Access, CRoW and the BCA

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Bob Mehew

Well-known member
[gmod]New topic split out following BCA AGM 2014.[/gmod]

Bob Mehew said:
Simon Wilson said:
But what CRoW has done is render the access agreement completely unenforceable.
Wrong.  They don't have to challenge people at the road head, they can challenge them at the cave entrance.  I assume you are not going to accept that a person found entering the cave is liable to having an injunction taken out against them on the basis that CROW does not cover access within a cave.  (Though I accept it is only likely to be applied to a few people at most.) 

I am going to have to eat humble pie  :-[ and apologise to Simon.  Today some of you might have heard that the BCA AGM accepted a motion stating: "That the meeting authorises the C&A Committee to follow up on CRoW."  This has followed some work done by Tim Allen, Jenny Potts and myself which has completely turned my understanding of CRoW on its head.  I won't describe the details of the meeting but simply put, the Chair was not minded to accept my original proposal as is required under the constitution.  To his credit, he did allow considerable discussion on the topic and eventually gave way when I indicated I would be prepared to accept an amendment to my fairly detailed motion.  Hence the above agreed motion.  I think it does allow BCA to be able to say it is moving to help deal with this topic instead of allowing 'independent' cavers to run with it.  I suppose I should apologise to the new Chair of C&A for handing him this poisoned chalice. 

I would also like to emphasis that we are a long way from getting acceptance by significant bodies such as Natural England and Natural Resources Wales but at least BCA is now starting to take a step or two.  Though I am hoping that it does not get bogged down by procedural matters like those that we spend nearly an hour and a half on today.
 

Ian Adams

Active member
Bob Mehew said:
... simply put, the Chair was not minded to accept my original proposal as is required under the constitution. 


Bob, could you elaborate please ?

(ie. What, specifically, didn't happen that should have done and was "democracy" undermined?)


Ian
 

Les W

Active member
Jackalpup said:
Bob Mehew said:
... simply put, the Chair was not minded to accept my original proposal as is required under the constitution. 


Bob, could you elaborate please ?

(ie. What, specifically, didn't happen that should have done and was "democracy" undermined?)


Ian

Hi Ian,
What wasn't done, as I understand it, was to present the motion within the timescales as laid down by the constitution.
As for democracy being undermined, the Chairman was very aware of democracy when he declined to allow the motion, as proper democratic process had not been allowed.
The revised motion was acceptable by all present and was the proper course of action, IMO.
 

Ian Adams

Active member
Les W said:
... as proper democratic process had not been allowed.


Can you elaborate please Les?

My understanding is that a motion properly presented was to be deferred to a later date (at the chairman's direction) and then (in lieu) passed to a separate committee (which appears to have been inactive for a pro-longed period of time) ....

(and that not everyone was in agreement)

Thanks,

Ian
 

Bob Mehew

Well-known member
Jackalpup said:
Bob, could you elaborate please ?

8.4 of the constitution requires that items for discussion at the AGM should be submitted 9 weeks ahead of the AGM.  However, the meeting can consider any other business but only if it is acceptable to the Chair (see 8.13.f).  My original motion did not meet the 9 week date so the Chair had the power to reject it.  He indicated his preferred approach was to defer the topic to a SGM.  But that has a 12 week calling time which would have meant BCA would be well behind developments.  His other option was to call an EGM which only requires minimum of 2 weeks calling time.  I hope I reasonably reflect the view of the meeting by saying that the need for BCA to be seen to be doing something was of greater value than delaying consideration by as little as two weeks.  Plus only one person at the meeting spoke against taking the original motion at the AGM.  The new motion was acceptable to that person who had spoken against the original motion.  The new motion was passed with one abstention (who was not the person who spoke against the original motion) and no votes against. 

I will perhaps controversially point out that Les W is also the CSCC C&A Officer, so I trust he reflects the likely opinion of CSCC.  He was neither the person speaking against the original motion nor the person who abstained.  I will also state that the Chair did make the point that a range of people from across the UK had approached him to express concern over my original motion.  So it was not just a southern concern.

Whilst I still think a Working Group would be the best way of dealing with this problem, I accepted an alternative suggestion that the existing Conservation and Access Committee could do the work, even though the last time it meet was in September 2009.
 

Ian Adams

Active member
Thanks for that clarification  Bob.

In summary, what is probably the single most important issue in British caving today has been kicked into the long grass ....

Nice  :(

Personally, I really appreciate the (very lengthy) hard work you, Jenny and others have all put into this project and I believe you should be commended for your very positive contribution to caving you have made that was to benefit every caver.

It is a shame that some see fit to do the opposite.

Ian
 

graham

New member
Bob Mehew said:
8.4 of the constitution requires that items for discussion at the AGM should be submitted 9 weeks ahead of the AGM.  However, the meeting can consider any other business but only if it is acceptable to the Chair (see 8.13.f).  My original motion did not meet the 9 week date so the Chair had the power to reject it.  He indicated his preferred approach was to defer the topic to a SGM.  But that has a 12 week calling time which would have meant BCA would be well behind developments.  His other option was to call an EGM which only requires minimum of 2 weeks calling time.  I hope I reasonably reflect the view of the meeting by saying that the need for BCA to be seen to be doing something was of greater value than delaying consideration by as little as two weeks.  Plus only one person at the meeting spoke against taking the original motion at the AGM.  The new motion was acceptable to that person who had spoken against the original motion.  The new motion was passed with one abstention (who was not the person who spoke against the original motion) and no votes against. 

Why is a delay of a few weeks seen as a bad thing on an issue that has, to much of the caving world, seemed to be settled since the act came in over a decade ago? What's so bloody urgent this week?

Bob Mehew said:
I will perhaps controversially point out that Les W is also the CSCC C&A Officer, so I trust he reflects the likely opinion of CSCC.  He was neither the person speaking against the original motion nor the person who abstained.  I will also state that the Chair did make the point that a range of people from across the UK had approached him to express concern over my original motion.  So it was not just a southern concern.

Given that CSCC have not actually discussed the matter nor is Les the CSCC's rep to BCA that is by no means the case. Please do not presume to speak for everyone in this debate Bob, you don't.

Bob Mehew said:
Whilst I still think a Working Group would be the best way of dealing with this problem, I accepted an alternative suggestion that the existing Conservation and Access Committee could do the work, even though the last time it meet was in September 2009.

Yes, indeed the C&A committee should meet and it is a matter of some concern that it has not done so.

On the matter of working parties and legal matters, however, you've got form (not just you, I'll admit) and I'd like to remind you of the NCA (as then was) meeting when one of these reported, after some several years and someone asked for these words to be formally minuted:

"I told you so!"
 

Ian Adams

Active member
graham said:
Why is a delay of a few weeks seen as a bad thing on an issue that has, to much of the caving world, seemed to be settled since the act came in over a decade ago? What's so bloody urgent this week?

.... Because a number of people made a great effort to travel long distances having been advised that the meeting was going ahead with that agenda specifically to debate that point. (And can't make it back on the date suggested).

... It could still have gone ahead ...

Ian
 

graham

New member
Jackalpup said:
graham said:
Why is a delay of a few weeks seen as a bad thing on an issue that has, to much of the caving world, seemed to be settled since the act came in over a decade ago? What's so bloody urgent this week?

.... Because a number of people made a great effort to travel long distances having been advised that the meeting was going ahead with that agenda specifically to debate that point. (And can't make it back on the date suggested).

... It could still have gone ahead ...

Ian

Not including you or me, I note. So, not that urgent, then.
 

Ian Adams

Active member
graham said:
Not including you or me, I note. So, not that urgent, then.

I realise that you have said that in "fun" (and I take it as such).

Just to keep to the point though, there were two people there in my stead and "urgency" isn't my complaint. By not allowing it to go ahead, the issue has effectively been de-railed.

I think that is a crying shame for the state of British caving and a very poor show by the BCA who supposedly act in the best interest of British cavers.

The issue should have been debated properly.

Ian
 

graham

New member
Simon Wilson said:
graham said:
............ an issue that has, to much of the caving world, seemed to be settled since the act came in over a decade ago?

Settled? In what way settled?

In that the law on the subject is perfectly clear, in England and Wales, CRoW has no legal effect on cave access. It's different in Scotland, of course. And you may wish to muse on the fact that we know it is different in Scotland.

The following QA set comes from NE and has also been considered by DEFRA:

The open access rights under the Countryside and Rights of Way Act 2000 are for ?open air recreation? ? see section 2(1). For that reason, even where land is shown on the CROW maps, the legislation did not in our view create any new public rights to use cave systems beneath or within the mapped land. 


?      Do Caves qualify as mapped open country as defined under CROW? 

?      No, except possibly some large open caves on the side of mountains etc. In such cases the experience may remain essentially an open air one, depending on the configuration of the cave.


?      How does CROW apply to exploring natural underground voids? 

?      It does not.


?      Do Cavers have a right to explore natural caves within Open Access Land? 

?      See above. This does not prevent cavers (whether land is CROW-mapped or not) continuing to use particular cave systems, for example where this has been traditional, so long as the landowner continues to tolerate this or has given specific permission to do so.


?      What right do Commercial Cave Instructors have to access caves within CROW land with paid for caving training groups? 

?      None, but see the previous answer. 

Seems perfectly clear - and settled - to me. This is the advice given by the relevant government department and by the relevant organisation that advises the government on these matters.
 

nickwilliams

Well-known member
Jackalpup said:
By not allowing it to go ahead, the issue has effectively been de-railed.

I think that is a crying shame for the state of British caving and a very poor show by the BCA who supposedly act in the best interest of British cavers.

I was there, and I don't think that's in any way an accurate representation of what happened at the meeting.
 

Badlad

Administrator
Staff member
I do have sympathy with the chairman as he was caught between a rock and a hard place.  The mood in the room (apparently a very well attended AGM) was to support the motion.  Certainly other bodies such as the CNCC had convened a special meeting to consider the motion (they had voted unanimously to support it by the way), and everyone had had over six weeks to look at it.  However, I suspect those few who opposed it would have cried 'unconstitutional' and that fear seemed win out over reasoned argument on the day.  The end result is that BCA accepted a much more wishy washy motion to look into it through the C&A committee, which hasn't been active since 2009, and although a number of those likely to be involved will give it their best attention, it doesn't appear to send out the best of signals to interested cavers.

The sad thing is that BCA has been unable to grasp the nettle of this issue for a long time.  Consequently a group of cavers has acted independently to research the facts and have secured a top specialist in public and administrative law to give an opinion on this.  This is happening regardless of BCA action and will carry a lot of weight one way or the other on the argument.  Bob has generously admitted that he has changed his understanding of CRoW, and has been man enough to issue an apology on this forum.  The BCA chairman, who has presumably also consulted widely on the issue, stated at the AGM that he believes CRoW does apply to caving.

So BCA are forced to play catch up where they should be leading from the front.  A look back at the history of this is informative and Jenny Potts has researched this in considerable detail.  In brief, my understanding is this;  Back in the late 1990's and up to the introduction of the CRoW Act, NCA, DCA and all other caver groups were supportive of caving being included in the legislation.  After that period personnel changed and the national body concentrated on the constitutional change from NCA to BCA and all went quiet on the issue.  As the open access land was mapped throughout the naughties cavers began asking questions about their status under CRoW, and these voices have got louder and louder over the years.  The BCA legal office and C&A officer do not appear to have done anything much about the subject other than repeat a mantra that caving did not apply to CRoW.  Even now the BCA legal officer refuses to engage in the discussion.  At the AGM there was murmurings of a vote of no confidence in him and his report to the AGM was pretty much dismissed as a joke - or that's how I read the situation.

I should like to emphasise that we are not campaigning to change any law.  We are arguing that the law as it stands applies to caving.  As this is a matter of law and not national or regional caving policy, I think all cavers will want to know the answer to access under CRoW - one way or the other.  I and others have now informed ourselves well on the subject because there is a hell of a lot of misinformation out there.  We are taking it forward to legal opinion because we don't believe BCA are realistically able to do this.  A number of us have offered our support to BCA both now and into the future and we wait to see if that support is needed.

 

kay

Well-known member
Badlad said:
The end result is that BCA accepted a much more wishy washy motion to look into it through the C&A committee, which hasn't been active since 2009,....

...  The BCA legal office and C&A officer do not appear to have done anything much about the subject other than repeat a mantra that caving did not apply to CRoW.

For those who are unfamiliar with BCA comings and goings, it's worth mentioning that there is a new C&A Officer, so I would expect the C&A Committee to be more active than it has been in the past. The motion may have been heavily modified, but I think it's unduly pessimistic to say, as another poster did, that the topic has been kicked into the long grass, even though I can understand why some people may have seen it that way.
 

Bob Mehew

Well-known member
I would also like to point out that an offer of Pro Bono work had been made a while ago.  Just over a week ago the barrister said that she would be available to do it in June (of this year).  A submission has been sent to her and her opinion is awaited.  (And for Graham's information, that would have gone ahead with or without my contribution.)  As I said at the AGM there are 3 potential outcomes. The 1st is she says no, CRoW does not apply to caving.  The 2nd is she asks for more material and research.  The 3rd is she comes back saying yes it does.  This could be as soon as the end of June.  My sense of urgency was to get BCA into a position where it could by the end of June catch this response and take things forward, so being proactive on behalf of cavers.  My concern is that if BCA does nothing, then 'independent' cavers will quickly take matters into their own hands and make the situation worse.  I understand the Convener of C&A is now looking at setting up a meeting but as he is on holiday, don't expect instantaneous communications.

Re Graham's point about the law being clear, please read http://hansard.millbanksystems.com/lords/2000/sep/27/countryside-and-rights-of-way-bill-1#column_881.  Any open air recreation if not specifically prohibited is permissible.  All I did was to point out that the legal definition of land included not only the surface but also what was below it; a point I (and many others) should have recognised along time ago.  :-[ 
 

graham

New member
Badlad said:
I do have sympathy with the chairman as he was caught between a rock and a hard place.  The mood in the room (apparently a very well attended AGM) was to support the motion.  Certainly other bodies such as the CNCC had convened a special meeting to consider the motion (they had voted unanimously to support it by the way), and everyone had had over six weeks to look at it.  However, I suspect those few who opposed it would have cried 'unconstitutional' and that fear seemed win out over reasoned argument on the day.  The end result is that BCA accepted a much more wishy washy motion to look into it through the C&A committee, which hasn't been active since 2009, and although a number of those likely to be involved will give it their best attention, it doesn't appear to send out the best of signals to interested cavers.

Constitutions exist for a reason, you know.

Badlad said:
The sad thing is that BCA has been unable to grasp the nettle of this issue for a long time.  Consequently a group of cavers has acted independently to research the facts and have secured a top specialist in public and administrative law to give an opinion on this.  This is happening regardless of BCA action and will carry a lot of weight one way or the other on the argument.  Bob has generously admitted that he has changed his understanding of CRoW, and has been man enough to issue an apology on this forum.  The BCA chairman, who has presumably also consulted widely on the issue, stated at the AGM that he believes CRoW does apply to caving.

The Government's advisors and own department disagree, I asked Natural England, that seems to be a sensible piece of research that hasn't been done by others. I suspect their view would carry more weight than most.

Badlad said:
So BCA are forced to play catch up where they should be leading from the front.  A look back at the history of this is informative and Jenny Potts has researched this in considerable detail.  In brief, my understanding is this;  Back in the late 1990's and up to the introduction of the CRoW Act, NCA, DCA and all other caver groups were supportive of caving being included in the legislation.  After that period personnel changed and the national body concentrated on the constitutional change from NCA to BCA and all went quiet on the issue.  As the open access land was mapped throughout the naughties cavers began asking questions about their status under CRoW, and these voices have got louder and louder over the years.  The BCA legal office and C&A officer do not appear to have done anything much about the subject other than repeat a mantra that caving did not apply to CRoW.  Even now the BCA legal officer refuses to engage in the discussion.  At the AGM there was murmurings of a vote of no confidence in him and his report to the AGM was pretty much dismissed as a joke - or that's how I read the situation.

That view of history is not accurate. I know, I was there at the time. As was the BCA's legal officer. Were you?

Badlad said:
I should like to emphasise that we are not campaigning to change any law.  We are arguing that the law as it stands applies to caving.  As this is a matter of law and not national or regional caving policy, I think all cavers will want to know the answer to access under CRoW - one way or the other.  I and others have now informed ourselves well on the subject because there is a hell of a lot of misinformation out there.  We are taking it forward to legal opinion because we don't believe BCA are realistically able to do this.  A number of us have offered our support to BCA both now and into the future and we wait to see if that support is needed.

I have, above, given the government's QAs on the subject. What is not clear?
 

graham

New member
Bob Mehew said:
Re Graham's point about the law being clear, please read http://hansard.millbanksystems.com/lords/2000/sep/27/countryside-and-rights-of-way-bill-1#column_881.  Any open air recreation if not specifically prohibited is permissible.  All I did was to point out that the legal definition of land included not only the surface but also what was below it; a point I (and many others) should have recognised along time ago.  :-[

What is wrong with the advice given by Natural England and DEFRA and quoted by me above?
 

Badlad

Administrator
Staff member
Graham - we have, of course, read almost everything Natural England, Defra and parliament has to say on the matter.  I'm sure I am not the only one to haver corresponded with NE extensively on the subject.  They have stated that CRoW does not apply to caving, but then they later conceded that it does apply to caving in open shafts and the like.  It is possible that their view is wrong, and it is important that they are only giving their view and their view is not the law. 

One of the two principal reasons Defra lawyers argued that CRoW does not apply to caving is that they thought it impossible to know where a cave is in relation to surface maps and boundaries.  As someone who posts on here about cave surveying and seems knowledgeable on the subject I am sure you will know that this is not true.  In any case SSSI require boundary maps and many cave systems are SSSI so that argument does not stand up.  Their other objection is that caves are not part of the landscape of mountain, moor, heath and down.  Again this is debateable and there are other arguments about the legal definitions of land which suggest Defra may also be wrong.

No, I was not at any of the NCA/BCA meetings.  However, I can assure you that every single NCA/BCA council meeting and AGM minute (between June 1998 and today) has been carefully studied for any reference to caving and CRoW.  All references have been recorded, reported and studied by someone who was there for nearly all of them.  Have you been as thorough?

The whole idea is to place all the information in the hands of a top specialist in law for their considered opinion.  I am happy to accept that opinion which ever way it falls, are you?
 
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