UK Caving

TECHNICAL FORUMS => National Access Discussions => Topic started by: Brains on February 19, 2016, 05:47:23 pm

Title: Drws Cefn- the next instalment?
Post by: Brains on February 19, 2016, 05:47:23 pm
http://darknessbelow.co.uk/?p=1256 (http://darknessbelow.co.uk/?p=1256)

The Brocklebank/Mullen/Burgess editorial team have posted the above on their website and linked to various FB groups.
Essentially it appears from the info given that Rogers and France, individually or together, have issued further legal notices to NRW regarding the ongoing saga, seeking judicial review.
Please read the original article as my notes are just that and may not reflect the original as posted or others interpretations of it...

Quote
We brought you news last year about the threat of legal action from cavers Stuart France and Nigel Rogers and on the responses from both Natural Resources Wales and Drws Cefn landowner Pwlldu Conservation Limited.

We understand in the latest development in this long running saga Stuart France has now issued a pre-action letter via his solicitors to Natural Resources Wales advising of a proposed application to apply for Judicial Review in respect of their claim to rights of access to the Ogof Draenen cave system, despite fears this could result in loss of all access to Ogof Draenen.

In the meantime DEFRA have recently again repeated their position that “open access rights under that Act do not include any rights to use cave systems beneath or within the mapped land” and that all opinions such as the one given by Dinah Rose QC remain just that until the matter is considered and ruled upon by the courts. They have also commented that the other option is to resolve the position by a change in the legislation but they have confirmed that the Government has no plans to make any changes to the Act.

In his report last month to the BCA Council Tim Allen, the BCA CRoW Liaison Officer, considered the Drws Cefn situation and stated “In my view a decision has yet to be made which can be challenged by Judicial Review” –  a view obviously not shared by the Cambrian Caving Council’s Access Officer – Stuart France. It’s difficult to decide whether the report suggests the BCA support this legal action, or are opposed to it.

We have not so far received a response to our requests for comment from the BCA.

My personal position is pro access, but here I am trying just to report this development. Others have suggested a petition, but to what end I am not clear
Title: Re: Drws Cefn- the next instalment?
Post by: Brains on February 19, 2016, 06:07:39 pm
[aside]
Following input from FB I have just had a quick look on the members list and it seems "Graham" and "Bottlebank" are no longer listed, but "Peter Burgess" still is.
I hope that Peter at least feels he can reply within this debate. Although I have disagreed with Graham in the past that doesnt mean I want him silenced - he has valuble input in many areas. Likewise Brocklebank - I hope this isnt directly linked to the "Darkness Below" website formation as a news resource [/aside]
Title: Re: Drws Cefn- the next instalment?
Post by: Peter Burgess on February 19, 2016, 06:26:37 pm
What do you want me to say? It's a news item, not a debate. News is important. There's my opinion.
Title: Re: Drws Cefn- the next instalment?
Post by: Brains on February 19, 2016, 06:36:01 pm
What do you want me to say? It's a news item, not a debate. News is important. There's my opinion.
In the past any mention of this location has lead to pages of debate, as has the prospect of recourse to the law. Debate can be healthy and the picking apart of motives and reasoning can be enlightning. As you say tho, a matter of news, of import to some
Title: Re: Drws Cefn- the next instalment?
Post by: Peter Burgess on February 19, 2016, 06:39:02 pm
Let's see if there is any appetite for further debate rather than try to prompt it then.
Title: Re: Drws Cefn- the next instalment?
Post by: ChrisJC on February 19, 2016, 07:06:44 pm
No need for further debate. It can only be resolved by the courts.

Chris.
Title: Re: Drws Cefn- the next instalment?
Post by: Wayland Smith on February 19, 2016, 07:53:27 pm
No need for further debate. It can only be resolved by the courts. Chris.

But what can only be resolved in court?

Access to Draenan?
Access to Drws Cefn?
Right to underground access on CROW land?
Title: Re: Drws Cefn- the next instalment?
Post by: Damo on February 20, 2016, 01:41:11 am
Well if this is to start yet another debate, i wish you all the very best with it!

In the meantime myself and some others will continue to do what we enjoy doing most.....caving!

Today I intend heading up to Northern Lights, This will yet again be another attempt (one of many) to find the playground that Pete constructed in this particular part of OFD!

Fingers crossed that today will be the day that I finally succeed as I am a huge fan of the seesaw! Although, if this is not amongst the delights of the said playground; the swings will suffice!  :spank: 8) :bounce:
Title: Re: Drws Cefn- the next instalment?
Post by: cavermark on February 20, 2016, 09:11:33 am
No need for further debate. It can only be resolved by the courts.

Chris.

Should the wider implications of this action on the caving community not be discussed? eg. public image of caving, caver/landowner relations in this specific case and in general, impact on the campaign for changes in CROW as applied to cavers, etc.
If it's deemed to be a "bad thing" for caving in general, is there anything that can be done about it at this stage?
Title: Re: Drws Cefn- the next instalment?
Post by: Wayland Smith on February 20, 2016, 09:46:02 am
Should the wider implications of this action on the caving community not be discussed? eg. public image of caving, caver/landowner relations in this specific case and in general, impact on the campaign for changes in CROW as applied to cavers, etc.
If it's deemed to be a "bad thing" for caving in general, is there anything that can be done about it at this stage?

I suppose that you could apply to a court for a restraining order, preventing Stewart from going to court to apply for a judicial review.  :-\
Title: Re: Drws Cefn- the next instalment?
Post by: David Rose on February 20, 2016, 11:21:32 am
Drws Cefn, like most of the Draenen system, is on CROW land. If CROW applies to caving, then any attempt to block access to it would be unlawful. It seems that Nig and Stuart are prepared to test this in court. If so, considerations about the "image" of caving are utterly irrelevant. If they do go ahead with a court case, all they will be doing is seeking to clarify the law. How can that not be welcomed?

No doubt they and their lawyers will consider NRW's response to their pre-action protocol letter carefully. But if this then leads to a court case, then it seems to me that cavers who agree that CROW should apply to caving should support them wholeheartedly, and wish them success.
Title: Re: Drws Cefn- the next instalment?
Post by: royfellows on February 20, 2016, 11:34:35 am
David said: "all they will be doing is seeking to clarify the law"

I have given a lot of consideration to this matter and feel that David's above comment hits the nail on the head. If this is not done the argument is gong to go on and on for ever to the detriment of every caver, whatever their opinion on whether or not CROW should apply to caving or not. The thing to remember here, and this applies to everyone, what you would like and the correct interpretation of the law may well be two different things.

This is where I have been coming from all along.
Title: Re: Drws Cefn- the next instalment?
Post by: cavermark on February 20, 2016, 11:57:23 am
Even if the law is clarified that CROW covers caving, it's not anticipated that it will cover digging.  Will there be a question about Drws Cfn having been dug out with landowner permission? 
Thus if the landowner is "forced" to open it by the legal action, he (and others) still won't be obliged to give permission for new digging activities on their land....
I'm keen on CROW being applied to caving, but cautious that if it's done heavy handedly it could have detrimental side effects...
Title: Re: Drws Cefn- the next instalment?
Post by: David Rose on February 20, 2016, 12:15:31 pm
As I understand it, the digging was not on the surface but underground, in order to connect Drws to the main Draenen system. Digging already takes place underground in many caves without the permission of the landowner who happens to own the entrance, on both CROW and non-CROW land.

Another comment on this image point. What would supporting a court case do? It would show people that cavers are not afraid to insist on the same rights as walkers, canyoners and climbers, and that we have a little backbone. I don't really see how that could be seen negatively.
Title: Re: Drws Cefn- the next instalment?
Post by: bograt on February 20, 2016, 01:18:18 pm
Oh, FFS, dredging up the silt again--!!, if they want to fork out their cash on this, so be it, I only hope that the relevant BCA officers are 'kept in the loop'.
 Although if NRW follow through with their plan to adopt the 'Scottish model' for open access, the outcome will be academic.
Title: Re: Drws Cefn- the next instalment?
Post by: cavermark on February 20, 2016, 01:47:25 pm
As I understand it, the digging was not on the surface but underground, in order to connect Drws to the main Draenen system. Digging already takes place underground in many caves without the permission of the landowner who happens to own the entrance, on both CROW and non-CROW land.

Ok, I hadn't realized that it wasn't a surface dig.  My point about needing landowner permission (and therefore goodwill) for surface digs still has some relevance I feel.

Another comment on this image point. What would supporting a court case do? It would show people that cavers are not afraid to insist on the same rights as walkers, canyoners and climbers, and that we have a little backbone. I don't really see how that could be seen negatively.

I'm sure some journalist could put a different spin on it, which wasn't favourable to cavers  ;) and what if the judicial review didn't go our way?
Title: Re: Drws Cefn- the next instalment?
Post by: Wayland Smith on February 20, 2016, 02:47:10 pm
and what if the judicial review didn't go our way?

 :-\ Then you find a bigger, more important, senior judge to overturn the first ruling.
Then the law lords.
Possibly the European court of justice (if we are still playing with them.)
Or get parliament to change the law.
Title: Re: Drws Cefn- the next instalment?
Post by: Andy Farrant on February 20, 2016, 04:07:50 pm
For the sake of repeating myself, Drws Cefn was dug open when the land was owned by the Coal Authority, back in the late 1990's. It was much later that it was connected to Ogof Draenen. This important distinction was not clear in the recent Descent article.

Personally I don't think Drws Cefn is the right place for a legal challenge, as we risk jeopardizing access to one of our longest and best caves if the judgement goes against us. There are plenty of other sites on access land where the legal status could be challenged. This whole sorry saga appears to me to be far more about individual egos than the best interests of cavers.
Title: Re: Drws Cefn- the next instalment?
Post by: droid on February 20, 2016, 04:22:42 pm
This whole sorry saga appears to me to be far more about individual egos than the best interests of cavers.

The whole CRoW debate stinks of this: people establishing a 'position' and being utterly incapable of seeing any other solution.
Title: Re: Drws Cefn- the next instalment?
Post by: NewStuff on February 20, 2016, 04:45:03 pm
For the sake of repeating myself, Drws Cefn was dug open when the land was owned by the Coal Authority, back in the late 1990's. It was much later that it was connected to Ogof Draenen. This important distinction was not clear in the recent Descent article.

Personally I don't think Drws Cefn is the right place for a legal challenge, as we risk jeopardizing access to one of our longest and best caves if the judgement goes against us. There are plenty of other sites on access land where the legal status could be challenged. This whole sorry saga appears to me to be far more about individual egos than the best interests of cavers.

Given the shenanigans going on here, do you really think a clarification that goes against access will not be "enforced" here? If you don't, I have a bridge you should look at buying...
Title: Re: Drws Cefn- the next instalment?
Post by: Wayland Smith on February 20, 2016, 04:55:03 pm
But parts of Draenan pass under land owned by other people.
Also land not controlled by P.D.C.M.G.
So another new entrance is quite possible (and I believe being looked for.)
Even if the current land owner removes access permission other things are quite possible.
Title: Re: Drws Cefn- the next instalment?
Post by: Clive G on February 21, 2016, 04:00:54 am
For the sake of repeating myself, Drws Cefn was dug open when the land was owned by the Coal Authority, back in the late 1990's. It was much later that it was connected to Ogof Draenen. This important distinction was not clear in the recent Descent article.

Personally I don't think Drws Cefn is the right place for a legal challenge, as we risk jeopardizing access to one of our longest and best caves if the judgement goes against us. There are plenty of other sites on access land where the legal status could be challenged. This whole sorry saga appears to me to be far more about individual egos than the best interests of cavers.

Eighteen months after I dug open the way into the 1984 extensions in Daren Cilau, having heard that the Duke of Beaufort had requested copies of surveys of the new finds, I had a telephone conversation with his land agent, M.J. Dawson, about the new discoveries and followed this up with a letter dated 15th April 1986, which M.J.D. replied to on 18th April.

My parting shot was: "I might add that my interest is spurred from a feeling of personal concern and responsibility that having discovered something of such great interest and value that its future use should be open to as many people as possible, whilst leaving the essence of its character intact."

This we have achieved with Daren Cilau through retaining the difficult nature of the most convenient entrance passage to the further reaches of the system, not involving a long technically-demanding cave dive.

The point here is that you can dig caves anywhere where limestone abounds, but a landowner may have certain paths he wishes visitors to keep to and features, buildings, crops or archaeological remains that he wishes to protect by keeping visitors at a safe distance. He may also develop an interest in creating a show cave accessed via his land. Those who don't actually own the land can only discover the existence of such factors through consultation and dialogue with the landowner.

So, did those who dug open Drws Cefn from the surface (there was no cave there at all at first) subsequently discuss their find with the landowner (Coal Authority, or otherwise), to regularise and confirm the acceptability of what they had done on private land, without permission? Even the CRoW Act does not automatically authorise cave digging on open-access land without the agreement of the landowner. So, what was the response of the landowner in the case of Drws Cefn? Did the landowner make any stipulations - which only the landowner can remove, if he so wishes?

The point being made in a posting above about those supporting CRoW access to caves needing to support this specific legal action in respect of Drws Cefn/Ogof Draenen is utterly spurious and, if not naively proposed, politically motivated.

There is a long-established cave management body for Ogof Draenen which has the full support of the landowner and also a good many cavers. This is no different than the situation with the cave management of Ogof Ffynnon Ddu and I don't think there is any reasonably-minded person who would go around and start proposing a legal action in respect of 'open access' to OFD.

No, this is simply and plainly an unbridled attempt to unsettle the current Ogof Draenen Cave Management Group and so if you're in the 'club' that seeks to do these sort of things (for whatever reason that escapes me) and would like to replace the existing group with a different management group, comprised of different 'selected' people (whoever these might be), then wade in and give your support - at least be honest and open, rather than secretively deceitful, about what you are attempting to do.

However, if you support the OFD cave management structure then what justification is there for being hypocritical and unsettling the current Ogof Draenen cave management arrangements?

Actually, come to think of it, there were one or two people around trying to unsettle things in BCRA when the access to Ogof Draenen was first being arranged with the Coal Authority and support was sought - so I've been quite aware that, in relation to people who like to be in control of affairs behind the scenes, there has been an 'undertow' operating in respect of Ogof Draenen for a long time.

Respecting the fact that some caves need to be managed (and Ogof Draenen has been managed for a good many years with notable success), not only for keeping out those that would harm themselves or the cave, but for the proper management and servicing of technical fixed aids inside the cave and the coordination of scientific studies within the system, apart from taking decisions to help conserve the cave system for future generations of cavers, is not incompatible with seeking to have the CRoW Act clarified such that automatic access to non-managed, open-access caves - naturally existing or dug open with the landowner's permission (current or retrospective) - is guaranteed.  :)
Title: Re: Drws Cefn- the next instalment?
Post by: Madness on February 21, 2016, 08:46:05 am
My personal opinion is that any 'test case' relating to the clarification of CRoW should not involve a cave system that was dug and entered without the landowners permission. I think the issue with this particular cave should be put on the back burner until Tim Allen and the BCA have had a chance to do their stuff.
Title: Re: Drws Cefn- the next instalment?
Post by: cavermark on February 21, 2016, 08:59:54 am
My personal opinion is that any 'test case' relating to the clarification of CRoW should not involve a cave system that was dug and entered without the landowners permission. I think the issue with this particular cave should be put on the back burner until Tim Allen and the BCA have had a chance to do their stuff.

Makes sense to me too.
Title: Re: Drws Cefn- the next instalment?
Post by: David Rose on February 21, 2016, 09:45:20 am
The issue of whether permission was granted for digging in the 1990s is not relevant to the CROW point. The cave is there, it is open, and it is on CROW access land. The small number of trips into Drws that have been taking place aren't causing harm.

I have publicly stated my own hope and wish that the whole CROW issue could be decided by persuasion, without recourse to the courts. Unfortunately thus far DEFRA, NE and NRW have shown themselves to be intransigent and unreasonable, unwilling to budge an inch from a legally perverse position - that cavers can enter systems on access land freely as far as the daylight ends, but can go no further.

Meanwhile, I am told, there are proposals to prevent access to Drws Cefn, supported by some cavers. In my view (and some of them are my friends) their position is very wrong. Sometimes one cannot be selective about where one has to stand and fight. The choice in such circumstances is to struggle or capitulate. It is beginning to seem that this litigation may simply be unavoidable. If so, I for one will support it both in terms of the general principle and in relation to this particular cave.
Title: Re: Drws Cefn- the next instalment?
Post by: Brains on February 21, 2016, 12:48:20 pm
AFAIK the coal board retained the mineral rights at the time of sale, therefore it can be reasonably argued that the present landowner is irrelevant to underground exploration or perhaps even surface digging.

If the cave was already (dug) open BEFORE the CRoW act became law, then that issue may prove to be a red herring.

With the current legal process, to wilfully block the entrance could be seen as contempt of court, being a malicious attempt to circumvent the law?

IMO a quick resoloution is the best way forward...
Title: Re: Drws Cefn- the next instalment?
Post by: martinr on February 21, 2016, 01:07:27 pm
....

With the current legal process, to wilfully block the entrance could be seen as contempt of court, being a malicious attempt to circumvent the law?
.....

With respect, that is nonsense. It hasn't reached court*, there can be no contempt.

* AFAIK
Title: Re: Drws Cefn- the next instalment?
Post by: NewStuff on February 21, 2016, 01:19:55 pm
They have, as I understand it, been given notice of the intention to proceed with the legal avenue. I would think any concrete would need to be kept firmly in the mixer until the legal proceeding are finished.
Title: Re: Drws Cefn- the next instalment?
Post by: cavermark on February 21, 2016, 03:06:38 pm

I have publicly stated my own hope and wish that the whole CROW issue could be decided by persuasion, without recourse to the courts. Unfortunately thus far DEFRA, NE and NRW have shown themselves to be intransigent and unreasonable, unwilling to budge an inch from a legally perverse position - that cavers can enter systems on access land freely as far as the daylight ends, but can go no further.


My impression was that the "official" negotiations via the BCA were in early stages and that a softly, softly, considered approach was being followed. Which has by no means reached a dead end yet...
Title: Re: Drws Cefn- the next instalment?
Post by: David Rose on February 21, 2016, 04:26:47 pm
There are no official "negotiations" as such - only a BCA lobbying effort led by Tim Allen which has been very effective in building support from other outdoor bodies, MPs etc, and which will continue. All cavers should be grateful for the many hours' effort he and others have been putting in.

Even if the Drws situation does end up in court, then this campaign will continue. The two are not mutually exclusive. 
Title: Re: Drws Cefn- the next instalment?
Post by: Badlad on February 21, 2016, 04:55:11 pm
Dear all

The BCA campaign for CRoW to apply to recreational caving is progressing very well, as has been reported to Council meetings and on this forum.  As the BCA is but a minnow in the outdoor recreational sector, the strategy is to gather wide support from other organisations in order to influence and bring pressure for change on those in authority.  I believe this is also very positive for British caving and regardless of what happens at Drws Cefn these efforts will continue.

The BCA is very unlikely to pursue the legal route.  It would not want the financial risk let alone taking account of the many other considerations.  If it did choose to make a legal challenge I doubt very much that it would make it over the Drws Cefn/Ogof Draenen system.  This is a cave which is subject to a bitter dispute between cavers which has been escalating for many years drawing more and more people and organisations into it.  It reflects very badly on British caving and is the responsibility of ALL those who have actively contributed to the situation. 

If BCA did decide to mount a legal challenge I would recommend they chose a cave where cavers were in agreement, where the landowner was broadly supportive or at least ambivalent and where the authority had expressed a sympathy with the national association's view. 

Having said that, judicial review is the legal right of every UK citizen and NGO if they feel that a decision taken by a local authority should be challenged.  Those challenging NRW are perfectly entitled to do so and whether the BCA, NRW, PDCMG, the landowners or anyone else doesn't like it, they seem to have all missed the opportunity to do anything about it now.

If the judicial review process goes through to a conclusion I hope that it brings a positive result and that those involved get what they are wishing for.
Title: Re: Drws Cefn- the next instalment?
Post by: tony from suffolk on February 21, 2016, 04:59:51 pm
I have publicly stated my own hope and wish that the whole CROW issue could be decided by persuasion, without recourse to the courts. Unfortunately thus far DEFRA, NE and NRW have shown themselves to be intransigent and unreasonable, unwilling to budge an inch from a legally perverse position - that cavers can enter systems on access land freely as far as the daylight ends, but can go no further.
... And it's difficult to imagine a more perverse and utterly ridiculous stance, only possible by being concocted by civil servants desperately scrabbling around to justify their completely untenable stance on this. I mean, how unbelievably crass can you get?

I've been dealing with this stuff all my working life. Just watch what happens when the judiciary beams in and brings logic to bear. They'll all scuttle off back to their little holes and plead ignorance.
Title: Re: Drws Cefn- the next instalment?
Post by: Rhys on February 22, 2016, 10:32:12 am
As I understand it, the digging was not on the surface but underground, in order to connect Drws to the main Draenen system. Digging already takes place underground in many caves without the permission of the landowner who happens to own the entrance, on both CROW and non-CROW land.

Ok, I hadn't realized that it wasn't a surface dig.  My point about needing landowner permission (and therefore goodwill) for surface digs still has some relevance I feel.

The following quote suggests that Drws Cefn started as a surface dig.

The entrance to Drws Cefn is a completely natural feature (a small vertical pothole) that became infilled with glacial deposits at the end of the last ice age. These deposits were then removed to reveal the open cave passage which lay beneath. Further on, this passage was indeed enlarged artificially during the course of its exploration but this is no different to what you find with many caves, including the original Ogof Draenen entrance.
Title: Re: Drws Cefn- the next instalment?
Post by: David Rose on February 22, 2016, 10:58:10 am
If CROW were recognised as applying to caves, would the past removal of some glacial infill from a natural entrance mean that this entrance would not be covered by the Act's provisions? I very much doubt it. Consider: a climber might well removes loose flakes or trundle boulders from a new route before making the first ascent. If the crag were on CROW access land, would this make any difference? I don't think so.

I think this argument over the history of Drws Cefn is irrelevant now. As I said before, the cave is there. It exists and is open. If CROW applies to caves, then that is how it should stay. The same should apply to many other entrances on CROW land from which infill was once removed.
Title: Re: Drws Cefn- the next instalment?
Post by: Simon Wilson on February 22, 2016, 11:04:50 am
In addition, people have been filling in caves for thousands of years. So a great many digs are the reopening of caves which where naturally open in the past.
Title: Re: Drws Cefn- the next instalment?
Post by: Rhys on February 22, 2016, 11:44:50 am
David and Simon

You are both effectively saying that if CROW applies to caving, then it also gives a right to surface cave digging. It has generally been agreed that this would not be the case.

Perhaps the judical review might consider this point.
Title: Re: Drws Cefn- the next instalment?
Post by: droid on February 22, 2016, 12:03:57 pm
David seems to be talking about past removal of fill, Simon about future removal.

Two different things.
Title: Re: Drws Cefn- the next instalment?
Post by: Alex on February 22, 2016, 12:18:00 pm
I think they are saying it applies to caves already opened now but would not apply to anything opened in the future, once and if the act is re-interpreted. There is also SSI permission for digs needed.
Title: Re: Drws Cefn- the next instalment?
Post by: David Rose on February 22, 2016, 12:34:54 pm
Yes, Alex, that is what I am saying. In my opinion, this is the only reasonable approach. If it were held that CROW did not apply to caves that had once been dug open, imagine the situation with a system such as Gaping Gill - where some entrances have always been open, and others have required varying degrees of digging. Or, for that matter, Easegill. It didn't take long to get into Lancaster Hole, but it was only entered after the removal of infill. The fact this happened in the 1940s makes no difference, so far as I can see. 
Title: Re: Drws Cefn- the next instalment?
Post by: David Rose on February 22, 2016, 12:37:05 pm
To be specific: I'm saying CROW should apply to caves that have been dug into - but wouldn't grant unrestricted rights to dig on the surface elsewhere.
Title: Re: Drws Cefn- the next instalment?
Post by: Simon Wilson on February 22, 2016, 01:01:41 pm
Yes. And the point I was making was tangential. What I said has nothing to do with the law and nothing to do with landowner's permission. I great many surface digs are the reopening of caves that have been filled in a long time ago which is why they are often of archaeological interest. So my point is to do with conservation and ethics. The cave was there before humans and we are just continuing a process of human interaction with the natural landscape.
Title: Re: Drws Cefn- the next instalment?
Post by: bograt on February 22, 2016, 01:22:58 pm
Surely this branch of this thread is irrelevant, as I see it the, Drws Cefn entrance was opened in 1996/1997, the CRoW act was passed in 2000, this means the entrance was in existence before the act was passed, any activity before the act is of no consequence.
Furthermore, I understand that the present owners acquired the land after the entrance was opened, so they got it knowing about the cave ---.

I am sure that any action to change the natural characteristics of CRoW land as it was when the act was passed will require special permission, this was applied for and refused IIRC.--
Title: Re: Drws Cefn- the next instalment?
Post by: Madness on February 22, 2016, 01:29:04 pm
So, lets just say that the legal action over Drws Cefn takes place and the court rules for 'the establishment' (and lets not forget that the court is part of 'the establishment'), the ruling might be that CRoW does not apply to caving.

Then what? MP's, organisations etc are less likely to give support to a cause the has be ruled against in a English Court of Law.

Is the risk justifiable at the moment? A couple of cavers wanting to prove a point might spoil it for future cavers.

Just as a matter of record, My stance is that CRoW does/should apply to caving and that we should give the BCA efforts a chance before acting as individuals. In my opimion a large body of support is more likely to have success than a couple of individuals.
Title: Re: Drws Cefn- the next instalment?
Post by: Rhys on February 22, 2016, 02:05:10 pm
David and Simon

Thank you for your clarifications.
Title: Re: Drws Cefn- the next instalment?
Post by: David Rose on February 22, 2016, 02:52:52 pm
I do not follow why it would be harder to get support if cavers had lost a court action. First,  it might be that a later court action over a different cave where circumstances were different might have a different result. A judgment would be binding only if it took place in the Court of Appeal. Secondly, history is full of examples of successful campaigns to change the law or its interpretation. (NB that at present, we are talking about interpreting existing law, not changing it.)
Title: Re: Drws Cefn- the next instalment?
Post by: Madness on February 22, 2016, 10:20:12 pm
So, if a court were to rule that caving was not included in CRoW, you believe that it wouldn't make any difference to what the BCA are trying to achieve?

Would the BCA then challenge the ruling at a court of appeal?

I'm happy to admit that I know little about how our legal system works,but surely once a legal precedent is set it gets that bit harder to argue your case.
Title: Re: Drws Cefn- the next instalment?
Post by: David Rose on February 22, 2016, 10:54:59 pm
A judicial review about Drws would not be binding on any subsequent cases, unless one or other side appealed and the cavers lost. However, a defeat in the first tier (administrative) court would certainly be a setback, though not a crushing one.

My main concern at this point is to try to ensure that those planning the action and their advisors are clear that there aren't any special factors in play at Drws that might make defeat there more likely than at some other site. These are technical issues way beyond my knowledge. If there are no such factors, I believe that any caver who supports the view that CROW should apply to caving ought therefore to support the proposed litigation as strongly as possible.

The reason is simple: victory over Drws would probably mean DEFRA, NRW and NE would change their policy. I already find it surprising that they can be contemplating spending taxpayers' money in order to defend the closure of a cave on CROW land. Doing so again somewhere else would look indefensible, especially in light of the broad support the BCA campaign is now attracting. The BCA lobbying campaign and the legal action may end up achieving a synergy that enhances the impact of both. 
Title: Re: Drws Cefn- the next instalment?
Post by: Jopo on February 23, 2016, 12:38:52 am


, especially in light of the broad support the BCA campaign is now attracting.

Without getting embroiled in the core argument I wonder where statements such as this come from.
As far as I can make out from the contributors to all of the threads covering this topic if you said there were 50 in support and 50 against you would be being very generous. It is easy to make a claim on support - after all newspapers and politicians do it all the time.

Please explain how you justify such a statement.

Jopo
Title: Re: Drws Cefn- the next instalment?
Post by: Brains on February 23, 2016, 07:42:13 am
Would the referendum they had on the topic, mandating BCA to work for a pro clarification, not be considered enough?
Title: Re: Drws Cefn- the next instalment?
Post by: Peter Burgess on February 23, 2016, 08:32:05 am
That was support attracted some while ago. The comment was about support being attracted now, with the word "especially", implying a significantly greater level of support than was previously expressed. It is just as likely that cavers are now having some misgivings over how they voted, in the light of how a few cavers are now behaving. One can't really tell as it would require another test of opinion, which is not going to happen.
Title: Re: Drws Cefn- the next instalment?
Post by: cavermark on February 23, 2016, 08:39:05 am
That was support attracted some while ago. The comment was about support being attracted now, with the word "especially", implying a significantly greater level of support than was previously expressed. It is just as likely that cavers are now having some misgivings over how they voted, in the light of how a few cavers are now behaving. One can't really tell as it would require another test of opinion, which is not going to happen.

I don't think the actions of "certain cavers" are likely to give people misgivings over how they voted. I think people have concerns about the actions of certain cavers, because their actions might set back the ultimate outcome that we voted for.
Title: Re: Drws Cefn- the next instalment?
Post by: crickleymal on February 23, 2016, 08:50:30 am
Personally I'm bored by the whole thing. It just seems to be an excuse for various people to snipe at each other. This one tiny issue seems to have generated more acrimony than all the others put together.
Title: Re: Drws Cefn- the next instalment?
Post by: David Rose on February 23, 2016, 08:58:37 am
Jopo, I'll let Badlad handle that question. But trust me, he and his colleagues are making headway.
Title: Re: Drws Cefn- the next instalment?
Post by: NewStuff on February 23, 2016, 11:15:58 am
That was support attracted some while ago. The comment was about support being attracted now, with the word "especially", implying a significantly greater level of support than was previously expressed. It is just as likely that cavers are now having some misgivings over how they voted, in the light of how a few cavers are now behaving. One can't really tell as it would require another test of opinion, which is not going to happen.

You have glasses so rose tinted, they're red.

I suspect that some people are uneasy about the fact that people should even *have* to think about legal proceedings. We all explore underground, and yet some are so determined to concrete an entrance that I can't blame them for thinking it's a realistic way forward.
Title: Re: Drws Cefn- the next instalment?
Post by: Peter Burgess on February 23, 2016, 11:18:26 am
Well, I see feedback on this that doesn't appear on this forum, and isn't going to either. To use David Rose's phrase, "trust me".
Title: Re: Drws Cefn- the next instalment?
Post by: NewStuff on February 23, 2016, 12:20:55 pm
Well, I see feedback on this that doesn't appear on this forum, and isn't going to either. To use David Rose's phrase, "trust me".

So, "Do what we say, we won't be telling you why, but you had better do it because we say so. Trust us".

Trust *you*??? I'd rather drop a shaft on a dynamic half rope...

Yourself and Graham seem to think that if you vaguely wave your hands a little and murmur something about "not online" then that automagically makes everything ok, we should trust you. Granted, they may not be online, and you may not be able to link us to something, but names, sources, details... you lack all of the above, it's all very wishy-washy and I'm quite inclined to say, it does not exist in any way close to what you make out it does, and *that's* why it will never appear.

Trusting yourself would lead to gates on pretty much any hole in the ground, and a permission system that requires forms that need to be filled out in triplicate, a letter from your mum saying you can do it in your underwear as you've forgotten your oversuit, and be bestest mates with whoever is the guardian of that particular gate...

Title: Re: Drws Cefn- the next instalment?
Post by: Rhys on February 23, 2016, 01:42:04 pm
Global Moderator Comment Newstuff, please debate the issue, don't attack the individual. It's not big and it's not clever. You've had numerous warnings to this effect in the past.
Title: Re: Drws Cefn- the next instalment?
Post by: Peter Burgess on February 23, 2016, 01:54:30 pm
To make it clear, the reason it is unlikely to appear here is because the individuals have absolutely no wish to come here, and have perfectly adequate other means to pass on their concerns to those that are prepared to listen. Not because I don't want it to be posted here. Hope that's clear enough.
Title: Re: Drws Cefn- the next instalment?
Post by: Badlad on February 23, 2016, 01:59:09 pm
That was support attracted some while ago. The comment was about support being attracted now, with the word "especially", implying a significantly greater level of support than was previously expressed. It is just as likely that cavers are now having some misgivings over how they voted, in the light of how a few cavers are now behaving. One can't really tell as it would require another test of opinion, which is not going to happen.

The BCA poll/vote gave a clear majority for it to campaign for CRoW to apply to caving.  When I've travelled around the country, caving, attending meetings, etc all indications are that that majority has increased rather than anything else.  Several cavers have told me they would now vote pro either because they have been persuaded by the arguments or because they feel they should support the BCA majority rather than to continue in opposition.  My own experience at BCA Council meetings is that council members have all voted in support of my work as CRoW liason officer even though some originally voted against in the poll.  Also the recent CNCC meeting specifically voted to support the BCA campaign (all for, with one abstention).  The DCA and CCC have also given similar support (the CSCC not).

However, what I expect the earlier post was referring to was the wider support from outside caving, such as the support from other outdoor organisations, MPs and the like that was mentioned in my last report to council.  This wider support has continued to grow and will be reported on first, and in more detail, at the next BCA Council meeting.

I know some people wind each other up on this forum but please... we are trying to keep the forum civil whatever side of the debate you are on.  Thanks
Title: Re: Drws Cefn- the next instalment?
Post by: Peter Burgess on February 23, 2016, 02:03:41 pm
I am not trying to wind anybody up, Tim. Just stating an observation. I am disappointed when innocent actions and statements are misinterpreted. I know this is inevitable on social media, but it does seem to happen quite a bit more than necessary. People should stop reading between the lines as it simply doesn't add anything to the process.
Title: Re: Drws Cefn- the next instalment?
Post by: Badlad on February 23, 2016, 02:20:50 pm
My final comment was not particularly aimed at you, Peter, but supportive of the global moderator comment made by Rhys.

Anyway I hope my post was able to answer your question about the wider support the BCA campaign has been attracting recently.  More details will be published on here after they have been reported to the next Council meeting.
Title: Re: Drws Cefn- the next instalment?
Post by: David Rose on February 23, 2016, 02:22:02 pm
Newstuff, I don't know who you are or what I've done to upset you, but I was merely referring to the fact that Badlad (aka Tim Allen) has been leading the lobbying effort to get other outdoors bodies onside and ought to answer the question. And as he's just made clear, in due course he will make a full report to the BCA.

I have always tried to be transparent and honest in debating this (and any other) issue. For example, when I spoke to the Draenen landowner and got answers that I didn't like and which didn't help the cause I posted them anyway because I believe people have a right to be informed. OK?

 
Title: Re: Drws Cefn- the next instalment?
Post by: jasonbirder on February 23, 2016, 02:26:18 pm
Quote
That was support attracted some while ago.
 
Quote
it would require another test of opinion

I'm going to hazard a guess that if the CROW referendum had gone against campaigning for better Cave Access...that people wouldn't suggest it was too long ago (a year?) or that it was already time for another referendum (in the hope of a different result)
Title: Re: Drws Cefn- the next instalment?
Post by: David Rose on February 23, 2016, 02:27:18 pm
Oh, I realise you were actually directing your comment towards Peter. I should pay closer attention. Apologies. Anyhow, I agree with Rhys. Let's all keep the ad hominem stuff out of this forum - it's been much more pleasant lately, and long may it remain so.
Title: Re: Drws Cefn- the next instalment?
Post by: Peter Burgess on February 23, 2016, 02:28:01 pm
Thank you for making that clear Tim.
Title: Re: Drws Cefn- the next instalment?
Post by: NewStuff on February 23, 2016, 02:29:40 pm
Newstuff, I don't know who you are or what I've done to upset you, but I was merely referring to the fact that Badlad (aka Tim Allen) has been leading the lobbying effort to get other outdoors bodies onside and ought to answer the question. And as he's just made clear, in due course he will make a full report to the BCA.

I have always tried to be transparent and honest in debating this (and any other) issue. For example, when I spoke to the Draenen landowner and got answers that I didn't like and which didn't help the cause I posted them anyway because I believe people have a right to be informed. OK?

You haven't upset me in the slightest, I think you should be applauded (along with many other people) for taking so much time to help open up access for everyone. I was referring to Peter Burgess and his hordes of offline supporters that conveniently  are not online, do not visit this site (or for that matter, any other I have found yet), and refuse to have any detail whatsoever provided about them. In most other circles, people would think he was making it up.
Title: Re: Drws Cefn- the next instalment?
Post by: Peter Burgess on February 23, 2016, 03:25:27 pm
The last thing I made up was a lentil and bean soup, with smoked sausage chopped up in it for extra flavour.
Title: Re: Drws Cefn- the next instalment?
Post by: Badlad on February 23, 2016, 04:05:14 pm
Administrator Comment In response to several complaints I'm just going to lock the thread for a few hours so we can all take a break and prevent any deterioration of the thread. I hope folk agree. Back soon
Title: Re: Drws Cefn- the next instalment?
Post by: Brains on February 23, 2016, 10:15:21 pm
The PDCMG do not post here, and keep quite on line about their proposed activites. As has been shown here before they and there associates have planned to concrete Drws Cefn. Perhaps plans are in hand to do the deed before the case comes to court? Is that what is being hinted at?
I would imagine their views have become more negative to CRoW as the majority wish to see a clarification in favour becomes more apparent.
Maybe that is what is being hinted at?
Title: Re: Drws Cefn- the next instalment?
Post by: alastairgott on February 24, 2016, 01:29:10 pm
I'm afraid I echo views that this issue should not go to court, at least until a decision has been made between the cavers involved as to the Best course of Action.

This will not be a test case for Open access if this discussion doesn't take place.

The reason for this is because as a community we will look disorganised. It would be much better to settle the Drws Cefn case outside of Court.

If you are going to take it to court then your going to:
a) waste time, better spent digging (or caving).
b) waste money, better spent promoting the sport (or digging).
c) have a lot of boring circular conversations.

 
I can see why PDCMG want to have only one entrance. having two entrances could have a detrimental effect on the Conservation of the Cave.
 Yes, people who have used the Drws Cefn Entrance say that it is just as far away from the formations as the Draenan Entrance and Just as hard, but I don't know as I've never been there.
 But that Is missing another aspect of Conservation relating to Draughts. If there are two entrances this could create a draught.
As far as I know, we still do not know how Helectites (erratics) are formed. with the addition of a draught created by having two entrances this could have long lasting effects on the future growth of these speleothems. That would be a crying shame.

My two pence then is that the decision on two entrances vs one Should be based on scientific merit and not based on the decision of a Bigwig in a court or some government Quango.


The whole reason why CROW Came about was because of Yorkshire cavers not being happy about a decision in the past.
 This thread is seeking the same Whitewashing result for Welsh cavers to sort out in the future. It wont work.

None of you will be happy with any decision unless you make it yourselves.
Title: Re: Drws Cefn- the next instalment?
Post by: Alex on February 24, 2016, 02:07:56 pm
I agree now a court action is not in everyones best interest as great strides are being made recently and well if we don't like the permit system up here we can simply ignore it, if it all goes wrong it could make the situation worse!

As for drafts:

Even with PDCMGs old plans which include a bat window you will still have the draft, so I think that's a non-issue unless it is completely walled off (illegal now, due to bats). There was likely a draft there anyway as that was what told the diggers to dig there.
Title: Re: Drws Cefn- the next instalment?
Post by: andrewmc on February 24, 2016, 03:15:38 pm
c) have a lot of boring circular conversations.

You could argue taking it to court will settle that particular case (if not necessarily the wider issue) once and for all, quite the opposite of the usual circular conversations...

If the BCA were offered the chance to apply for a judicial review right now for a simpler case than Drws Cefn for £1 with no potential liability, would they not choose to do it? If the court unambiguously stated that CROW did not apply to caving, then we would know that and could decide whether to push for a change in the law or not.
Title: Re: Drws Cefn- the next instalment?
Post by: alastairgott on February 24, 2016, 04:01:04 pm
If the BCA were offered the chance to apply for a judicial review right now for a simpler case than Drws Cefn for £1 with no potential liability, would they not choose to do it?

If you can think of a cave where there are good relations with the landowner and therefore open access is not a contentious issue then it may be wise to ask BCA if it would be worth pursuing. Badlad would know I’m sure and would probably ask the question on your behalf, or may already be doing so...