UK Caving

TECHNICAL FORUMS => National Access Discussions => Topic started by: Badlad on October 13, 2020, 07:58:34 am

Title: A big day for CRoW
Post by: Badlad on October 13, 2020, 07:58:34 am
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
Title: Re: A big day for CRoW
Post by: PeteHall on October 13, 2020, 08:18:24 am
Good luck David!
Title: Re: A big day for CRoW
Post by: Ian Ball on October 13, 2020, 08:59:21 am
go well Mr Rose,

at the AGM David suggested we could join the public gallery so to speak?  Anyone know how to do that?
Title: Re: A big day for CRoW
Post by: Badlad on October 13, 2020, 09:23:45 am
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.
Title: Re: A big day for CRoW
Post by: ChrisJC on October 13, 2020, 10:21:55 am
That is brilliant. Fingers crossed we can proceed to the next step.

Chris.
Title: Re: A big day for CRoW
Post by: Badlad on October 13, 2020, 12:22:03 pm
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.
Title: Re: A big day for CRoW
Post by: Ed on October 13, 2020, 01:02:54 pm
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
Title: Re: A big day for CRoW
Post by: JoshW on October 13, 2020, 02:16:48 pm
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?
Title: Re: A big day for CRoW
Post by: mikem on October 13, 2020, 02:51:12 pm
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!
Title: Re: A big day for CRoW
Post by: aricooperdavis on October 13, 2020, 03:31:44 pm
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...
Title: Re: A big day for CRoW
Post by: Badlad on October 13, 2020, 03:34:17 pm
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.

Title: Re: A big day for CRoW
Post by: Badlad on October 13, 2020, 03:38:05 pm
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.
Title: Re: A big day for CRoW
Post by: Martin Laverty on October 13, 2020, 03:52:46 pm
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).
Title: Re: A big day for CRoW
Post by: Ed on October 13, 2020, 04:36:37 pm
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

Title: Re: A big day for CRoW
Post by: mikem on October 13, 2020, 05:07:15 pm
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/
Title: Re: A big day for CRoW
Post by: NewStuff on October 13, 2020, 05:41:37 pm
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.
Title: Re: A big day for CRoW
Post by: PeteHall on October 13, 2020, 05:45:48 pm
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.
Title: Re: A big day for CRoW
Post by: mikem on October 13, 2020, 05:50:53 pm
 :-\ Doesn't come up on search :shrug:
I was surprised that it didn't...
Title: Re: A big day for CRoW
Post by: Badlad on October 13, 2020, 06:03:46 pm
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.
Title: Re: A big day for CRoW
Post by: hannahb on October 13, 2020, 07:11:42 pm
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?
Title: Re: A big day for CRoW
Post by: Badlad on October 13, 2020, 07:28:15 pm
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?

Yes in fact since the 1970's various government bodies have recognised caving as an outdoor activity.  However...

The phrase used is 'open air recreation' in the Act.  The legislation makes no attempt to define this phrase.  One dictionary definition suggests not enclosed spaces another outside, outdoors.  The minister at the times helpfully suggested that the act should include activities as widely as possible and exclude only those listed in the list of exclusions.  Anyway you can go around and around and there are valid arguments on both sides. 

Our argument is the right one of course  ;)
Title: Re: A big day for CRoW
Post by: Fjell on October 13, 2020, 09:19:40 pm
It's always a bit like objecting to development on the land next door. Vastly the best solution is to own the land. I am currently trying to do exactly that.

Similarly, getting the law written your way in the first place is best, and here we are....

Possibly owning the land is the best option in a few cases. BCA has plenty of cash it seems, and BMC have done it. Just think, if every BCA member chipped in a grand, that would be, what, £6 million? How much do you love your sport?

But it does raise the interesting issue that no landowner in their right mind (or their lawyers mind) is going to sue a caver for trespass on CRoW land, even if they could (and they generally can't that easily).
Title: Re: A big day for CRoW
Post by: Badlad on October 13, 2020, 09:24:22 pm
But it does raise the interesting issue that no landowner in their right mind (or their lawyers mind) is going to sue a caver for trespass on CRoW land, even if they could.

Exactly  ;)
Title: Re: A big day for CRoW
Post by: Stuart France on October 13, 2020, 10:13:29 pm
Although David Rose is the Claimant in this case and BCA is meeting his costs, I am the aggrieved party since ARAG refused me membership of its Working Groups on the grounds that ARAG believed caving is not “open air access” (as they put it), and so CROW does not apply to caving in their view, and so removing any ambiguity in CROW concerning caving via the government's new access reform programme will not be considered - all because CROW does not apply to caving.   Illogical I know!

I met the Deputy Minister in April 2019 and she asked me to write to her about what caving wanted regarding the upcoming sorting out of caving access in Wales within the upcoming reform programme that followed the Welsh Government public consultation which she had just trumpeted.

I did write, and she replied that she would get her “officials” to deal with this or words to that effect.  What actually happened is that an advisory committee called ARAG which was not (apparently) instructed by her "officials" dealt with it.  ARAG is chaired by WG’s Head of Landscape and Recreation called Simon Pickering.  WG and NRW provide the secretariat.  WG funds it directly or via NRW.  The judge today thought ARAG is not a part of WG and is purely advisory, has free rein, and is not publicly accountable.

It’s actually more complicated.  ARAG is split into two levels:  a upper level Steering Group that is non-advisory and is there to “manage” the programme via 5 people and all of them central government or NRW or local government employees and all appointed by central government, and three lower level Expert Groups which are volunteers drawn from interest groups like ramblers, climbers, landowners, water companies, fishing, kayaking, hang-gliders etc, appointed by the Steering Group to advise on Policy Intents which were defined by (guess who) the Steering Group - and thus directly or indirectly by the government or by their own invention depending on whom you believe.  To join an Expert Group you have to agree in advance to support the Policy Intents.

If Steering Group and its Policy Intents are not a part of Welsh Government and ARAG itself is non-government then it means an ad hoc group is somehow now in charge of defining future legislation which is nonsense so the premise that ARAG is non-government is nonsense too.

This is not necessarily the end of the matter as we could take our present case (i.e. asking a third time for permission to proceed with the main CROW case) to the Court of Appeal for not a lot of extra cost to BCA.  The CA would then decide the matter of whether our CROW case is allowed to go ahead and thus to overturn today’s judgement.

Alternatively, for example, we can try to get NRW to affirm its statutory advice to the public under CROW S.20 and JR their affirmation that CROW does not apply to caving in their view.  But they will then argue their general public advice was prepared too long ago to be reviewable by a court now and we’ll be back in the same game of the government wanting to argue over something other than CROW:  in such a case it would be the effective date of the alleged incorrect NRW advice for judicial purposes.  The case would then revolve around the smoke-screen of whether a policy affirmation is a new decision or not, in other words if it is eligible for JR or not.

Alternatively we could follow today's judge's incredible suggestion, if I heard this correctly, to engineer an alleged trespass case and get the access rights matter decided by a court in that way.

Alternatively we can ask the High Court for a Declaration that CROW applies or does not apply to caving because BCA is now uncertain as to how to correctly advise its members on whether all caving south of Scotland is trespass unless consented by the landowner because today’s case has solved nothing at all of importance and it leaves everything, as it was before, in limbo land.

Preventing the big legal questions from being addressed by erecting a smoke-screen issue in front of the main issues seems to be normal practice for government defence of JR cases.

Defending a case so as to leave things in limbo is not a win for the Welsh Government nor NRW because they have ducked the substantive questions by obstructing them from being decided by a court.



Title: Re: A big day for CRoW
Post by: alastairgott on October 13, 2020, 10:36:29 pm
Hmm it's a bit much to say that the mass trespass had nothing to do with caving/caves. I have spent a short period tonight briefly researching and have found that a person called Ernest A. Baker (https://en.wikipedia.org/wiki/Ernest_A._Baker (https://en.wikipedia.org/wiki/Ernest_A._Baker) ) wrote a book on the "Moors, Crags and Caves of the High Peak and Neighbourhood (1900)".

It seems very unlikely that such an influential and timely book was not owned or used by the people involved in the mass trespass.

In fact to go one point further, one of the dozen signatories of the letter which was sent to the government campaigning for the CROW act was in fact one Ernest A baker. As referenced in Forbidden land: The Struggle for Access to Mountain and Moorland. pg 173. (Tom Stephenson, ‎Ann Holt, ‎Mike Harding · 1989)

https://books.google.co.uk/books?id=i89RAQAAIAAJ&lpg=PA173&ots=etytDMTiBL&dq=%22G.%20H.%20B.%20Ward%22%20%22caves%22%20-dale&pg=PA173#v=onepage&q=cave&f=false
Title: Re: A big day for CRoW
Post by: Stuart France on October 13, 2020, 10:56:40 pm
To engineer a (civil) cave trespass case you need a cooperative stooge landowner who will sue a willing test case caver.  The aim of both sides is that the landowner loses the case.  Since he is conniving with the caver, it follows that the caver (or BCA) will have to foot the landowner’s inevitable costs when he loses the court case.  The landowner would have to demonstrate some meaningful loss or impact which would not in fact exist.

It is likely the court would discover the complainant and defendant were acting in unison and that the case was something of a sham.

So this is a very bad idea.

How about this one instead.  Someone applies to their county council to have some popular open cave turned into a Town/Village Green (TVG) on the grounds that people have used it for leisure without objection for 20+ years.  The cave is on CROW land.  The council has to decide if the cave is already open access or not, in other words whether TVG status is necessary in terms of providing public access to it.

Whatever the council decides, and it doesn't matter which way they go, they will end up in court on a JR concerning CROW access to caves.  If they say CROW applies, then you JR them arguing that it didn't, or vice versa, so the court has to make a decision on CROW.  A local council isn't Defra/WG/NRW and so isn't likely to mount much of a defence on a matter like turning a cave into a village green.

There's lots of way of going about this!

The question is whether there is a better use of BCA's money than legal cases - such as free issue power tools and dig materials and funding university caving club equipment.

Title: Re: A big day for CRoW
Post by: Jenny P on October 14, 2020, 02:21:44 pm
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!

Part of the problem is that if you consult a dictionary the definition of "open air" is usually given as "out of doors".  Similarly, if you look up the definition of "outdoor", you find it is "open air".

In point of fact they are not synomymous since "out of doors" suggests outside a building with doors, whereas "open air" tends to suggest no built surroundings and only sky above you.  That's probably why so many centres etc. refer to "Outdoor Education" and happily take young people caving which is, of course, out of doors although not, strictly speaking, in the open air in that you can't see the sky.

So it all comes down to an issue of semantics and whether the CRoW legislation was correctly worded.  It's almost become a circular argument and we won't get any further until the next review of CRoW decides to widen the scope of the activities named as being allowed.  There was a proposed review in 2009 which quite specifically suggested that caving ought to be included under the legislation but the review didn't seem to go anywhere and, at that time, those supposedly speaking on behalf of BCA preferred that it didn't.  Now that we have the backing of the BCA membership in favour of CRoW applying to caves, we need to make sure that the next chance of a review is followed up properly and with determination.
Title: Re: A big day for CRoW
Post by: Badlad on October 14, 2020, 03:23:18 pm
I understand that there are still some worthwhile avenues to explore with the legal team.  The case may have legs yet.
Title: Re: A big day for CRoW
Post by: Fulk on October 14, 2020, 03:26:00 pm
I don’t see why it’s relevant that caving should be considered by pedants as ‘outdoor’ or ‘open air’; surely the only thing that matters (as far as CROW is concerned) is simply getting to the cave. If there is free access, then fine, you do what you want when you get there; if not, then you have to work your way round it, perhaps with some sort of access arrangement.
Title: Re: A big day for CRoW
Post by: Jenny P on October 14, 2020, 03:44:00 pm
I don’t see why it’s relevant that caving should be considered by pedants as ‘outdoor’ or ‘open air’; surely the only thing that matters (as far as CROW is concerned) is simply getting to the cave. If there is free access, then fine, you do what you want when you get there; if not, then you have to work your way round it, perhaps with some sort of access arrangement.

The reason why it's important is that, according to Defra et al., CRoW only refers to "open air" activities and they claim this is synonymous with "outdoor".  I'm sure that's why they have come up with this daft claim that you can legally (i.e. CRoW approved) descend an open shaft or pothole as long as you don't go out of daylight at the bottom. (Or, alternatively go into a large cave entrance on the side of a mountain as long as you don't go into the further reaches where it's dark!) Don't forget that under CRoW you are welcome to walk up to a cave, as long as you don't try to enter it beyond the reach of daylight, at which point it become "non-CRoW-approved".  So access to the entrance to a cave isn't a problem, it's access INTO a cave itself which is not allowed.

It's plainly daft and immensely frustrating to be banned by virtue of such silliness!

Title: Re: A big day for CRoW
Post by: Martin Laverty on October 14, 2020, 04:53:06 pm
I don’t see why it’s relevant that caving should be considered by pedants as ‘outdoor’ or ‘open air’; surely the only thing that matters ... is simply getting to the cave. If there is free access, then fine, you do what you want when you get there; if not, then you have to work your way round it, perhaps with some sort of access arrangement.

I don't think I have ever seen the case of access to sea caves, which I assume is unhindered except by tides and storms, questioned. The Scottish legislation may well mean that the ingress under an owned land surface is indisputable to the lengthy sea caves there, but Wales has quite a few sea caves (some frequented by sea kayakers), and there are also caves in England in cliffs accessed from the shore - Arnside Cove Cave and  Beachy Head Cave come to mind... These may seem insignificant examples, but if we have to get into legal nitpicking, might this not be more materiel in the pro-access armoury?
Title: Re: A big day for CRoW
Post by: Fulk on October 14, 2020, 05:47:31 pm
Quote
The reason why it's important is that, according to Defra et al., CRoW only refers to "open air" activities and they claim this is synonymous with "outdoor".  I'm sure that's why they have come up with this daft claim that you can legally (i.e. CRoW approved) descend an open shaft or pothole as long as you don't go out of daylight at the bottom. (Or, alternatively go into a large cave entrance on the side of a mountain as long as you don't go into the further reaches where it's dark!) Don't forget that under CRoW you are welcome to walk up to a cave, as long as you don't try to enter it beyond the reach of daylight, at which point it become "non-CRoW-approved".  So access to the entrance to a cave isn't a problem, it's access INTO a cave itself which is not allowed.

Does anybody think that in real life that is going to be an issue? Are we going to be followed across the moors by landowners, gamekeepers, farmer, bailiffs, coppers, judges, court representatives, do-gooders, busybodies, parliamentary officials or anybody else, who will be quite happy to watch us walk over CROW land to a cave without let or hindrance, and then pounce on us as soon as we are about to leave daylight?
Title: Re: A big day for CRoW
Post by: nearlywhite on October 14, 2020, 05:58:19 pm
https://british-caving.org.uk/update-on-the-crow-judicial-review/

In case anyone wants the official press release!
Title: Re: A big day for CRoW
Post by: Ed on October 14, 2020, 06:53:43 pm
Define extent of day light..... Surely that's as far as solar generated photons get to.....  :spank:
Title: Re: A big day for CRoW
Post by: mikem on October 14, 2020, 08:22:53 pm
Day light is where you can see without artificial aid. Most of the coast is somewhat different in that private ownership only extends to the average high tide mark (or something along those lines).

Under current laws the landowner can only ask you to leave by the shortest possible route anyway - which is back onto the fell, where there is open access...
Title: Re: A big day for CRoW
Post by: tony from suffolk on October 15, 2020, 08:25:15 am
Define extent of day light..... Surely that's as far as solar generated photons get to.....  :spank:
So I guess you can't go down any caves at night. The more you drill down into this illogical stance on caves and CRoW, the more ridiculous it becomes.
Title: Re: A big day for CRoW
Post by: JoshW on October 15, 2020, 09:19:53 am
Define extent of day light..... Surely that's as far as solar generated photons get to.....  :spank:

Series of mirrors set up from the entrance of a cave onwards? or some of those bizarre light tunnel things you can get installed in your house for a small fortune
Title: Re: A big day for CRoW
Post by: Ed on October 15, 2020, 11:59:20 am
Define extent of day light..... Surely that's as far as solar generated photons get to.....  :spank:
So I guess you can't go down any caves at night. The more you drill down into this illogical stance on caves and CRoW, the more ridiculous it becomes.

Surely the wording prevents a walker  entering the likes of Attermire cave at night time....
Title: Re: A big day for CRoW
Post by: mikem on October 15, 2020, 12:08:24 pm
But there is no after dark ban - your eyes can adjust to the lower light levels of stars or moon. All laws have a line drawn somewhere & many of them are fairly arbitrary.
Title: Re: A big day for CRoW
Post by: Ed on October 15, 2020, 03:35:11 pm
But there is no after dark ban - your eyes can adjust to the lower light levels of stars or moon. All laws have a line drawn somewhere & many of them are fairly arbitrary.


doesn't mention after dark - DEFRA refer to DAYlight     

At night time / after sunset - there is no daylight so any cave is beyond the extent of daylight as it on the other side of the globe
Title: Re: A big day for CRoW
Post by: mikem on October 15, 2020, 03:50:30 pm
Indeed, but so is the fellside & you're still allowed to walk on that.
Title: Re: A big day for CRoW
Post by: PeteHall on October 15, 2020, 04:15:42 pm
Perhaps this just means we'll have to cave at night, when it isn't possible to determine the extent of daylight?  :doubt:
Title: Re: A big day for CRoW
Post by: mikem on October 15, 2020, 04:30:58 pm
Not that it matters as we do actually have permission to enter most caves on access land anyway.
Title: Re: A big day for CRoW
Post by: Ed on October 15, 2020, 05:09:33 pm
Perhaps this just means we'll have to cave at night, when it isn't possible to determine the extent of daylight?  :doubt:

Bit dodgy - it'll be dark  :o :lol:
Title: Re: A big day for CRoW
Post by: Jenny P on October 15, 2020, 06:28:59 pm
Just don't forget that not all CRoW land is open moorland miles from anywhere where no-one is going to worry about you tramping across the land (as long as it's not a shooting estate).  If you look at the Mendip Hills and the White Peak of Derbyshire, both areas with extensive cave systems, the CRoW access land is in separate patches, sometimes even single large fields, mixed in with ordinary farmland. 

CRoW access land has to be "unimproved land", so a field of rough grazing which has never been mowed or ploughed may well qualify.  The reason for the odd patchwork of sometimes single fields in some areas is that, if the land was ploughed up during WWII in an attempt to grow crops, it cannot be classed as "unimproved" and is therefore not CRoW land.  So you have a mixture of farmland and fields, some of which is CRoW land and some not, so you will be right under the noses of farmers - many of whom don't take kindly to trespassers.  That's why it is important to clarify the law and to deal sensitvely with farmers and landowners in areas like this.
Title: Re: A big day for CRoW
Post by: Stuart France on October 15, 2020, 10:54:01 pm
Forget all this light-penetrating-into-the-cave-entrance stuff.  That sort of nonsense from Defra might get discussed in court later on - if there is a ‘later on’.

This week’s court case was only a preliminary permission hearing.  All that we were asking for in court on Tuesday was the go-ahead to take our main case, i.e. the CROW caving matter, to a full court hearing.  Permission to do that was refused and I feel BCA should appeal.  The Court of Appeal is a paper process these days and relatively cheap to use - in legal terms.

It seems to me that the way the government goes about defending JR cases is to argue that no decision was ever made, or that the decision they made was not actually a decision, or if there was a clear decision then the government didn’t make it!  The aim is to wreck the claimant's case at the ‘seeking permission’ stage.  Thus the government never has to face the claimant’s real question later on - which in our instance is ‘does CROW etc apply to caving’.

In the 2016 JR case, started by myself and Nig Rogers, about CROW of course, NRW’s defence was to argue that a bat licence application submitted to them by some landowner could be ‘withdrawn’ by NRW.  Normal people would think that only an applicant can withdraw their own application.  But lawyers think this is an opportunity for endless legal argument for which they are paid.  The bat licence was in reality refused by NRW (which is therefore a justiciable decision of theirs) but NRW dressed it up to make it appear that no decision was made by saying NRW ‘withdrew’ the applicant’s application and this was done without the applicant’s knowledge.  Obviously the public body which has the duty to determine a licence application can’t withdraw it (i.e. they can only grant or refuse it) but that doesn’t stop their lawyers arguing that they can withdraw it so as to pretend that a grant/refuse decision was not made.

I’m sure you all can see the game.  Nig and I dropped our case as it was obvious we would be privately funding more of a court case about the meaning of the word “withdraw” and who is entitled to “withdraw” a licence application than the real case about CROW caving.

This time around the government is saying their advisory committee took the decision to exclude caving from the government’s access reform programme in Wales (which is intended only to broaden the public access) on the ground that caving is said by them to be outside the ambit of CROW.  This is equivalent to saying that SAGE decides on the government’s response to Covid and that SAGE at one and the same time may and may not discuss viruses.

I have to say Tuesday’s court hearing shattered my trust in British Justice.  I had expected every judge to keep an open mind until both sides had finished speaking and only then to reach a conclusion.  There are judges who ‘reserve’ their judgement for a couple of weeks while they think about what they heard and then publish a settled view.  But, as per the BCA statement which is linked above in this forum thread, that was not the case with our judge.

He was visibly taken aback not to find the government and NRW lawyers present in court but he quickly recovered and filled that void by asking the caving side all kinds of questions and making all kinds of suggestions that the absent defence team would otherwise have made themselves had they been present.  I cannot recall that he balanced this rather combative approach by putting himself into the defence corner and asking himself some awkward questions on our behalf having apparently become proxy defence team.  Anyway, it did not seem particularly even-handed to me.

In the end, as the BCA statement states, the judge turned his head away from the camera that was directly facing him and he looked continuously into some unseen screen while reading out his judgement without any hesitation, repetition or deviation.  Quite a steady matter-of-fact feel to this compared to his previous impromptu style.  I am struggling even now to understand how such a statement could not have been prepared almost entirely in advance.

NRW did not attend.  Defra sent a representative who said nothing.  The government as Defendant had stated in advance that they would not bother attending court as they thought it a waste of their time or public money.   However, less obvious explanations for choosing to be absent from court have also crossed my mind.

Title: Re: A big day for CRoW
Post by: PeteHall on October 16, 2020, 08:22:35 am
It seems to me that the way the government goes about defending JR cases is to argue that no decision was ever made, or that the decision they made was not actually a decision, or if there was a clear decision then the government didn’t make it!

It seems from what I've read that this pretty much sums it up.

And I'd speculate that the Welsh Government minister knows the same funny handshake as the judge too.

The whole thing stinks!  :furious:

You have to wonder if the Court of Appeal is any less crooked..
Title: Re: A big day for CRoW
Post by: Fjell on October 16, 2020, 08:58:53 am
I suppose you have to be Welsh to know quite how petty things can get. Many flee. Would it not be better to go to the mother lode and and get someone to add the word “caving” to something? They did so only recently when it came to defining being outside. Can’t imagine anyone in London gives a toss either way.

I suspect that 90% of the value for CRoW has already been extracted, even for caving. Landowners have thrown in the towel on excluding people from upland areas, and are getting scared that things like commercial shooting are on the skids. Everyone needs friends.

The real issue is that CRoW doesn’t give you the right to do anything but transit with no damage. Digging holes in the ground isn’t covered, and nor (technically) are things like bolting. You still need permission and the fabled insurance. Or you decide to try and own key bits (which introduces the interesting scenario of also owning the liability).
Title: Re: A big day for CRoW
Post by: ILT on October 16, 2020, 09:01:45 am
NRW did not attend.  Defra sent a representative who said nothing.  The government as Defendant had stated in advance that they would not bother attending court as they thought it a waste of their time or public money.   

To my entirely untrained mind this sounds like "we know we can't win so lets not bother"
or more cynically, "Aston assure us the new car will be delivered that morning"
Title: Re: A big day for CRoW
Post by: Stuart France on October 16, 2020, 09:45:50 am
Quote
To my entirely untrained mind this sounds like "we know we can't win so lets not bother"

Possibly so, but to my entirely untrained mind this also sounds like "we know we will win so lets not bother" attending.

How many JR cases are there where the Defendant (WG) and the First Interested Party (NRW) don't turn up in court?  Is this unique?

Another curiousity of the CROW case is how Second Interested Party (Defra) became involved.  Apparently the court itself invited Defra to join.  In which case, is using the discretion of court officials to boost the fire power of one side in a particular case normal judicial practice in this country?
Title: Re: A big day for CRoW
Post by: Badlad on October 16, 2020, 05:49:08 pm
So lets appeal.  I think we are.
 :thumbsup:
Title: Re: A big day for CRoW
Post by: mikem on October 16, 2020, 06:52:09 pm
May just be that DEFRA were invited due to it involving their policy...
Title: Re: A big day for CRoW
Post by: Dave Tyson on October 16, 2020, 08:10:03 pm
I think it's pretty poor that the judge decided that this action should fall at the first hurdle even though the defending parties didn't show up. That strikes me as biased without good reason and one wonders if words were exchanged before the action - especially if a prepared statement was involved.  Certainly to good grounds to appeal.

Of course the BCA could just declare that caving is permitted by CRoW, document it and spread the word and let everyone carry on caving - either Defra/NRW will turn a blind eye (expected) or they will have to challenge...

Dave
Title: Re: A big day for CRoW
Post by: mikem on October 16, 2020, 08:45:52 pm
This was a follow up to a previous decision from the court, so not that surprising.
Title: Re: A big day for CRoW
Post by: Stuart France on October 16, 2020, 09:09:20 pm
Quote
May just be that DEFRA were invited due to it involving their policy...
This was a follow up to a previous decision from the court, so not that surprising

How very generous of you to suggest that court officials are familiar with Defra's panoply of policies, especially in the arcane area of caving.  Defra's arrival in the case was not a follow up to any previous court decision - Defra were invited in by the court officials long before any court decision was made.

Since when have Courts been drumming up Claimants, Defendants and Interested Parties?  I know folks are on hard times now, but I don't think Courts are a 'business' in the strict sense of being an enterprise with monthly sales targets, watching their cash flow and creditor balances, etc.  Inviting in Defra was not a commercial move.  The motive for this was something else.

Not long back I noticed that someone at governmentlegal.gov.uk had got themselves into the email trail for this case which certainly caught my eye.  If you google it, you'll see this is the Treasury Solicitor and the Attorney General and all that.  That's how high this CROW case has reached.  They don't have any website that matches their domain name, but further info about them is here:

https://www.gov.uk/government/organisations/government-legal-department/about

Some seriously high up and well connected feathers have been ruffled!








Title: Re: A big day for CRoW
Post by: Jenny P on October 16, 2020, 11:23:38 pm
I have just come across the following quote re. caving in advice from a goernment department with regard to caving and Covid-19:

Quoted from a letter sent from the Dept of Digital, Culture, Media & Sport 1/6/2020:
“…With regard to caving, as mentioned in the department's letter of 29 May, all outdoor sports and physical activities are now permitted, ...
.

So, the Dept. of Digital, Culture, Media & Sport is on record as considering caving to be an outdoor sport

Make of this what you will.  Joined up thinking doesn't seem to apply here but maybe this should have been referred to as part of the case in Wales - which branch of government do we believe?
Title: Re: A big day for CRoW
Post by: mikem on October 17, 2020, 06:59:08 am
I expect DEFRA asked to be invited then, they can't just turn up without judge agreeing it. You are right that courts don't drum up participants, unless they express an interest.

Stuart, you have linked 2 comments that were not related - latter was to Dave's reply about it being the first hurdle, as it had already been refused in court previously.

I suspect it's also standard practice for governmentlegal to be copied in to any court cases their departments are involved in, that question legislation.

Jenny - makes no difference to argument, as other outdoor sports are specifically excluded from CRoW e.g. kayaking & mountain biking. It's the use of "open air" that concerns this discussion.
Title: Re: A big day for CRoW
Post by: Fjell on October 17, 2020, 09:53:06 am
I am not convinced this is the right war. There is a widespread campaign ongoing that public subsidy should maximise public goods, and access is top of the list. The post-Brexit settlement will the biggest change for decades. It can put the onus on subsidy-seekers to demonstrate what the public gets for it’s money. And most farmers round here are totally dependant on subsidy. And others who are not would like it thank you very much.
There has been much talk from the likes of Gove in recent years that this will happen, and I think this year could focus the public mind. Holding them to it will require widespread alliances. Caving is little, it needs to attach itself to some bigger dogs with more voters. Politicians like votes, preferably in bulk.
Title: Re: A big day for CRoW
Post by: Fjell on October 17, 2020, 11:39:10 am
There are very large farms, not a million miles away from discussions on here, who can’t be getting less than half their gross income from subsidy through the Basic Payment Scheme. And that is ending soon.

The current subsidy regime is planned to be phased out over the next 7 years and replaced with a public goods approach focussed on environment. This is where all the big-boy decisions are going to be made, and it’s where the billions a year will be spent. Including things like restoring bogs. This is the pressure point for public access for decades to come. Includes interesting phrases like paying for “Rights of way, navigation and recreation infrastructure”. Get your tax dollars spent on what you want it spent on.

https://consult.defra.gov.uk/elm/elmpolicyconsultation/supporting_documents/ELM%20Policy%20Discussion%20Document%20230620.pdf
Title: Re: A big day for CRoW
Post by: NewStuff on October 17, 2020, 06:02:36 pm
So, you're saying we should just give up?

Fuck that. I'm going caving, Don't like it? Sue me.
Title: Re: A big day for CRoW
Post by: mikem on October 17, 2020, 06:45:31 pm
No, he's saying be sensible about the wars you fight - not ones you are unlikely to gain anything..

In reality they can't do anything about you being on the fell (in access areas), so have to object to you going underground, in which case you just have to return to the fell, as long as you haven't caused any criminal damage, there is nothing they can currently do.
Title: Re: A big day for CRoW
Post by: Stuart France on October 18, 2020, 08:23:41 pm
Quote
I am not convinced this is the right war… The post-Brexit settlement will the biggest change for decades … And most farmers round here are totally dependent on subsidy.

This thread is becoming like one of those panel games where you have to give a word which is totally unconnected to the words used already.  How on earth did we get on to Farm Subsidies and Brexit when the topic is actually a High Court case about cave access?

The looming problem is that a manifesto commitment of the present Conservative government is to criminalise trespass.  That returns us to the 1930’s and the Access to Mountains Act (which never took effect because of WW2) but its general idea was to permit a little bit of public access but also to criminalise a lot.  It’s widely acknowledged that groups representing public access interests fell for this trick and prostituted their constituents, so not a great moment in sports leadership and one that those concerned would rather forget about.  So let’s not go there again.  Read more here:

https://www.oss.org.uk/about-us/our-history/saving-open-spaces-the-trespass-saga/

The problem BCA would have in the scenario that the CROW Caving matter isn’t settled, is that BCA can’t then advise its members with certainty if they are committing civil trespass (as the law stands now) or criminal trespass (as the law might become) when entering a cave on CROW Access Land without permission to do so.  I therefore suggest the present High Court action is both timely and has considerable merit as compared to the idea of manipulating landowners in the future via granting or withholding farming subsides in exchange for public access on a landowner consent basis.

Quote
Fuck that. I'm going caving, Don't like it? Sue me.

Do you know, last Tuesdays’ judge got very close to suggesting the above method - but in a more polite way.  You’re not allowed to record court proceedings so I’m going from memory here, but I think he was imagining at one point in his commentary that an alleged trespass case on CROW Access Land would be one way of getting the cave access rights issue into court.

The snag with that idea is that County Courts which would hear civil trespass cases, and criminal courts that deal with aggravated trespass, do not set legal precedents.  It would have to go to appeal to achieve that.  So if the underlying aim of the trespassing was to clarify CROW, it means the trespasser would have to make sure they lost the first court case in order to hope to win the appeal that followed and thus secure the legal precedent in their favour, they hope.  So this trespass court case idea is not very “attractive” (and I’m being diplomatic here) to say the least.

Therefore it is right to appeal the present Judicial Review case as the best way forward for securing caving interests into the long term as well as to clarify the current situation.
Title: Re: A big day for CRoW
Post by: Fjell on October 18, 2020, 10:33:52 pm
I see the BMC are on the case. They always do seem to be on the case, don’t they?

https://www.thebmc.co.uk/what-is-the-bmc-access-team-doing

Scroll down to “influencing current government policy”.

To save you the bother they advocate paying farmers and landowners for access in all three tiers (you need to read the link above to see what that means). I can well imagine that being a popular idea with them. Just think how much you could rack up on every hole in the Dales, eh? Feel free to dig some new ones etc. Cavers become a desirable fashion accessory for your farmer about town.

Title: Re: A big day for CRoW
Post by: Fulk on October 18, 2020, 10:58:15 pm
Quote from Dickens:

When Mr. Bumble, the unhappy spouse of a domineering wife, is told in court that "...the law supposes that your wife acts under your direction", replies:
"If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass - a idiot".
Title: Re: A big day for CRoW
Post by: NewStuff on October 19, 2020, 05:07:07 am
Quote
Fuck that. I'm going caving, Don't like it? Sue me.
Do you know, last Tuesdays’ judge got very close to suggesting the above method - but in a more polite way. 
Hence I said what I said, I can't see it happening, and I'm really not worried about judgements against me.
I'm done with polite, I tried for a couple of years, and it most of the time I get  idiots attempting to take it as a sign of weakness and push issues.
Title: Re: A big day for CRoW
Post by: Fjell on October 19, 2020, 09:46:33 am
The problem is that a reasonable person could conclude that CRoW was never intended to include caves. It was about fells and mountains. It’s hard to argue they “forgot” about caves and cavers, even if that is somehow bizarrely true. And it is a non-trivial imposition on the rights of landowners to take away the subsurface. And thus I seriously doubt a court is going to modify primary legislation to add it. And then add caving to the list of permitted activities. The government has to do that, and it might do something unfortunate. I am comfortable living in a haze of ambiguity - lawyers regard it as the Cheese Touch.

But I’m not a QC, so who knows. My experience is mostly with what was the DTI, but the behaviour of DEFRA is similar no doubt. They will obstruct by default (less effort), unless you can bring force to bear (ie they will get told off for doing nothing). Toying with people at the level we are working at is child's play because no-one is going to tell them off who matters. And I have to say being ignored by the Welsh government is a really profound level of being ignored. The guy in charge of it complains all the time of being ignored, not just by Westminster either.

The ELM discussion opens up non-CRoW land and will be directly relevant to most other areas in the UK. Failure to engage with it early will likely be an error. The document singles out limestone pavements as the sort of geo asset that needs paying for. It isn’t a huge step to caves. If nothing else, it might put a value on caves.
Title: Re: A big day for CRoW
Post by: Stuart France on October 19, 2020, 10:13:13 am
And it is a non-trivial imposition on the rights of landowners to take away the subsurface. And thus I seriously doubt a court is going to modify primary legislation to add it. And then add caving to the list of permitted activities.

Ah.  So CROW "takes away" the subsurface?  Can you point me to where that is done in the legislation please?  And while you are at it, where is this list of "permitted activities" in CROW or indeed in any other outdoors access legislation to which caving might be added?

You misunderstand how such things work in the UK.  Everything is permitted through some initial general purpose statement in legislation unless it is excluded by appearing a later list of exceptions.

In the case of CROW, the general statement is "open-air recreation on Access Land" and the exceptions to "land" are in Schedule 1 and the exceptions to "open-air recreation" are in Schedule 2.

In the case of LPA, the general statement is "air and exercise on [urban commons]" and the exceptions follow in the same section of the Act, namely camping, using a vehicle etc.

I will leave it as an exercise for the reader to discover the general access rights and specific limitations on Town and Village Greens and Government Forestry.


Title: Re: A big day for CRoW
Post by: Badlad on October 19, 2020, 11:25:15 am
Fjell.  With all due respect you seem to be conflating two different issues.  On the one hand we have a 2000 Act of parliament which increases public access to certain land.  All parties, including Defra, NE, NRW, BCA etc accept the law needs clarifying on whether it includes caving.  That is the focus of our efforts with the campaign and the JR case.  If this is clarified in favour of caving then this will set in law a legal right of access to cave in over 2500 caves including 71% of all caves across the three northern caves guide books and a number in the other regions.  That is a worthwhile goal.

On the other hand we have a new bill to replace the Common agricultural policy brought about by Brexit and cutting our ties with the EU.  Somehow farmers and landowners are going to need the huge sums of public money they rely on through a different route than at European level.  Hence ELMS, the environmental land management scheme.  This proposes to pay subsides in a different way which should include access to land.  Gove, if you can believe anything he says, as environment minister, stated that public money should be paid for public good and that included public access.  We shall see how that turns out.  The BCA has such limited resources compared to larger outdoor organisations that it has struggled to get caving represented.  The one, all outdoor, team meeting I attended was struggling to define a financial value for public access, how much for allowing access to water, to a crag etc.  It would strike me as odd that we would pay public money for access rights we already hold, footpaths, bridleways or to access land.  Hence gaining a legal right of access rather than paying for it is important.  Never the less the BCA does need to represent caving at ELMS level which unfortunately they have not really done since the meeting I attended on their behalf over two years ago.  Hopefully the new C&A officer is on the case.
Title: Re: A big day for CRoW
Post by: Fjell on October 19, 2020, 11:54:39 am
The ELM is but a subset of the even bigger issue of agricultural subsidies allowed by the WTO and others. The government needs to subsidise farmers because food prices just don't cover it in the UK. And the top wheeze allowed for this is environmental improvement and other public goods. So it will happen because there is no alternative short of shutting down farming or somehow imposing big rises in food prices and protectionism (will never happen). So in fact it is an open door coming up with a value for the great outdoors, the more extensive the better for the government.

Anyway, back to CRoW. When I look on .gov, it is pretty clear what it says:

https://www.gov.uk/guidance/open-access-land-management-rights-and-responsibilities

So if “everyone” wants to clarify it for caving, something that the government would not even have to go back to parliament for (minor change), why isn’t that happening right now? If the government opposed it, it would die regardless of court outcomes - they just add caving to prohibited-without-permission list. So really you are always back to knowing what the government would do. Does anyone know?
Title: Re: A big day for CRoW
Post by: droid on October 19, 2020, 06:05:51 pm
Strikes me the BCA hasn't got 'limited resources' it's got limited propensity to spend them.
Title: Re: A big day for CRoW
Post by: NewStuff on October 19, 2020, 07:24:56 pm
Strikes me the BCA hasn't got 'limited resources' it's got limited propensity to spend them.

This. A few hundred grand in the bank if I'm not mistaken, and it's being all Scrooge McDuck. I get there's some reason to be frugal, but not to the degree it is. Go push some appropriate legal buttons and pay for it as necessary. Most cavers will wholeheartedly back any action like that.

Also, fuck DEFRA, and the asinine, arbitrary, arse-backwards "limit of daylight" asshattery.
Title: Re: A big day for CRoW
Post by: JoshW on October 19, 2020, 07:37:48 pm
Strikes me the BCA hasn't got 'limited resources' it's got limited propensity to spend them.

In fairness, the use of BCA finances to pursue further legal action went to a vote at council prior to this hearing and was unanimously (if I remember correctly) agreed on. Since this latest set back there hasn't been a council meeting.

There are many things you can criticise BCA for, but from my (granted limited) experience so far, not being willing to chuck money at this legal case is not one of them.

I'm sure if the team that have been heading this up, come to council with some reasoned arguments as to why BCA should commit further money, and where it would go, that there will be a good selection of the council who would support this.

EDIT: and to add to this, a massive thanks from me (and I'm sure others) for putting their time towards this. As so often the case is that there is the money to do things, but nobody with the time to commit to it, so really appreciate the work that's gone (and hopefully will continue to go) into this.
Title: Re: A big day for CRoW
Post by: Badlad on October 19, 2020, 08:10:57 pm
Keep calm NewStuff.  The resources I spoke about a few posts up were volunteer resources not financial ones.  Volunteer time to pursue ELMS and other matters that effect access is what we are short of. 

Between the core BCA CRoW group we have spent considerable, and I mean considerable, free time on pursuing the campaign.  This has, in recent times anyway, been matched by BCA money.  Council voted, as JoshW says, to back the JR to the hilt with hard cash, members hard cash, no ifs no buts.  At the moment we are still well within the budget and we will appeal with some welcome additional support from the legal team.  On the CRoW matter all is in line with the wishes of the membership and that is well backed by council and the exec.

I think this thread got sidetracked into other matters that might effect access for which BCA are again struggling to meet volunteer resource and this has to come before any financial input can be identified.
Title: Re: A big day for CRoW
Post by: Badlad on October 19, 2020, 09:11:18 pm
Moderator Comment Please tone down the language New Stuff. I won't ask nicely again. We really want to keep any discussion topics civil. Please respect that.
Title: Re: A big day for CRoW
Post by: Duck ditch on October 20, 2020, 11:23:55 am
CROW allows for walking, climbing, running and sightseeing. Short of crawling what are cavers doing when going caving if it’s not walking climbing and sightseeing.  To stop caving is to stop the act of turning on a light to achieve all the above. 
Swimming is banned so that’s cave diving out, but why ban swimming.  A bit insidious to consider swimming as harmful not unless you think swimmers are fish botherers.
Keep going, it seems to be a malicious act to think caving is somehow a different form of motion.
Title: Re: A big day for CRoW
Post by: mikem on October 20, 2020, 11:48:38 am
Swimming does appear to be excluded because many upland landowners rely on fishing for income & the fish do nest in river bed gravels.
Title: Re: A big day for CRoW
Post by: zzzzzzed on October 20, 2020, 12:10:59 pm
The reason why it's important is that, according to Defra et al., CRoW only refers to "open air" activities and they claim this is synonymous with "outdoor".  I'm sure that's why they have come up with this daft claim that you can legally (i.e. CRoW approved) descend an open shaft or pothole as long as you don't go out of daylight at the bottom. (Or, alternatively go into a large cave entrance on the side of a mountain as long as you don't go into the further reaches where it's dark!) Don't forget that under CRoW you are welcome to walk up to a cave, as long as you don't try to enter it beyond the reach of daylight, at which point it become "non-CRoW-approved".  So access to the entrance to a cave isn't a problem, it's access INTO a cave itself which is not allowed.

Many caves have been used continuously for over 20 years - doesn't that mean that legally they have become a public right of way?
Title: Re: A big day for CRoW
Post by: mikem on October 20, 2020, 04:53:04 pm
Not if landowners have requested beforehand that we ask permission to do it.
Title: Re: A big day for CRoW
Post by: Duck ditch on October 20, 2020, 05:35:10 pm
Isn’t it strange that you can walk around a hole in the ground but not go in the middle. Isn’t it strange you can’t upset a fish with your foot but you can with a hook.  No it’s an unnecessary petty interpretation of CROW.  Keep up the fight. 
Title: Re: A big day for CRoW
Post by: NewStuff on October 20, 2020, 06:26:07 pm
Not if landowners have requested beforehand that we ask permission to do it.
Can you explain to us why you insist on sticking up for and taking the side of the landowner? Any chance to get a "because the landowner says" type comment in there and you're on it... It's almost as if you hate caving...
Title: Re: A big day for CRoW
Post by: AR on October 20, 2020, 09:50:30 pm
Not if landowners have requested beforehand that we ask permission to do it.
Can you explain to us why you insist on sticking up for and taking the side of the landowner? Any chance to get a "because the landowner says" type comment in there and you're on it... It's almost as if you hate caving...

Sigh... actually, he's stating established (and sound) legal principle here - right of way can be established if there is proven continuous unimpeded access for several years *without* permisson of or agreement with the landowner. However, if the owner has made some sort of agreement or stated that access is by their permission then no claim can be brought for creation of a right of way in law,hence the signs you sometimes see about a route not being a public right of way. In short, if there's any sort of access agreement for a cave then forget about trying to claim right of way exists by dint of continuous usage.

However, since we're on points of law here perhaps it's time to apply the principle of reductio ad absurdam to the "limit of daylight" rule. If the limit of daylight is the thing that determines whether CRoW access applies or not, then that suggests that daylight is the determinant of access. If that is the case then when there is no daylight,  does access land cease to be so and CRoW not apply at night?
Title: Re: A big day for CRoW
Post by: mikem on October 20, 2020, 10:32:56 pm
Wot 'e sed. I'm sure we already covered CRoW access in dark, but then this discussion can go round in circles for ever...

Basically it isn't definitively denied & the chances of a landowner preventing you accessing a cave are negligible (& currently they can only ask you to return to the fell).
Title: Re: A big day for CRoW
Post by: droid on October 21, 2020, 02:24:50 am
It's far more likely that caving never came up on the radar Mike...
Title: Re: A big day for CRoW
Post by: mikem on October 21, 2020, 05:40:35 am
No, it didn't, climbing didn't either, but got itself included in the next round, whilst various other outdoor sports were particularly excluded in the original legislation. The limit of daylight was an added interpretation when caving was mooted later on, but there is no ban against walking in the dark, which is what others are comparing it to.
Title: Re: A big day for CRoW
Post by: Fjell on October 21, 2020, 08:45:43 am
Excluding climbing was legally absurd. Everyone knows climbing when they see it, but try defining it. Your hands touching the ground? Using a rope?
You would include Striding Edge, but exclude Sharp Edge? A matter of opinion, some walk the latter. And then everyone goes all Alex Honnold, which would cause palpitations (it certainly gives me palpitations watching it).
The point being it was the same as going walking, just a slightly more challenging route.
For the average person, caves are not hills and mountains. They are nasty places that honest God-fearing folk would avoid, and it fact it shouldn’t be allowed etc.
Title: Re: A big day for CRoW
Post by: Fjell on October 21, 2020, 09:05:32 am
But the real answer is that the subsurface is historically a high-value asset drenched in legality and precedent. The CRoW act didn’t even attempt to address this in any way whatsoever. It’s not that they got it wrong, they didn't think of starting.
Just saying as a subsurface engineer sort of guy.
Title: Re: A big day for CRoW
Post by: Badlad on October 21, 2020, 09:24:45 am
The legislators were aware of caving.  It is mentioned in the Hobhouse Report which played a significant role forming a basis for the Act.  Caving, via the NCA and others, responded to the consultation in 1998 and that is detailed in the consultation document.  This quote from one of my submissions to a select committee sums up the issue.

10.The BCA and its officers have conducted an exhaustive search of Hansard, which has not turned up a single comment from anyone involved in the parliamentary debates suggesting that caving ought to be treated in a different manner to its sister sports. Indeed, speaking for the then-government in the House of Lords, Baroness Farrington successfully urged the withdrawal of an amendment which listed the activities that would be covered by the Act. She did so by arguing that such a list would be ‘undesirably restrictive and unnecessary,’ and would, wrongly, ‘exclude activities which can properly take place inside or outside… activities not necessarily carried out in the open air.’ In the then-government’s view, only activities which were specifically excluded from the CROW Act, such as hangliding, would not be covered.  The Rt Hon Chris Mullin, Parliamentary Under Secretary of State for the Environment, Transport and the Regions clearly stated in April 2000, ‘We are trying to allow everything that is not specifically excluded.’  There is no schedule that lists caving as such an excluded activity.

Also a few snippets from the Dinah Rose QC opinion which I extracted for the same submission explains the case a little more...

‘The intention of the legislation is to permit access to the countryside, for the purposes of the recreations that may be carried out in such areas. “Open-air” in this context is best read in the sense of “outdoor” (ie., not within a building). Excluding caving from the definition on the ground that caves are underground tunnels would lead to arbitrary distinctions. Some caves include shafts which are open to the sky.
‘It is easy to see why Parliament was not intending to permit the public to access buildings. It is much harder to see why it should have been concerned to permit access only to locations with a view of the sky, or unconstrained air. Caving is an activity of the same kind as climbing, abseiling, scrambling, canyoning and walking, all of which are obviously intended to be included within CROW. There does not appear to be any policy reason for excluding caving from the scope of the Act.
‘It is harder still to see why Parliament should have intended, as Natural England apparently believe, to include within the scope of CROW caves which are “open to the sky”, on the side of mountains, or with open shafts, but to exclude cave systems with underground passages. The distinction is unprincipled. It tends to undermine the policy of the Act, by placing an arbitrary restraint on some forms of caving but not on others…
‘Put shortly, the interpretation of “open-air” in CROW as meaning “open to the sky” rather than “outdoor” is in my view too technical and narrow, and does not accord with the policy of the act, or lead to a rational outcome.”
‘I conclude, …that the better view is that caving is a form of ‘open-air recreation’ for the purposes of CROW, and that cavers are permitted to enter and remain on access land as shown on relevant maps, including cave systems falling within those areas, for the purpose of recreational caving.’
Title: Re: A big day for CRoW
Post by: mikem on October 21, 2020, 10:32:12 am
Hobhouse 1947 report for the national parks committee?
Title: Re: A big day for CRoW
Post by: Jenny P on October 21, 2020, 12:35:16 pm
It's far more likely that caving never came up on the radar Mike...

There is actually a report published in, I think 2009, by English Nature's predecessor, which advocated a review of the working of the CRoW legislation.  In one of the appendices of this very lengthy report was a suggestion for further activities which might be included among those not banned.  (Odd wording here because the legislation specifically bans certain activities and, by omission, others should therefore be allowed.  Note that caving is NOT listed under the original legislation as a "banned activity" - hence the view that, if it isn't banned, then it must be allowed.)  Among activities listed in this 2009 report as being possibilities under CRoW as being "acceptable" was "caving/potholing". 

We hoped that this would settle the matter when the review took place; however, others put their oars in, unbeknowst to those of us who were hoping for clarification, and nothing seems to have been done.  However, knowing what I do now, I suspect this report was the trigger for the item which later appeared in Descent claiming that "BCA's policy" was that caving was not covered by CRoW.  This claim was something which was not correct when it was written and has subsequently been overturned comprehensively by the later ballot organised by BCA.
Title: Re: A big day for CRoW
Post by: Bob Mehew on October 21, 2020, 03:10:52 pm
Hobhouse 1947 report for the national parks committee?
Appendix A in describing the Peak District mentions caves at page 92 as does the part describing the Yorkshire Dales at page 97.
Title: Re: A big day for CRoW
Post by: zzzzzzed on October 21, 2020, 04:38:34 pm
Many caves have been used continuously for over 20 years - doesn't that mean that legally they have become a public right of way?
Not if landowners have requested beforehand that we ask permission to do it.

When I started caving in the early 80s some of the old guys I got to know in Bernie's used to say 'I've been caving for 30 years and I've never asked permission to go down any cave, and I'm not going to start now'.

I only used to be an occasional caver until recently, but I'd been caving for about 25 years before I discovered that a permit system even existed.

So many caves have been used without permission for decades and therefore will have become rights of way before any sort of permission system became established.

Assuming, of course, that there are legal precedents for having a right of way underground.
Title: Re: A big day for CRoW
Post by: Bob Mehew on October 21, 2020, 05:06:14 pm
So many caves have been used without permission for decades and therefore will have become rights of way before any sort of permission system became established.
The challenge is producing the evidence that they were used by many without permission.  Your tale of meeting an oldster who said 'so & so' would not be acceptable.  We would have to get many people to produce witness statements saying that on such and such a date they accessed the cave without encountering any objection (as well as showing that there were no signs and so on and so on).  I would guess the number of such statements would have to be large and many more than the numbers who did ask for permission.
Assuming, of course, that there are legal precedents for having a right of way underground.
As I recall, a right of way is defined as going between two places.  That would be a bit difficult to claim for a single entrance cave.  So I guess there would plenty of legal argument about whether the process of establishing a right of way could apply to a cave passage.  I see it as even riskier approach than seeking a judicial interpretation of CRoW.
Title: Re: A big day for CRoW
Post by: mikem on October 21, 2020, 05:30:34 pm
Judicial interpretation much easier, as you would also have to do it for each cave - many of which could show long standing agreements with cncc (or possibly even its predecessors) - doesn't matter if people were accessing them without permission, provided a system existed.
Title: Re: A big day for CRoW
Post by: nearlywhite on October 25, 2020, 09:38:55 am
The BCA executive have released a short statement which you can find at: https://british-caving.org.uk/crow-case-update/

this is the statement from the BCA exec in full:

'After careful consultation with the CRoW Convenor and the Lawyers involved in supporting the action, the BCA Executive unanimously agreed with their recommendation to proceed to lodge an “Appellant’s Notice” in the Court of Appeal.'

If you have a strong view on the action then you may wish to comment on the posts, currently there are 4 posts on the last story expressing concern over the spend. There is also a council meeting on the 4th of November which would be the ideal place for one of your representatives to discuss it.