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

[graham]

Badlad.

Like so  many others on here, you need to understand how the English legal system works.  Ms Rose has produced her opinion and it rather supports the expectations of her clients.  Another brief would bring another opinion from another QC.

If we had an inquisitorial system like France, then the judge's view might well be conclusive,  but as others have noted until this is tested in court, it has no status.

I am aware of her CV but that does not mean that I have to accept her opinion without challenge. I am unimpressed that there is no mention in this document of so many points that, if she did deem unimportant then she does not saywhy. There is very llittle reference to other relevant legislation and none to case law.

Maybe another legal opinion will come along soon.

 

[Badlad]

Hmm, not all those people worked as hard as they might have done (I am not including the Roses in this).

Ms Rose states:

7. It is easy to see why Parliament was not intending to permit the public to access buildings. It is much harder to see why it should have been concerned to permit access only to locations with a view of the sky, or unconstrained air. Caving is an activity of the same kind as climbing, abseiling, scrambling, canyoning and walking, all of which are obviously intended to be included within CROW. There does not appear to be any policy reason for excluding caving from the scope of the Act.

She has clearly not been made aware, by those who briefed her, of two salient points. Firstly that caving is permitted under the Scottish legislation that went through at the same time. This clearly demonstrates that caving wasn't simply forgotten by the parliamentary  draughtsmen. Secondly, caving was not included in the act appertaining to England and Wales because NCA (as was) actively lobbied at the time for it to be excluded. I know this because I attended some of the relevant meetings when the then NCA C&A Officer was unable to do so himself. Now I know that some, including Jenny Potts, have recently been trying to re-write this inconvenient piece of history but I am afraid it is true. I was there. I am not the only one.

I am of the opinion that had Ms Rose been properly briefed then she may well have come to a completely different conclusion.

You state in this quote above that not all those worked as hard as they might have done.  A reference to those of us who put the brief together I presume.  Firstly because you believe that she was not briefed on the Land Reform (Scotland) Act 2003 which she was.  And secondly because you don't believe she was briefed on the various responses to the consultation.  Again she was.  Perhaps it would be better to get your facts right first before demeaning the work of others.

And again, if you think that there is any relevant material that hasn't been submitted then please let me have it and I can pass it on for comment.

 

[bograt]

It would seem that none of us has an understanding of how the English legal system works except for graham, who persistently points out the lack of case law references. Could this perhaps be because there has not yet been a relevant case ??
In the situation of a lack of precedence, the judge will take counsel from a suitably qualified legal professional.
As Graham has pointed out, if a situation comes to court it will be barrister vs barrister, a QC's advice would carry a lot of weight.

Graham's evidence has been quoted many times

Mainly by graham  :-\


By the way, I would also like to offer my thanks to all those involved in reaching this stage, especially Dinah, please pass it on Dave.

(Why doe's the phrase 'Herding Cats' keep springing to mind?)

 

[martinm]

To confirm, this topic has now quoted from my personal correspondence with Natural England without my permission.

Whilst I gained the permission of NE to share that correspondence with BCA, a fact that was passed on to BCA, I did not get the permission of NE to share that response on a public forum such as this.

For those of you that do not know, kdxn is my email moniker and I am Kevin Dixon from York, a member of BPC and CPC.

Do I now chastise those members of BCA privy to my correspondence who have chosen to air it publicly when permission from Natural England for such was never requested or given ?

Enough said.

Many thanks to Dinah Rose for the opinion which I consider to be well argued and touches upon my earlier public statement about the interpretation of what is 'open air'. I know that a QC's time is very valuable and British Caving has been given a lot of value with this opinion. There are those that will disagree with it but ultimately it needs to go before the relevant Minister and their department for evaluation as to whether it should require a clarification of the law. Until that happens, we have to continue as is.

Hear, hear. As I've said before recently, BCA are having a national C&A meeting on 16th. August where many regional conservation officers (including me) will be getting together to discuss matters like this.

I can't understand why some people seem to be against these discussions to make access to our caves easier, esp. on CRoW land. (I do know certain reasons, but will not go into them on a public forum.) We are all (or have been) active cavers, so we should be all working together in the same direction for the same cause, to reduce hassle about access to caves where possible, esp. on public access land while not being detrimental to conserving them for future generations.

I won't be on here till Saturday as I have practical conservation work to do tomorrow, instead of arguing semantics or whatever on here. See you then! 

 

[graham]

Graham's evidence has been quoted many times

Mainly by graham  :-\

Which is strange, because many other people seem to have been in possession of this very clear advice from either Defra or NE but markedly reluctant to quote it.  :-\

Probably because they have been wishing it didn't exist. 

 

[caving_fox]

Many thanks indeed to Dianh, and all those who provided as much information as possible to her. I'm very sure her opinion, and I'm off to read it in detail later, outranks that of anybody on the internet, random quotes included.

We shall all await with much interest the way our national body chooses to interpret this opinion. I hope that they shall make a clear pronouncement in a speedy manner to all associated clubs, rather then reply on the internet to spread 'information'.

I'm sure the current conservation approach of gated and led trips to the more delicate systems will remain in place for the meantime.

 

[David Rose]

Graham, the point is that in the view of Dinah Rose QC, who if you care to do some research (just for once!) you will easily confirm is one of the country's most eminent public/administrative law experts, the earlier advice circulating within Defra and NE is mistaken. Indeed, in her view, that advice does not reflect the will of Parliament when it passed the Act and is of itself irrational.

You can argue about the differences between the French and English legal systems all you like, but the fact that someone of her eminence and experience has reached these conclusions is an important event. And I assure you, she would not be risking her own reputation by issuing an opinion - a document that can and will be widely quoted - that disregarded contrary arguments because she had been instructed by cavers. Barristers are not simply "hired guns": they have an overriding "duty to the court" and to the integrity of the system.

Your attitude seems to be: others still disagree with this (well of course they do - we are seeking to overturn what has been the status quo); she might be wrong; and so this opinion makes no real difference.

Actually it does. A very big one. Like it or not, a door has been opened, and we cannot pretend all is at it has been since the Act came into force in 2000.

 

[JJ]

From Dinah's opinion "There are, however, at least two instances (Eldon Pot in Derbyshire, and Marble Steps in Yorkshire) in which the cave entrance has been excluded (for unknown reasons) from the area identified as open country on the map."

I don't think the reasons are unkown. I strongly suspect that both areas were mapped as woodland (possibly incorrectly), so nothing to do with the caves that they contain.

Oh - and congratulation to all that have worked so hard on this. 

 

[Andy Sparrow]

The reason why Graham and some other Mendip cavers are so opposed to access under CROW is, I believe, as follows....

There are major Mendip caves on access land, including GB and Upper Flood.  There is a worry that if access is confirmed under CROW that what may follow is obligatory removal of gates from these and other systems. 

Personally I think it's one huge and very improbable leap from access under CROW to open cave entrances, to the forced removal of cave gates by the powers that be.  It's especially unlikely since CROW allows a restriction of access to vulnerable sites, which these caves indisputably are.

I think that is why a handful of Mendip cavers are taking such vehement anti CROW access stance.  It seems rather mean spirited to me that a potential right of access to caves on the open moors of the north should be denied by cavers living 200 miles away on the basis of this highly improbable scenario. 

But then again perhaps I am wrong, and their nightmare scenario might actually happen.  What do others feel about this? 

 

[martinr]

The reason why Graham and some other Mendip cavers are so opposed to access under CROW is, I believe, as follows....

There are major Mendip caves on access land, including GB and Upper Flood.  There is a worry that if access is confirmed under CROW that what may follow is obligatory removal of gates from these and other systems. 

Personally I think it's one huge and very improbable leap from access under CROW to open cave entrances, to the forced removal of cave gates by the powers that be.  It's especially unlikely since CROW allows a restriction of access to vulnerable sites, which these caves indisputably are.

I think that is why a handful of Mendip cavers are taking such vehement anti CROW access stance.  It seems rather mean spirited to me that a potential right of access to caves on the open moors of the north should be denied by cavers living 200 miles away on the basis of this highly improbable scenario. 

But then again perhaps I am wrong, and their nightmare scenario might actually happen.  What do others feel about this?

I'm not entirely opposed to CRoW. However, I am concerned that some delicate caves will be put at risk. The open-access proponents say "don't worry, those caves can be protected"

I'd be a lot happier if they would explain, in some detail, what the process of protecting such sites would be. For eg, if CRoW can be used to limit access in some way, what is involved in getting this protection in place? Which part of the Act helps to do this, how is it engaged, how long would it take, who decides, how is it imposed, etc?

 

[TheBitterEnd]

Well said Andy!

MartinR - this http://ukcaving.com/board/index.php?topic=16672.msg218775#msg218775
and this http://ukcaving.com/board/index.php?topic=16672.msg218862#msg218862 are a good place to start

 

[Bottlebank]

The reason why Graham and some other Mendip cavers are so opposed to access under CROW is, I believe, as follows....

There are major Mendip caves on access land, including GB and Upper Flood.  There is a worry that if access is confirmed under CROW that what may follow is obligatory removal of gates from these and other systems. 

Personally I think it's one huge and very improbable leap from access under CROW to open cave entrances, to the forced removal of cave gates by the powers that be.  It's especially unlikely since CROW allows a restriction of access to vulnerable sites, which these caves indisputably are.

I think that is why a handful of Mendip cavers are taking such vehement anti CROW access stance.  It seems rather mean spirited to me that a potential right of access to caves on the open moors of the north should be denied by cavers living 200 miles away on the basis of this highly improbable scenario. 

But then again perhaps I am wrong, and their nightmare scenario might actually happen.  What do others feel about this?

I'm not entirely opposed to CRoW. However, I am concerned that some delicate caves will be put at risk. The open-access proponents say "don't worry, those caves can be protected"

I'd be a lot happier if they would explain, in some detail, what the process of protecting such sites would be. For eg, if CRoW can be used to limit access in some way, what is involved in getting this protection in place? Which part of the Act helps to do this, how is it engaged, how long would it take, who decides, how is it imposed, etc?

And there are those of us in the North who worry that there will be a negative impact on landowner/caver relations, leading to problems getting digging permission for example.

Like Martin I'd be a lot happier if the open access proponents can explain how this can be avoided, rather than simply dismissing the problem.

 

[martinr]

MartinR - this http://ukcaving.com/board/index.php?topic=16672.msg218775#msg218775
and this http://ukcaving.com/board/index.php?topic=16672.msg218862#msg218862 are a good place to start

Thanks BE

I'd still like someone / anyone to explain, in some detail, what the process of protecting delicate sites would be. For eg, if CRoW can be used to limit access in some way, what is involved in getting this protection in place? Which part of the Act helps to do this, how is it engaged, how long would it take, who decides, how is it imposed, etc?

 

[TheBitterEnd]

On the second link I posted is a link (http://www.naturalengland.org.uk/Images/RAG%20V4%20for%20website_tcm6-12375.pdf) to the detailed NE procedure. I can't really see how anyone can give you more detail than that. AFAIK that IS the procedure.  :read:

Which part of the act?  Section 26 subsection 3a allows for exclusion or restriction of access for "the purpose of conserving flora, fauna or geological or physiographical features of the land in question".

 

[martinr]

Thanks TBE

The guidance document for implementing an access restriction under CRoW runs to a mere 221 pages.

Something makes me think this is going to be neither simple nor swift.

 

[graham]

The reason why Graham and some other Mendip cavers are so opposed to access under CROW is, I believe, as follows....

There are major Mendip caves on access land, including GB and Upper Flood. 

GB is not on access land. Neither is Charterhouse, Rhino Rift or Longwood Swallet  - or indeed Longwood Valley Sink.

 

[TheBitterEnd]

I think pages 26 to 33 are the bit you want

<edit>
As far as timescales go, it's not too bad:

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.

 

[Stu]

... but as others have noted until this is tested in court, it has no status.

Is this actually true? Judges don't make or change laws - it's not the job of the judiciary to do that. Sure if a case came up i.e. caver x v landowner y there might be precedent set but from what I gather we, the pro-access lobby, are after is a change in law. Which comes from the legislative arm of government. Similar to the process I believe to be happening in the Welsh Assembly. 

So bandying about "until it's tested in court" is a falsehood...

 

[TheBitterEnd]

Stuart, courts interpret the law and as you say sometimes set precedent. So in a case of Landowner v.Caver for trespass, for example, the court would have to decide if the caver was exercising their right of access under the CRoW act. What Dinah Rose is saying is that there is a strong argument that the court would decide that a caver in a cave on access land is excising their right to roam and so is not trespassing.

It's not about a change in the law but about how the law is applied where there is ambiguity.

 

[martinr]

I think pages 26 to 33 are the bit you want

<edit>
As far as timescales go, it's not too bad:

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.

Thanks, you beat me to it (I was just about to post)

So, we are talking about  4 months to make a decision (because it's a a long-term restriction).