CROW case: another positive development

[David Rose]

In my report to the recent BCA council meeting, I stated that the Welsh Government, NRW, NE and Defra were playing silly buggers in refusing to make disclosure of the documents setting out the course of events that led to the decision we are challenging - not to let cavers take part in its access reform group on the grouns that caving isn't covered by CROW.

Our lawyers contested this in an approach the High Court, arguing we had to see the documents before we amended out claim, and I've just been told that we've won. The court's order is attached. They have to give us the material by 26 April. The order also sets out a timetable for what has to happen then. By 28 June we should be on the last lap before the hearing, which has been listed to last a day and a half.

This is welcome news.

 

[ChrisJC]

I have no idea what it all means, but it is excellent in both that it is a step forward, and somebody who understands the process is doing this great work on our behalf.

Chris.

 

[Goydenman]

great work team thanks...many cavers will appreciate your work and the success you are having so far

 

[Speleofish]

Sounds promising.. Well done so far!

 

[Dave Tyson]

This is excellent!  NRW have consistently failed to provide any justification for CRoW not applying to caving, so it will be good to see their evidence and arguments. My guess is these will be very weak and the court will rules against them.

Dave

 

[Ian Adams]

Excellent 

 

[braveduck]

The problem Wales may have here ,is how to prevent the names of their "advisers" being revealed. Watch out for redactions . 

 

[Stuart France]

The immediate problem the Welsh Government etc have got is being ordered by the Planning Court to hand over all documents relevant to our legal case within about two weeks.

Simon Pickering is the senior civil servant running the Welsh access reform programme. He did not use 'policy' in his letter to me as one of his reasons for excluding caving from the programme.  But Pickering's court witness statement then discussed the existence of a long-standing narrowly cast cave access policy, said to be based on public sector interpretation of the CROW Act and nothing else. The Appeal Court judge noticed this mis-match and then in effect speculated that 'policy' was the unstated reason for caving's exclusion and it was such a big decision that it should have been made by the Minister herself, which would open it to challenge, or alternatively if the Minister did not make it then her impermissible delegation of it to Pickering was also actionable.

I think the policy of denying CROW caving access rights by arguing very publicly over the semantics of what the undefined term 'open-air recreation' in the CROW Act means must be described in written documents which the Defendant, Interested Parties and predecessor organisations have developed over many years to avoid airing private concerns, justifiable or otherwise, which they do not wish to admit having, exposing such to challenge, knowing their grounds for imagining horrid things happening in caves that they cannot go and check up on for themselves are really quite flimsy.  It's as basic as this:  caves are hidden territory unlike all other kinds of CROW Access Land; the authorities imagine the worst; so they play safe and discourage access by whatever means - but know they can't sustain such a position if put to proof.

Thus the other side seems very keen not to disclose anything to us but find themselves at the top of the Court's to-do list, having no choice now but to hand over everything relevant to our case so that it can be recast to reflect the contents of Pandora's Box when it arrives.  This will subject the various actions and inactions of the public sector players, including their CROW Access Land policy as applied to caves, any justification or legal basis for it, plus of course their semantic ideas to judicial scrutiny.

 

[Fjell]

The CRoW Act is severely restricted compared to Scottish legislation. It?s not just caves, it?s rivers and lakes and indeed flying through the air, which you would think has low land impact as long as your approach speed is under control. It doesn?t allow cycling or horse riding. None of this was an accident, it was excluded as a right rather than with permission.

There are good and bad reasons it was excluded. The pressure on land in England is enormous compared to Scotland, where believe me you can wander lonely as a cloud for days without seeing anyone in large parts of it.

So what is required is legislative change, and that requires a large chunk of consultation again. It?s not impossible, but I very seriously doubt if caving on it?s own can do that. I still believe it can be best done via proposed changes in land management in the context of public good.

As an example, if a landowner blocks a cave entrance (but incorporates a handy bat entrance), what would the position be? Do cavers have a right to excavate it? You certainly don?t have the right to dig up fells and crags. This is the sort of thing that exercises the minds of civil servants, lawyers and quangos. You can see why they would think it best left alone. And if pushed they might well do something unfortunate.

Trespass isn?t even a crime. On CRoW land you have the right to walk into an entrance for sure. I have not got the slightest doubt I can go caving on CRoW land with zero risk of anything happening to me. Landowners know this too, hence the current situation in the Dales where the access controls merely manage numbers for largely our own convenience. The only actual issue you have is no right to dig holes in people?s land, and nor do you in Scotland or anywhere else. So right of access is moot, you are still left with getting on with landowners to satisfy your Mad Baggins digging obsession.

 

[mikem]

Flying through the air tends to panic livestock. However, caving isn't specifically excluded, unlike the others you mention.

 

[Fjell]

It?s allowed in Scotland, and they have sheep too. The point is that it is a choice, and not one made in England to date.

What is important about the Scottish legislation is that the basic principle is that it is a ?no dickheads? approach. People are supposed to behave reasonably to other people, things are not absolute. Don?t mess with other people?s stuff or livelihood.

England is not a dickhead-free zone. Incredible numbers think it is OK to have a picnic and just walk away leaving your rubbish on the ground. Abandon cheap tents after a night away. Crap in reservoirs. It verges on mental illness, and it?s not just young people. I don?t know what the solution is.

 

[mikem]

Indeed, I was just adding another impact that it has (apart from crashing) - there is also a much greater density of livestock in England than Scotland, as well as people.

 

[Fjell]

Hitting a drystone wall seems to be the main hazard round here. Painful.

 

[mikem]

I guess that the Scottish ruling parties also aren't actually supported by their main landowners as much as the English government are, & therefore aren't so worried about upsetting them.

 

[Fjell]

CRoW was under a Labour government. A lot of the opposition comes from environmental and other quangos like the National Parks. People have different ideas what is the thing.

Organisations like the Ramblers threw everyone else under a bus. The BMC fought a vicious rearguard action to get climbing included. On the basis that climbing is just steep walking I believe.

 

[cavemanmike]

The BMC fought a vicious rearguard action to get climbing included. On the basis that climbing is just steep walking I believe.

Caving is just underground walking (sort of)

 

[Bob Mehew]

Organisations like the Ramblers threw everyone else under a bus. The BMC fought a vicious rearguard action to get climbing included. On the basis that climbing is just steep walking I believe.

From what I have read about the passage of the bill, I don't think either assertion is true.  What did help both the Ramblers and BMC was having vocal people in the House of Lords to press their case.

The CRoW Act is severely restricted compared to Scottish legislation. It?s not just caves, it?s rivers and lakes and indeed flying through the air, which you would think has low land impact as long as your approach speed is under control. It doesn?t allow cycling or horse riding. None of this was an accident, it was excluded as a right rather than with permission.

The then PUSS, Chris Mullin, said during the committee stage debating the CRoW bill that "We are trying to allow everything that is not specifically excluded", see third response by Mr Mullin at https://publications.parliament.uk/pa/cm199900/cmstand/b/st000404/am/00404s06.htm .  That comment is, under the rules of interpreting English law, a valid statement which can be considered by a court in interpreting an act.  The problem was that NCA did not counter the objections being raised by some cavers, so the civil servants took a status quo position of considering that is was not covered.  (Unlike Scotland where a positive statement was made by cavers to the civil servants who then took it on board and put a clear statement into their statute that "Access rights are exercisable above and below (as well as on) the surface of the land".)