if their noble Lords had listened to Lord Marlesford: It is a basic principle of legislation that the courts have to determine points of which Parliament has not thought in the process of legislating. But when a question is raised during the consideration of legislation it is not good practice for a government to say, "We do not know the answer to that. We must leave it to the courts". That is not the right way to legislate.

 

[martinr]

No, this was forseen when the Act was being drafted, and there is a section in the Act about it
*drivel-snipped*

Oh well, I'll print all that out and just wander at will and wave it at anyone officious looking. The average man on the street with a map showing where he can or cannot go wouldn't be any the wiser. That drivel is deep seated in the act and not obvious or generally printed, quit the pedantic crap.

In sorry the act is pedantic; I didnt write it.

Here's a plain English version

What happens if an area of open country has no right of way leading to and from it?  Local highway authorities have powers to negotiate public right of way creation agreements and orders with landowners. These powers have been extended under the CROW Act to enable the establishment of public access to or across land adjacent to inaccessible islands of access land. 

I'm not sure ownership of a GPS is a requirement of the CRoW Act 2000.

In the eg you gave, if you zoom in and switch between OSmap and Birds Eye, it's reasonably clear the boundary is the foot of a crag

I'm sorry but I don't have satellite imagery on my paper map so wouldn't know where the exact boundary was whilst out walking.

I'm sure your map reading skills will be adequate

 

[Lazarus]

This quote may be pertinant at this point in the discussion:

Why didn't the CROW Act 2000 create new rights to use woodland and watersides too?

  The Countryside Agency, together with other agencies (Forestry Commission, Environment Agency, English Nature and Countryside Council for Wales), advised the Government that both land types were too diverse and fragmented for statutory rights of access to be a practical proposition.

The following quote should be taken in context, immediately above the one Graham quotes in the linked document (my underlining):

Are woods and river banks be open to the public?  (yes, that's how it is worded in the document, I double checked)
The CROW Act 2000 does not give new public rights of access to these areas unless they
are included in larger areas of access land. But landowners may dedicate permanent access
over such areas (See the Dedication section of the website)

 

[Lazarus]

I'm not sure ownership of a GPS is a requirement of the CRoW Act 2000.

In the eg you gave, if you zoom in and switch between OSmap and Birds Eye, it's reasonably clear the boundary is the foot of a crag

I'm sorry but I don't have satellite imagery on my paper map so wouldn't know where the exact boundary was whilst out walking.

I'm sure your map reading skills will be adequate

More than adequate thank you. Questioning my skills is not the question, it is that of the greater public that will also use these maps, I'm sure a fair portion could work it out but how many would not? Anyway, this is getting off-topic.

 

[graham]

What you also need to read is the document "Lessons Learned" (can' the cut and paste links easily on a tablet) which describes how they did the mapping, using the OS Mastermap product to identify the boundaries.

As I have said, the OS hasn't mapped our caves.

 

[martinr]

snip

Questioning my skills is not the question, it is that of the greater public that will also use these maps, I'm sure a fair portion could work it out but how many would not? Anyway, this is getting off-topic.

I wasn't questioning the  map reading skills of you or anyone else on the forum, I reckon all cavers are pretty good map readers.

As for the public, isn't it the answer simple: education?

 

[Lazarus]

This quote may be pertinant at this point in the discussion:

Why didn't the CROW Act 2000 create new rights to use woodland and watersides too?

  The Countryside Agency, together with other agencies (Forestry Commission, Environment Agency, English Nature and Countryside Council for Wales), advised the Government that both land types were too diverse and fragmented for statutory rights of access to be a practical proposition.

That is from this document of FAQs

http://www.naturalengland.org.uk/Images/03_definition_of_Access_land%20FAQ_V1.0_tcm6-23138.pdf

The document gives useful definitions of "mountain, moor, heath and down" and makes interesting reading in this regard. It would seem to me that such documents were not brought to Ms Rose's attention as she makes virtually no mention of the matter.

It also provides a possible explanation of why Eldon Hole and Marble Steps are apparently excluded -

The categories of land were selected to help ensure that the right of access is exercised with
consideration for other people and that the public are not placed in positions of danger:

Purely an observation - I'm not suggesting caves were excluded for this reason - my assumption is they were never included.

But then why were the likes of Gaping Gill, Meregill, Rowten, Rumbling and many other open shafts not excluded? Surely they represent as much danger as Marble Steps and Eldon. I'd guess they saw a walled enclosure with a hole and considered it dangerous without thinking, but a large open hole on a fell side with nothing surrounding it is ok... (oh, how's the wall at Marble Steps these days, inaccurately mapped perhaps?)