A big day for CRoW

Badlad

Administrator
Staff member
Today's the day we hope to see some real movement on the CRoW debate - one way or the other. 

David Rose backed by the BCA (and your money) is in virtual court today for a preliminary hearing of the Judicial Review against the Welsh Government on CRoW.  Today the judge will decide whether to allow the case to proceed to a full hearing overturning the previous decision that the Welsh Government was not judicable (or whatever the legal word is).  Our solicitor and barrister have put forward a very strong and enlightening case.  The big guns of NRW and Defra have attached themselves to the case so let's hope it is enough to get our full day in court and the CRoW issue finally sorted. 

Good luck Dave and team
 

Ian Ball

Well-known member
go well Mr Rose,

at the AGM David suggested we could join the public gallery so to speak?  Anyone know how to do that?
 

Badlad

Administrator
Staff member
There has been links and codes sent to the Crow group and BCA exec by the legal team.  I'm not sure this is intended for wider public viewing so I wouldn't like to pass it on.  You were also advised to complete some tests yesterday to gain access today.  As long as the links work for me I'd be happy to offer a summary later on.
 

Badlad

Administrator
Staff member
Hearing lasted nearly 1.5 hours with our barrister arguing the main points of the case to overturn the previous decision that our case was not reviewable.  Unfortunately the judge refused again to judicially review the decision against caving on the grounds that ARAG  were not making decisions on behalf of the Welsh Government and that they were only an advisory group.  The judge did not agree that the steering group of the ARAG was effectively making the decision to exclude caving on behalf of the Welsh Government.  To me it sounded like a very technical and nuanced argument but it means there is no opportunity to challenge on the substantive points of whether CRoW includes caving or not. 

So there are no more grounds for BCA to pursue the CRoW issue through this channel.  The status quo remains that there is ambiguity in the legislation and the CRoW act may or may not include caving.  NRW and Defra contest that it doesn't apply to caving and many others, including BCA, contest that it does.  This is likely to remain the case for many years to come as opportunities to challenge are few and far between.

One interesting point made by the judge was that cavers trespassing would more likely bring about a challenge on CRoW in law.  It seemed odd to hear a judge suggest it.

This is just my own very brief report on the hearing.  I sure Dave Rose and BCA will formally report in more detail at a suitable point in the future.
 

Ed

Active member
So basically the judge is saying ARAG have no legal authority / remit so what ever they say can simply be ignored as it is only advice

Like the difference between Must /can not  and should not in regulations etc.. The former is legally enforceable the later is merely a request.

So the Welsh Gov now need to publish their own independent  diktat  on whether CRoW applies or not and not use that of the steering group.

In other words until WG publish their own  rules people are free to carry on as if CRoW does cover caving (or not if that is their preference) --- with a landower attempting taking civil action over something there isn't clear rule of they would be using a correct interpretation of the civil law.

I'd say that means any aggrieved landowner will have to push form a review by the WG
 

JoshW

Well-known member
Ed said:
So basically the judge is saying ARAG have no legal authority / remit so what ever they say can simply be ignored as it is only advice

Like the difference between Must /can not  and should not in regulations etc.. The former is legally enforceable the later is merely a request.

So the Welsh Gov now need to publish their own independent  diktat  on whether CRoW applies or not and not use that of the steering group.

In other words until WG publish their own  rules people are free to carry on as if CRoW does cover caving (or not if that is their preference) --- with a landower attempting taking civil action over something there isn't clear rule of they would be using a correct interpretation of the civil law.

I'd say that means any aggrieved landowner will have to push form a review by the WG

this interpretation of BadLad's summary, to me, looks like a positive outcome, can continue to assume CRoW covers caving until someone else pushes to prove otherwise?

Someone smarter than me (shouldn't be difficult to find one of those) I'm sure will have a counter argument to my positivity?
 

mikem

Well-known member
I thought the action was over their decision not to consider caving because "it wasn't an outdoor sport", so doesn't change the status CRoW!
 

aricooperdavis

Moderator
Badlad said:
One interesting point made by the judge was that cavers trespassing would more likely bring about a challenge on CRoW in law.  It seemed odd to hear a judge suggest it.

Could the BCA support a mass trespass? It would only be breaking the law in very a specific and limited way...
 

Badlad

Administrator
Staff member
The decision taken by the Access Reform Advisory Group was to exclude caving from the process on the grounds that, "Following a review of the history and policy of the CROW Act [Countryside and Rights of Way Act 2000], it was agreed that open air access does not include caving.?  This decision was made by the ARAG steering group which was chaired by Simon Pickering, the Welsh Government?s Head of Landscapes and Outdoor Recreation Team and made up from other members of the Welsh Government and administrated through a secretariat also part of the Welsh Government.

The judge didn't agree that the decision therefore amounted to a decision by the Welsh Government and was not judicially reviewable.
The subtle nuances of whether the steering group, who decided upon the policy the reform group had to meet, were actually a part of government or something else were not upheld by the judge.  The argument that the decision made by the steering group was effectively endorsed by the government did not win out. 

It appeared to me that the standard way out for government is to claim that decisions are not reviewable and make a case on that legal point and not the substantive argument.

The end result it that the status quo remains and we are none the wiser on whether CRoW applies to caving or not.  There has been no answer on that.  The judge awarded ?1600 costs but BCA have to pick up the costs of our barrister and solicitor so an expensive undertaking for caving but one which the membership clearly indicated was worthwhile.

 

Badlad

Administrator
Staff member
aricooperdavis said:
Badlad said:
One interesting point made by the judge was that cavers trespassing would more likely bring about a challenge on CRoW in law.  It seemed odd to hear a judge suggest it.

Could the BCA support a mass trespass? It would only be breaking the law in very a specific and limited way...

I get the joke  :), but actually no it wouldn't, the law is not clear on this point and has yet to be defined.
 
My understanding is that most, or even all, the points made in court are also written down beforehand in written submissions to the judge from both sides. Are these papers available from anywhere, as it rather seems to make a mockery of public justice if they aren't? Similarly, will the final judgement be published, and if so where?

I know a lot of work has gone on behind the scenes into answering some very specific points which the Welsh Government side tried to make, so people have had access to, at least, parts of them and see no reason for them to remain embargoed (if they ever were).
 

Ed

Active member
It has cleared up the point that anything ARAG publish has no legal standing and isn't the definitive guidance from WG 

So unless WG publish its own legal "ruling (not guidance documents) - stating open air access does not include caving, it isn't excluded from CRoW

 

mikem

Well-known member
This doesn't appear to have been posted before & is obviously just one possible interpretation:
https://darknessbelow.co.uk/the-definitive-opinion-on-crow-and-cave-access/
 

NewStuff

New member
mikem said:
This doesn't appear to have been posted before & is obviously just one possible interpretation.

It's been linked before. Definitive my arsehole. It was, and remains, finger wagging and telling off.
 

PeteHall

Moderator
mikem said:
This doesn't appear to have been posted before & is obviously just one possible interpretation:
https://darknessbelow.co.uk/the-definitive-opinion-on-crow-and-cave-access/

This article has definitely been discussed on here before. The basic premise is that "it's not on the map, so it isn't covered", I recall that the counter-argument is that the same could be applied to any feature on CRoW land not specifically detailed on the map, so for example, by this logic you could not climb a specific boulder because it wasn't depicted on the map.

Even if you believed it to be the case, it's not an argument that the Welsh Government (or their advisors) have made, so why provide them with potential ammunition to use against your own community?!? I just don't understand these people.
 

Badlad

Administrator
Staff member
If you want to see the arguments from the court, barrister etc, either those over whether the decision was judicially reviewable or the more substantive argument on the CRoW matter from both sides then I guess you would need to ask David Rose as he was the claimant.  The bundle in front of the judge was some 538 pages I recall.

The argument mikem posts about is well known to both sides (and the court) - so is the counter argument.  One thing that this process did disclose is that there is no new or unknown argument being brought by the WG, NRW, or Defra as they had to disclose that to the court.  The main substantive arguments remain the same for both sides and as Defra has repeatedly said only a court can make a definitive decision.  That will have to come another day - or may never come and a bit like Schrodinger's cat might be alive or dead and we'll never know until we open that box/judgement.
 

hannahb

Active member
The Department for Digital, Culture, Media & Sport recently classed caving as an outdoor sport (for Covid related stuff) - does this have any bearing? Or is the sticking point that it's not considered to be open air?
 
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