Author Topic: Premature action on CRoW?  (Read 35656 times)

Offline Pitlamp

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Re: Premature action on CRoW?
« Reply #25 on: November 05, 2015, 04:55:32 pm »
Thanks for your thoughts above Ian.

FWIW I voted against the CRoW initiative but I then decided to support it following the vote, because that's what a majority of members clearly wanted. (Even though it was a small majority of all members, it was constitutional.) I still think it's wrong but I'm willing to be persuaded by evidence and I greatly respect that the proper process was followed.

See? Doing things properly is far more powerful than trying to cut corners. It puts you on solid ground. I don't actually know whether what's been happening is constitutional or not - I've not had time to get my head around it. But I damn well object to people apparently suggesting that a constitution should just be ignored, on principle (regardless of the initiative in question).

If (in any situation) a constitution doesn't do what members want - then change it. What's the problem?

Do it right and you'll probably get what you want in the end. Do it wrong and you store up trouble for yourself and you may be undermined later in the process.

But please understand I'm NOT suggesting for a moment that anyone's acted unconstitutionally in this situation under discussion - because I've just not had time t think about it properly.

What I would like to point out is my great respect for the efforts of those involved (Tim included). I still have misgivings that this move is wise but it's been voted for properly and I have to accept that. None of the above is an attempt to "derail" anything - it's an appeal for basic common sense to prevail.

Offline Alex

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Re: Premature action on CRoW?
« Reply #26 on: November 05, 2015, 05:00:28 pm »
Quote
But - speaking generally - as far as I'm concerned anyone who thinks a constitution should be ignored for convenience either needs cosmetic surgery to shorten their nose or a very good optician.

I will book an appointment tomorrow then Pitlamp lol. But like you I have only skim read before I decided it did not tell me much at all really. What are the action points? What is, if anything going to change on the ground (or under it) or are we just going back and forth forever?.

Hmm I think I best keep my "long" nose out about these things, not really my cup of tea and let the council of elders get on with it.
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Offline paul

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Re: Premature action on CRoW?
« Reply #27 on: November 05, 2015, 05:21:45 pm »
I bet Benny Rothman et al. weren't worrying about constitutions when they planned and carried out the Kinder Mass Trespass in 1932.
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Offline ah147

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Re: Premature action on CRoW?
« Reply #28 on: November 05, 2015, 05:31:55 pm »
I bet Benny Rothman et al. weren't worrying about constitutions when they planned and carried out the Kinder Mass Trespass in 1932.

We all off to Fountains Fell then?

Offline Bob Mehew

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Re: Premature action on CRoW?
« Reply #29 on: November 05, 2015, 05:33:46 pm »
I agree with Tim's postings bar two points of detail, it is Clause 4.5 not 4.6 and one should read BCA Council & AGM minutes from June 2014 forwards.  I believe a simple summary of the BCA Council's view is that:

a) 4.5 has no relevance if the land owner has no legal right to withhold access.
b) There is a strong view that CRoW does apply to going caving.
c) That it is acceptable to seek a reinterpretation of CRoW.
d) Tim has been empowered on behalf of BCA to seek such a reinterpretation. 
e) It would require a change in the constitution to seek a change to the words in CRoW to make it clear that CRoW does apply to going caving.

Such a change to the constitution would require 70% voting in favour in both Houses (Individuals and Groups).  I will concede that that currently even though 61.9% voted yes to the ballot, it is likely that a proposal to change the constitution would not make the threshold in the House of Groups since sufficient clubs would vote against it.

No doubt the poor BCA Secretary will comment if he feels I have misrepresented BCA Council's view.

Offline David Rose

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Re: Premature action on CRoW?
« Reply #30 on: November 05, 2015, 05:53:30 pm »
I like the suggestion of a mass trespass, but the situation on Fountains Fell is quite good now, I believe. Great Whernside is the place to look at. Perhaps Simon Beck would like to lead a mass descent of Mossdale Caverns? Or if that puts people off for obvious reasons, Oddmire Pot?

Offline braveduck

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Re: Premature action on CRoW?
« Reply #31 on: November 05, 2015, 06:02:21 pm »
I don't think I dream't this ,but the other day on Facebook somebody I do not know
mentioned that a relative was working with Lancashire council on allowing CROW access to
caves in that County. I have no way of finding that posting now.
I did not have time to follow it up and am regretting this now !

Offline Clive G

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Re: Premature action on CRoW?
« Reply #32 on: November 05, 2015, 06:35:46 pm »
What an amazing thread. We had a referendum. Its result made crystal clear what the majority of BCA members want. And now Mr Burgess suggests that by lobbying MPs, Tim - who has worked extremely hard on this issue - is in breach of the BCA constitution. Thank you Rhys for your very sensible contribution.

Those of us who support the extension of CROW to caving believe the law already recognises this, but has been misinterpreted. We are not at this stage campaigning to change it.

To think that at 3:35pm yesterday (4/11/15), under the concreting Drws Cefn thread,  I innocently enquired:

Quote
Originally, open access land under the CROW Act allowed all sorts of activities, with various provisos, but, for some unknown reason, access for the purpose of caving wasn't included. Has this now been corrected?

I wholeheartedly agree with the comments in David's initial quotation and feel that Tim is doing an excellent job and may he be given the necessary support to see the work through to a successful conclusion.

People are concerned about the BCA constitution ( http://british-caving.org.uk/wiki3/doku.php?id=about:documents:bca_constitution ) so I've taken a look at it and, from what he has outlined, Tim is acting quite constitutionally under Clause 3.3 of the AIMS section:

Quote
3.3. To act as a national spokesman and negotiating body on behalf of Members, when required by them to do so; to protect members' interests; and provide facilities, when required, to co-ordinate effort where interests overlap.

Under the GUIDING PRINCIPLES in section 4, the clause 4.6 to which some of those above appear to be appealing is:

Quote
4.6. That the owners and tenants of property containing caves have the right to grant or withhold access. Where caving bodies have control of access delegated to them by the owners, such access should be obtained and granted as freely as possible for all responsible cavers, within the terms of those agreements. When obliged to make new agreements, the appropriate body should endeavour to ensure that this freedom is maintained or improved.

The first sentence clearly applies where land does not fall under the open-access arrangements provided by the CROW Act. The second sentence allows for the fact that in certain instances landowners have delegated control of access to caving bodies, "where such access should be obtained and granted as freely as possible for all responsible cavers, within the terms of those agreements." There's also a third sentence which refers to new agreements that should ensure that this freedom is maintained or improved."

Well, if Tim is able to establish that the CROW Act already applies to caving, since caving has not yet been recognised by DEFRA and landowners under the CROW Act, this would constitute forming a new agreement between cavers and landowners, according to the law of the land and incorporating any special landowners' requirements when cavers are crossing their land to enter caves. The landowners' special requirements are likely to be use of specific paths, not climbing over walls or fences, not damaging archaeological features or agricultural crops or man-made structures and leaving whatever guards might be in place at the cave entrance to help protect others (including animals) from accidentally falling into the cave.

Offline alastairgott

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Re: Premature action on CRoW?
« Reply #33 on: November 05, 2015, 06:46:33 pm »
I think this was one of the kids from SUSS called Jack

I don't think I dream't this ,but the other day on Facebook somebody I do not know
mentioned that a relative was working with Lancashire council on allowing CROW access to
caves in that County. I have no way of finding that posting now.
I did not have time to follow it up and am regretting this now !


Offline JasonC

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Re: Premature action on CRoW?
« Reply #34 on: November 05, 2015, 07:23:42 pm »
No misgivings at all, other than being concerned that Tim will find his efforts being needlessly obstructed from some quarters.

Seconded
(well, more like twenty-seconded by now....)

Offline Clive G

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Re: Premature action on CRoW?
« Reply #35 on: November 05, 2015, 07:25:26 pm »
Spotting a missing quotation mark, I've just tried to edit the following sentence from my posting at 6.35pm today (5/11/15), but the time limit for doing so has expired:

There's also a third sentence which refers to new agreements, whereby "the appropriate body should endeavour to ensure that this freedom is maintained or improved."

Offline tony from suffolk

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Re: Premature action on CRoW?
« Reply #36 on: November 05, 2015, 07:56:48 pm »
Being a retired caver, I seldom comment on such matters but I do feel compelled to express my dismay at this pathetic attempt to undermine a clear mandate to pursue the clarification (not reinterpretation) of what is a British law and clearly, to anyone with a modicum of sense, designed to give cavers the freedom the Act is designed to bestow on us.

Very pathetic, sour grapes, and I'd expected better of you Peter.
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Offline Simon Wilson

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Re: Premature action on CRoW?
« Reply #37 on: November 05, 2015, 07:59:49 pm »
I bet Benny Rothman et al. weren't worrying about constitutions when they planned and carried out the Kinder Mass Trespass in 1932.

We all off to Fountains Fell then?

Pay attention. A year ago access to Fountains Fell changed. There are now no permits and all you need to do is make a courtesy call at the appropriate farm.

The CroW act might well have had an effect on helping Mr. Coates to change his mind.


Offline ah147

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Re: Premature action on CRoW?
« Reply #38 on: November 05, 2015, 08:00:41 pm »

I bet Benny Rothman et al. weren't worrying about constitutions when they planned and carried out the Kinder Mass Trespass in 1932.

We all off to Fountains Fell then?

Pay attention. A year ago access to Fountains Fell changed. There are now no permits and all you need to do is make a courtesy call at the appropriate farm.

The CroW act might well have had an effect on helping Mr. Coates to change his mind.

My apologies! Knuckles presented for the ruler!


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Offline droid

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Re: Premature action on CRoW?
« Reply #39 on: November 05, 2015, 08:07:00 pm »
I agree with Pitlamp.

What's the point of a Constitution if parts of that Constitution that become inconvienient are simply ignored?

Whatever the political machinations of the various parties involved, seems to me that Peter's comments need more consideration that the rather facile comments that have been made by some.
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Offline BCA Secretary

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Re: Premature action on CRoW?
« Reply #40 on: November 05, 2015, 08:23:02 pm »
I believe a simple summary of the BCA Council's view is that:
a) 4.5 has no relevance if the land owner has no legal right to withhold access.
b) There is a strong view that CRoW does apply to going caving.
c) That it is acceptable to seek a reinterpretation of CRoW.
d) Tim has been empowered on behalf of BCA to seek such a reinterpretation. 
e) It would require a change in the constitution to seek a change to the words in CRoW to make it clear that CRoW does apply to going caving.
(...)
No doubt the poor BCA Secretary will comment if he feels I have misrepresented BCA Council's view.
Apart from the fact that it is indeed 4.6 that we are discussing, I think Bob has accuratly summarise the general view of Council. I should add - because I don't think it's been mentioned in this thread yet - that the June 2015 AGM agreed the following:
Quote
This meeting confirms that the Constitution allows BCA to seek clarification from DEFRA and Natural England on their existing guidance on The CRoW Act and its application to caving.

Offline Simon Wilson

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Re: Premature action on CRoW?
« Reply #41 on: November 05, 2015, 08:27:14 pm »

I bet Benny Rothman et al. weren't worrying about constitutions when they planned and carried out the Kinder Mass Trespass in 1932.

We all off to Fountains Fell then?

Pay attention. A year ago access to Fountains Fell changed. There are now no permits and all you need to do is make a courtesy call at the appropriate farm.

The CroW act might well have had an effect on helping Mr. Coates to change his mind.

My apologies! Knuckles presented for the ruler!


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I'm sure Alan Speight and Johnny Latimer the CNCC Access Officer will accept your apology.

It isn't just Fountains where access is a lot improved and things are moving along behind the scenes in other areas. I believe the CRoW act has had an effect in several ways. One thing is that landowners know that they couldn't police a permit system on CRoW Access Land.

Offline David Rose

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Re: Premature action on CRoW?
« Reply #42 on: November 05, 2015, 08:39:00 pm »
Thank you Clive for this excellent post.

To clarify the point you raised yesterday in the the Drws Cefn thread: there are some activities explicitly excluded from the provisions of the CROW Act - for example, quad biking. Caving is not one of them. Moreover, there is good evidence that the parliamentarians that debated the Act always intended caving to come within its scope. We (Tim, Bob and the others who have been involved in this) argue that its current interpretation by Defra and Natural England, that cavers are free to descend entrance shafts or go into horizontal entrances but only so far as they remain in sight of daylight, is legally perverse, and does not reflect parliament's intention or any declared public policy.  This is the nub of the issue.

Offline jasonbirder

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Re: Premature action on CRoW?
« Reply #43 on: November 05, 2015, 10:16:43 pm »
There was a pretty clear majority in the BCA referendum in favour of supporting CRoW access...

But I guess a few back-room lawyers believe they can delay and circumvent that decision by quoting subsection (b) paragraph 27 of Article XXVI dated 185 in the hope of diverting a democratic decision by the club members...

The BCA isn't some dry legal document...its whatever the Cavers that constitute it decide...and they've made their decision pretty clear...

Offline Sue White

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Re: Premature action on CRoW?
« Reply #44 on: November 06, 2015, 06:05:38 am »
cavers are free to descend entrance shafts or go into horizontal entrances but only so far as they remain in sight of daylight

Right then chappies, all we need to do to satisfy NE is set up a system of carefully positioned mirrors in the relevant caves to ensure sufficient daylight penetration. But no caving at night time you naughty little cavers!
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Offline Simon Wilson

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Re: Premature action on CRoW?
« Reply #45 on: November 06, 2015, 07:23:08 am »
Is there a legal definition of 'daylight'?

I think that NE might have to specify a number of luxes.

Tim, perhaps you could ask NE this question and if we get an answer on the number of luxes then I will propose that the CNCC buy a light meter.

https://en.wikipedia.org/wiki/Lux

Surely NE would also have to say whether their interpretation means that the daylight has to be visible at the time that you are in the cave or if you can go into the cave as far as daylight could be seen on the sunniest day. What if you got delayed in the cave and it went dark while you were in there? I think it would have to be the latter so that the CNCC can place a marker in every cave. If you have ever walked about in GG main chamber with your light turned off you will know that the amount you can see varies a lot according to the time of day, cloudiness and the amount of water flowing etc.


Offline ttxela

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Re: Premature action on CRoW?
« Reply #46 on: November 06, 2015, 07:40:58 am »
None of that is really necessary, simply seal a small amount of daylight in a glass jar before you go underground and keep it handy to show any inspectors you meet down there.  :thumbsup:
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Offline Peter Burgess

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Re: Premature action on CRoW?
« Reply #47 on: November 06, 2015, 08:12:54 am »
I am reluctant to make any further comment on this, but would ask you respectfully to consider the following:

I live in a large estate, and for some reason there are a lot of left-hand drive cars owned by many of the residents. The local residents' association decided that perhaps it would be much safer and more convenient for everyone if we changed the rules so that we could all drive on the right hand side of the road within the estate. So a poll was set up, and every resident was asked to choose whether they wanted to drive on the left hand side of the road or on the right hand side. Because so many residents thought they woud benefit from being able to drive on the right, a significant majority voted for it. I recall something like two thirds or more wanted the change.

So the local association agreed to push to get the change in place, but when they looked deeper into the issue, it was discovered that they would have to get a change in the legislation to allow this. The association agreed that it would be best to wait until the legislation had been changed before any further moves could be made to fulfill the wishes of the majority. Nevertheless, many residents were simply too impatient and did not want to wait. So they started to use the other side of the road regardless. Well, that started to create problems as you can imagine. The problem was brought before the local police, who confirmed that until the law had been changed, everybody should continue to use the left hand side of the road, and to leave the enforcement of the traffic rules to them. Even so, the police agreed that it would be beneficial to everyone once the law had been amended.

Unfortunately, even the traffic police started to use the right hand side of the road and there was then nobody to call upon to bring the estate to order, and to ensure that the transition that had been agreed would happen using due process and within the agreed framework.

The result was a significant amount of unnecessary road rage and long-lasting embitterment between residents who otherwise all shared the same values and a common desire to get along together peacefully. And if you bothered to ask any one of the residents who voted to maintain the status quo, every one of them would tell you that they were happy to accept the change as they believed that proper use of the democratic process was probably the way all local issues should be decided.

As for how the police behaved, that is a matter that is still being investigated. When the police don't enforce their own rules, who else is there to call upon?

Feel free to pull the analogy apart. I am certain some of you will be happy to do so. It will keep us amused on a Friday.

Offline Simon Wilson

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Re: Premature action on CRoW?
« Reply #48 on: November 06, 2015, 08:15:36 am »
None of that is really necessary, simply seal a small amount of daylight in a glass jar before you go underground and keep it handy to show any inspectors you meet down there.  :thumbsup:

Don't be so daft. It would have to be a light proof container obviously.

Offline Ouan

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Re: Premature action on CRoW?
« Reply #49 on: November 06, 2015, 08:48:25 am »
The BCA constitution section 4.6. "That the owners and tenants of property containing caves have the right to grant or withhold access" should be revised to something along the lines of "4.6. That the owners and tenants of property containing caves, where they have the legal right to do so, have the right to grant or withhold access." This is irrespective of whether CRoW is shown to apply to caving.