Ignorance of the law is no defence, right?

Ian Adams

Active member
Ignorance of the law is no defence, right?

The recent opening of a new cave entrance at Twll Du highlighted a rather obvious problem ? how does a person know to check for something if they don?t know they need to check for something?

It caught out the club I am a member of where a landowner gave us permission to dig and, unknown to us, the land was SSSI. We received a visit from the police (seeking to prosecute us, not the landowner).  Ultimately it was amicably resolved. But it never should have happened, right again?

It seems evident from the chain of events that the Twll Du pioneers had no idea it was on the site of an ancient monument (or within a buffer ? whatever that means).  Prior to this ?trouble? I would never have thought to check because I would never have considered such a thing. In this case, I would have found myself face-to-face with another police officer.

To be very blunt, it peeves me that ?we? can be prosecuted for something that we could not know and could not have known. How would an ordinary person even know to check for such a thing? I consider the legislation that precludes ignorance in these cases to be iniquitous.

Before you jump to any conclusions, how many people know of the existence of ALL the various bodies that you should consult with beforehand?  I would be impressed if it is more than a small handful among us. I certainly don't.

I came across rather a neat little list of such ?bodies? (or authorities). I am not the author; it belongs to an archaeological group. They use it whenever they visit any new sites.

Although the list isn't exhaustive, I think it may well be complete and certainly I think it is useful information that we might all benefit from. It ought, at least, to keep Mr Policeman away.

Obviously, it would be helpful to add anything missing and/or remove anything now redundant (or not applicable to caves/mines).

I thought it would be good to share it ?.

;)

Ian


Checklist of potential responsibilities;

? Landowner Permission
? Confirmation that the land is owned in ?Fee Simple?
? Any restrictive covenants
? Any SSSI classifications
? Any AONB classifications
? Any existing planning permissions, restrictions or conditions
? Is the site part of a protected landscape area (PLA)
? Is the site within a conservation area
? Any scheduled monuments within the land ownership
? Any restrictions on land exploration by the water authority, Woodland Trust, PAWS, DEFRA, Welsh Government Agricultural department, CADW, The County Council, The Forestry
 

langcliffe

Well-known member
That is a very useful list, but it should probably differentiate between tenant and landowner. I know, for example, that the National Trust like to be involved in any decisions pertaining to digging on their Upper Wharfedale Estate, as well as the tenant.
 

Roger W

Well-known member
Also involved here, when the digging is done from within the cave, is the need to know exactly where you are in relation to all the surface features involved.

Did the guys who dug Twll du know where they were going to come out, and what they were likely to hit when they did so?
 

Rhys

Moderator
Thanks for that Ian. Potentially a very helpful list.

It's certainly unfortunate that, in your case, landowner permission was given but things still went wrong. There was a similar case in the south in recent years which turned out to be an SSSI and, as I understand it, landowner/tenant permission had been given. Mostly the landowner or tenant will be aware of statutory protections on their land, but clearly it isn't always the  case.

You have referenced Twll Du in your post and its relevance probably needs putting in context; the first bullet point in your list is landowner permission. As we understand it, that was not granted at Twll Du. Had the landowner been consulted and provided with a location they could probably would have pointed out the risks of damage to the protected monument as they do seem to be aware of its extents. This embarrassment could've been averted!
 

manrabbit

Member
I'd have also assumed that ignorance offers no defense, then a traveller drives a digger through Offa's dyke flattening 50 yards of it and the courts let him off because he didn't know what it was. Cadw were also involved with this and seemed powerless to do anything.

https://www.walesonline.co.uk/news/wales-news/travellers-accused-flattening-50-yard-5740359
 
manrabbit: The Offa's Dyke case was several years ago; the latest Welsh legislation removing the defence of ignorance was in, I think, 2016. Perhaps the two are connected?

This map [ http://map.whoownsengland.org/ ] is interesting, if not yet of much use to cavers except for some Forestry Commission (England) and National Trust land. It might be more use if the water companies added their holdings - Welsh Water, for instance, I seem to remember, is something like 7th largest landowner in Wales, but I couldn't find any list, or map, of their holdings. Not to mention a few Dukes...
 

Pitlamp

Well-known member
Roger W said:
Also involved here, when the digging is done from within the cave, is the need to know exactly where you are in relation to all the surface features involved.

Did the guys who dug Twll du know where they were going to come out, and what they were likely to hit when they did so?

That thought occurred to me as well. I've not followed the particular incident in question as I don't cave in Wales but my understanding is the entrance was largely dug from inside. (Please somebody correct me if I'm wrong.) What immediately went through my mind was how deep does national monument status apply? At what point would you be interfering with a feature with such protection by going about your legitimate caving activities?

I suspect that if such an incident did ever go to court then those legal professionals involved in sorting it out would make allowances for all such factors.
 

royfellows

Well-known member
SAM designation extends all the way to the centre of the earth as I have been told by CADW. The 'centre of the earth' concept could though possibly be challenged in the light of some recent decisions. for what use this is.
 

Pitlamp

Well-known member
Thanks Roy - if it does apply all the way to the centre of the earth then I suppose cavers' delvings in other parts of the country could inadvertently be breaking the law in certain circumstances, albeit completely unintentionally. That's certainly something worth keeping in mind. I'm glad we have very few of these designations in our upland Dales caving area.

Caving used to be such a simple activity - a good way of briefly escaping all the hassles in life. Nowt ever seems to be simple these days.
 

Rhys

Moderator
I think that if you're at depth and your activities genuinely don't have an effect on the surface, although technically illegal, you probably don't need to worry. Pragmatism and common sense would be applied. It wouldn't be worth pushing for a prosecution. However, if you break the ground surface or cause collapses at the surface, you do need to worry!
 

Bob Mehew

Well-known member
Rhys said:
I think that if you're at depth and your activities genuinely don't have an effect on the surface, although technically illegal, you probably don't need to worry. Pragmatism and common sense would be applied. It wouldn't be worth pushing for a prosecution. However, if you break the ground surface or cause collapses at the surface, you do need to worry!
WRONG.  If the cave is a SSSI, then you are likely to need permission to dig within cave.  (Though I concede the topic is more complicated than that simple statement, but it is a good starting position.)  As I recall many of the Dales caves are SSSIs and are so caught, see http://darknessbelow.co.uk/digging-on-sssi-cave-sites/
 

Rhys

Moderator
I was particularly thinking of a surface related historic monument when I commented. Cave or mine related features, SSSI or historic would be a problem!
 

Badlad

Administrator
Staff member
I noticed the map published in the latest Cambrian newsletter.  It shows a Draenen survey in relation to the surface and other SAM areas.  It would appear that several other well reported digs, it quotes Yellow Van and Last Sandwich, are also within the boundary of a SAM.  These also have different landowners to those where the entrances are located.  It sounds like even the 'legit' Draenen diggers might be in trouble.  What a bag of worms.

I've never been to the cave BTW, but never the less look on with horror  :(.
 

cap n chris

Well-known member
Indeed. Correct me if I am wrong but it is my understanding that it is the landowner (not the diggers) that need to apply for SSSI permission to dig. Ascertaining who the landowner is, with survey-to-surface inaccuracies, is a moot point.
 

Bob Mehew

Well-known member
Rhys said:
I was particularly thinking of a surface related historic monument when I commented. Cave or mine related features, SSSI or historic would be a problem!
Sorry but that is not a safe assumption.  Some years ago we found a bone in part of a cave sticking up out of the soil which lead to finding a near complete bear skull.  Fortunately we were aware that that part of the cave we were in lay within a Schedule Ancient Monument (Bone Caves in Assynt) and that the remains were covered by it, even though there was no direct open connection with the surface.  (Our entrance through Rana is some distance outside the SAM's boundary.)  Digging in that area of the cave is a breach of law.  We got permission to bring the skull out and it now sits in the National Museum of Scotland.

My comment about SSSI being a complicated topic is because one of the problems is how the SSSI statement specified what was being referenced.  Often the wording is so vague that it would appear to cover the whole cave rather than just a specific feature.  I fear SAMs are similarly worded. 

The safest position to adopt is to assume the whole cave is caught if a SAM or SSSI or what ever applies until you have done a careful assessment of specifically what has been covered. 

Badlad said:
What a bag of worms.
That just about sums up the whole topic.

 

robjones

New member
SAM boundaries are defined by an appended OS map extract (usually the largest available scale) with a boundary line drawn on it.
 

Jenny P

Active member
Note that some cavers who had opened up access to part of a historic mine site in Derbyshire were told that installing the anchors underground which enabled them to access the lower reaches could be considered to be a breach of the SAM regulations.  Has to be said they didn't know when they did this that it was a SAM and the matter wasn't followed up.

So even doing something entirely underground in a SAM could catch you out.
 

Ian Adams

Active member
Really sorry, I just noticed that the "cut & paste" failed ... here it is in full ....


Checklist of potential responsibilities;

? Landowner Permission

? Confirmation that the land is owned in ?Fee Simple?

? Any restrictive covenants

? Any SSSI classifications

? Any AONB classifications

? Any existing planning permissions, restrictions or conditions

? Is the site part of a protected landscape area (PLA)

? Is the site within a conservation area

? Any scheduled monuments within the land ownership

? Any restrictions on land exploration by the water authority, Woodland Trust, PAWS, DEFRA, Welsh Government Agricultural department, CADW, the County Council, The Forestry Commission, National Resource Wales, Natural England, The Heritage Lottery Fund or any other known official body

? Is the land correctly registered with the land registry in respect of boundaries of ownership, maintenance responsibilities, title deeds and title plan



To address a couple of points raised above (again, I am not the author);

A tenant is not the landowner. In any event, point "2" overrides any tenant.

The coal authority and MOD would be landowners.

... I am pretty sure the archaeologists were thorough but please do keep discussing the "list", I really do think it is helpful.

:)

Ian


 
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