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

[martinr]

Lazarus - DEFRA reviewd the mapping process once it was over. One of the comments they made was about the inconsistencies, caused by different parcels being mapped by different teams to different standards (at least that's what I think they mean, see quote). Maybe that's why Eldon was excluded but GG was included? But we dont really know

the Agency mapped open country on a parcel basis, using the Ordnance Survey Mastermap (TM) product to identify where the boundaries are, which are the most appropriate etc.  Whilst this method of mapping has worked, in that the mapping work has been completed, it has resulted in a scattering of open country across southern England, and around the margins of the core areas of the northern uplands.  At the beginning of any future mapping process that focuses on specific areas of land, and which involves multiple parties, it is vital that a consistent, transparent and understandable means of boundary selection is agreed. 

and

A consistent and robust method of identifying boundaries of any mapped areas needs to be devised.  Mapping at a landscape level rather than a parcel level would require some substantial changes to the mapping process (boundary selection would take on a
very different meaning) A detailed examination of the benefits and problems of such an approach is needed. 

 

[Lazarus]

Lazarus - DEFRA reviewd the mapping process once it was over. One of the comments they made was about the inconsistencies, caused by different areas being mapped by different teams to different standards. Maybe that's why Eldon was excluded but GG was included? But we dont really know

Plausible to a certain extent. Ridiculous from another viewpoint. Like you say we don't know, but I'd go for the view that the exclusion of just two supposedly walled holes against a considerably larger number of other open holes suggests open holes are a feature of the land and thus included within the scope of the act. If they were to be excluded those mappers would have been informed, surely?

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

But the "land" is mapped.

 

[martinr]

snip

If they were to be excluded those mappers would have been informed, surely?

Informed by who? (serious question, not being sarcastic)

 

[graham]

Lazarus - DEFRA reviewd the mapping process once it was over. One of the comments they made was about the inconsistencies, caused by different areas being mapped by different teams to different standards. Maybe that's why Eldon was excluded but GG was included? But we dont really know

Plausible to a certain extent. Ridiculous from another viewpoint. Like you say we don't know, but I'd go for the view that the exclusion of just two supposedly walled holes against a considerably larger number of other open holes suggests open holes are a feature of the land and thus included within the scope of the act. If they were to be excluded those mappers would have been informed, surely?

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

But the "land" is mapped.

No, in this context, what they were mapping was identifiable boundaries.

 

[And]

So whether NCA did or did not lobby for caving to be included in CROW, it definitely ended up being included in the Land Reform act in Scotland.  So was it either poor lobbying from the pro-camp as to why it didn't end up being included in E&W, or poor lobbying from the anti-camp as to why it was included in Scotland.  :-\

I think it would be anomalous that caving isn't included in CROW. Sort of turning point 4 by Wilson/Judson around, at the moment we can walk over Casterton Fell up to Lancaster Hole and poke our head in and have a look under CROW. We can also walk over Casterton Fell to Mistral/Pippikin, which don't need permits, and cave under Casterton Fell and pop our heads out of Lancaster Hole. However one interpretation of the law says that we do not have the right to cross the threshold in/out of Lancaster Hole.

As much as I think caving is probably included in the definition of CROW, the one thing we should be careful about pushing for that interpretation is its effect on future surface digging. A few have alluded to it, but I don't think it has been spelt out: As Paul said earlier that CROW could give access "forever" avoiding the need for future access agreements, which is a fair point. However, cavers can "make" new caves, whereas hill walkers can't make new mountains. If a landowner has an uninteresting piece of land with no caves/crags/peaks etc, then the number of folk visiting it is probably low. If he allows cavers to open up a new popular cave and caving is allowed under CROW then there may be many more to the land which he has no control over again (unless the dug cave is defined as a mine...).

I'm a bit concerned about the entrenched views of several officers from different regional councils that seem to be pushing their own agendas rather than taking in the different opinions of the cavers they represent. Surely there is room for compromise to meet the less extreme views of their members?

 

[bograt]

OMG, it appears that this thread has degenerated into the detritus of paranoia and crap it was before I was sober.!!!

Let us please accept the situation and think of how we can progress to the benefit of all cavers,

 

[graham]

OMG, it appears that this thread has degenerated into the detritus of paranoia and crap it was before I was sober.!!!

What? Forty years ago? 

Let us please accept the situation and think of how we can progress to the benefit of all cavers,

What situation? The one where DEFRA and NE maintain the stance that they have held for the past 15 years that the act does not apply to caves and caving?

 

[Bob Mehew]

Lazarus - DEFRA reviewd the mapping process once it was over. One of the comments they made was about the inconsistencies, caused by different areas being mapped by different teams to different standards. Maybe that's why Eldon was excluded but GG was included? But we dont really know

Plausible to a certain extent. Ridiculous from another viewpoint. Like you say we don't know, but I'd go for the view that the exclusion of just two supposedly walled holes against a considerably larger number of other open holes suggests open holes are a feature of the land and thus included within the scope of the act. If they were to be excluded those mappers would have been informed, surely?

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

But the "land" is mapped.

No, in this context, what they were mapping was identifiable boundaries.

And surely thus by definition of the boundaries, identified and hence 'mapped' the land within those boundaries.  Indeed if you look at the on line representation (go to http://www.openaccess.naturalengland.org.uk/wps/portal/oasys/maps/MapSearch and pick any access land), you will see they shade the land to show it is access land.  I believe one of our differences is on the definition of land being 3 dimensional.  I consider the law is perfectly clear on this aspect as I outlined at http://ukcaving.com/board/index.php?topic=16816.msg221812#msg221812.

The act is also not silent on this point in that paragraph 1(s) in Schedule 2 specifically prohibits two activities dependent upon a 3 dimensional definition of the access land.  If it were only meant to apply to the 2 dimensional surface, then the prohibition of hanggliding and paragliding could not be included.

If the drafters of the act wanted to have kept the right of access of the act to only the surface, then they could have easily added the words 'the surface of' to the statement that "...to enter and remain on the surface of any access land for the purposes of open-air recreation...".  I claim that because they did not do so, then access land is 3 dimensional.  Whilst I accept that access land is defined by certain characteristics, which for the category of open country are characteristics associated with the surface, the result of applying that definition then captures all that is on that 3 dimensional land.

The uncertainty lies within the definition of open air recreation.  The phrase open-air only applies to recreation and not to access land. The opinion deals with the definition of open air recreation which is another point which Graham and I disagree on.

 

[Ed W]

I have to say I find the whole mapping argument a little lame.  In practical terms surely the issue is whether the entrance lies on access land, not the cave beneath.  In terms of precedence, all of the access agreements I can think of currently in use relate to access to the entrance of the cave.  I can't think of any that go on to state that once in the cave that cavers cannot pass given boundaries onto other peoples land.  The closest I know of to this would be that for Giant's Hole where the landowner asks that cavers do not use Giants as an exit for through trips from Oxlow/Maskhill.  I would also note that CCC Ltd for instance apply access controls to the entrance of Charterhouse Cave, but I am not aware that there is then any difference in access to those portions of the cave lying beyond the land owned by SWT, I am sure that Graham can tell us if CCC have any form of agreement with regards access with the other landowners whose land Charterhouse extends beneath?.

As tot he caves being excluded.  As mentioned above I think it is very significant that these are caves surrounded by walls.  As Graham said, one of the major factors in determining whether land was open or otherwise was in it having an obvious boundary.  I found this out when appealing to exclude a private garden from mapped access land.  The process also exposed just how flawed the original surveying process had been.  The garden boundary was marked by a combination of a hard surfaced track, hedge and wall from the access land, but was still included in it.  On appeal a precise grid reference taken by GPS, accompanied by a marked up 1:10,000 OS map, a lengthy description/statement and CAD drawing of the property were submitted to the Planning Inspectorate.  The appeal was made on the grounds that the parcel of land in question was clearly divided from the access land by said track, wall and hedge.  The Planning Inspectorate refused the appeal after sending out a "surveyor" (I was not allowed to know when they were coming or to meet them) on the grounds that it there was not a clear boundary.  This was "proved" with the evidence of a number of photographs taken some 500m away from the garden.

Naturally I made a further appeal against this decision, which the Planning Inspectorate contested.  An independent surveyor was brought in, who immediately found in my favour.

Given this experience I am not inclined to think that the mapping activity was particularly well thought through, and that inferring intent from the mapped boundaries is speculative to say the least.

 

[graham]

In practical terms surely the issue is whether the entrance lies on access land, not the cave beneath.  In terms of precedence, all of the access agreements I can think of currently in use relate to access to the entrance of the cave.  I can't think of any that go on to state that once in the cave that cavers cannot pass given boundaries onto other peoples land.

Admittedly not English (or Welsh) examples, but pertinent none the less.

When Crag Cave in Co. Kerry, Ireland, was developed as a show cave, it was found that the proposed route did, indeed, cross under somebody else's land and had to be altered to prevent that happening.

When the entrance to Pol an Ionain, in Co. Clare, was sold, also for such a development to take place, an independent 3rd party purchased the land over the main chamber and refused permission for the development. This one ended up in court in Dublin (I was there) and revealed a hell of a lot of very murky goings on.

Now, the only reason that these cases were contested was that there were, obviously, commercial considerations (one of the parties in the second case was motivated by conservation, though, not money) but were there to be an issue, over, say, compensation following injury or somesuch, I have little doubt that the matter would very much be addressed in England (or Wales).

 

[Duncan Price]

Now, the only reason that these cases were contested was that there were, obviously, commercial considerations (one of the parties in the second case was motivated by conservation, though, not money) but were there to be an issue, over, say, compensation following injury or somesuch, I have little doubt that the matter would very much be addressed in England (or Wales).

Whilst I am reluctant to add weight to Graham's arguments, he and I have discussed this in the context of British caves.  For example, parts of Swildon's Hole lie (as best we can establish) under several private residences and therefore cavers visiting Swildon's 4 are technically trespassing.  Another cave on the Mendips that I was surveying came close to being under someone's property who didn't want us being there (turns out it didn't actually lie under their land).  This is a whole can of worms best left unopened, but not, as a far as I see it a stumbling block to formally recognising  caving as a ligitimate activity covered by CRoW.

During the late '80s and early '90s I used to go to NCA, regional council and BCRA meetings as a club rep/observer.  My dim recollection of the culture of NCA/regional councils was that they were all for making access to caves as easy as possible for all cavers.  BCRA council seemed to be diametrically opposed to this view.  I would suggested that when BCA was constituted the same players ensured that the latter view replaced the former pro-CRoW stance.  The fact that caving was not specifically included in CRoW just provided sufficient inertia for this shift.

 

[Bottlebank]

Lazarus - DEFRA reviewd the mapping process once it was over. One of the comments they made was about the inconsistencies, caused by different areas being mapped by different teams to different standards. Maybe that's why Eldon was excluded but GG was included? But we dont really know

Plausible to a certain extent. Ridiculous from another viewpoint. Like you say we don't know, but I'd go for the view that the exclusion of just two supposedly walled holes against a considerably larger number of other open holes suggests open holes are a feature of the land and thus included within the scope of the act. If they were to be excluded those mappers would have been informed, surely?

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

But the "land" is mapped.

No, in this context, what they were mapping was identifiable boundaries.

And surely thus by definition of the boundaries, identified and hence 'mapped' the land within those boundaries.  Indeed if you look at the on line representation (go to http://www.openaccess.naturalengland.org.uk/wps/portal/oasys/maps/MapSearch and pick any access land), you will see they shade the land to show it is access land.  I believe one of our differences is on the definition of land being 3 dimensional.  I consider the law is perfectly clear on this aspect as I outlined at http://ukcaving.com/board/index.php?topic=16816.msg221812#msg221812.

The act is also not silent on this point in that paragraph 1(s) in Schedule 2 specifically prohibits two activities dependent upon a 3 dimensional definition of the access land.  If it were only meant to apply to the 2 dimensional surface, then the prohibition of hanggliding and paragliding could not be included.

If the drafters of the act wanted to have kept the right of access of the act to only the surface, then they could have easily added the words 'the surface of' to the statement that "...to enter and remain on the surface of any access land for the purposes of open-air recreation...".  I claim that because they did not do so, then access land is 3 dimensional.  Whilst I accept that access land is defined by certain characteristics, which for the category of open country are characteristics associated with the surface, the result of applying that definition then captures all that is on that 3 dimensional land.

The uncertainty lies within the definition of open air recreation.  The phrase open-air only applies to recreation and not to access land. The opinion deals with the definition of open air recreation which is another point which Graham and I disagree on.

I'm not convinced the Act is considering the land in a three dimensional way at all, I don't believe it prohibits flying over or even necessarily landing on Access Land, I thought it simply prohibited carrying a hang glider or paraglider across Access Land and launching?

 

[Alex]

How the heck would those landowners know you are under there land infact how would the caverss know they crossed the boundary. Tripe and irrelivant.

As for walls around cave entrances making them not access land is also irrelivant as in most cases those walls are simply there to stop the sheep falling down.

 

[graham]

How the heck would those landowners know you are under there land infact how would the caverss know they crossed the boundary. Tripe and irrelivant.

They'd know as the rescue call-out came & you were trapped under their land by a boulder collapse. I hope I don't have to spell out all the possible ramifications of this, but I suspect I might

As for walls around cave entrances making them not access land is also irrelivant as in most cases those walls are simply there to stop the sheep falling down.

So that'll be why Eldon Hole was cut out from the mapping then, to stop the sheep trespassing. Interestingly it appears that Manor Farm Swallet, the entrance of which is surrounded by a wall, might have been cut out of the mapping in the same way. This needs close checking on site with a (very) large scale map.



.

 

[Bottlebank]

How the heck would those landowners know you are under there land infact how would the caverss know they crossed the boundary. Tripe and irrelivant.

As for walls around cave entrances making them not access land is also irrelivant as in most cases those walls are simply there to stop the sheep falling down.

The starting point for this debate on both sides isn't "How can we break the law" or "It doesn't matter if we break the law", it's "Does this law apply to us?".

Not many people would feel it was OK for a burglar to break into a house provided he wasn't spotted?

 

[tony from suffolk]

I wonder how many cavers are stopped in their exploration of, say, Swildon's, by the fact that they are moving into property over which they have no legal right to intrude on, and are thus trespassing? This form of trespass happens all the time in caving, as it does on public footpaths. I am allowed to walk on the latter, but not stop. If I move to the side a bit too much to let someone pass, I'm theoretically trespassing.

We all inadvertently break the law in one way or another; let's not start listing these things out or we'll be here forever.

 

[Pie Muncher]

One for Tony,
I'd wager a quid pro Crow loose out as there appears to be a lack of consideration.

 

[Bottlebank]

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.

Hi Simon,

Well Trinkhopping certainly doesn't appear on the list of included activities (which does exist BTW), and nor is it excluded. It looks as though the governing body for Trinkhopping also failed to lobby effectively for it's inclusion. Or perhaps like caving it was considered an activity that didn't take place on Access Land and could therefore be safely ignored?

I'm puzzled by one thing, I googled "Trinkhopping" without success - knowing you I'd expected to find it was an extreme form of Morris Dancing?

Is the spelling correct or has predictive text kicked in and accidentally created a light hearted moment in our love/hate relationship?

Cheers!

Tony

 

[bograt]

A valid example of this kind of thing in England;

When we connected Peak Cavern to Speedwell the owner of Speedwell (show cave) was very upset and tried to ban access through the link, the duchy of Lancaster (owners of Peak) then looked at the maps and discovered that Speedwell show cave was operating under their land, after a bit of negotiation the situation was resolved.

P.S. The owners of Speedwell show cave now have the lease on Peak Cavern show cave and access for cavers is amicable, I suspect they sought advice from DYO.

 

[Badlad]

I'm sure this principle of English law has been brought up before.  It was quoted by the chairman of the Central Council for Physical Recreation (for runner to the Sport and Recreational Alliance of which BCA is a member)

?England, it may be said, is not a country where everything is forbidden except what is expressly permitted: it is a country where everything is permitted except what is expressly forbidden.?

Caving is not among the list of exclusions within the Act.