Author Topic: Premature action on CRoW?  (Read 35655 times)

Offline MarkS

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Re: Premature action on CRoW?
« Reply #50 on: November 06, 2015, 08:50:38 am »
Peter, I think the important difference between your analogy and the issue in this thread is that Tim is simply seeking clarification of a currently unclear law, not for a change or exception to a very clear law.

I agree with the posts above that say the BCA should ensure they act constitutionally. It appears that the issue here is that the point in question (is it OK for the BCA to seek clarification of the law as it stands) is not directly addressed in the constitution. As the opening few posts above point out, different BCA committee members have put forward different takes on this.

To me it seems that the common sense approach in this situation, having just polled the membership on this issue, would be to act positively on the back of the poll result.

I think many of us appreciate Tim's efforts on this.

Offline Cap'n Chris

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Re: Premature action on CRoW?
« Reply #51 on: November 06, 2015, 08:51:16 am »
Correct me if I'm wrong but doesn't CRoW apply to Access land and, if so, it remains the case that landowners of AL can close it off to the public for something like 25 times a year for periods of up to 2-3 days, i.e. six months of weekends. If this is true then even if CRoW applies to land it still doesn't mean there's a carte blanche to do as you wish, whenever you wish, wherever you wish.

Offline Pitlamp

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Re: Premature action on CRoW?
« Reply #52 on: November 06, 2015, 08:55:52 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!


 :lol:  :lol:  :lol:  :lol:   Lovely!

Thank you for bringing in a much needed spot of humour, to keep things in perspective!

Offline Pitlamp

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Re: Premature action on CRoW?
« Reply #53 on: November 06, 2015, 08:57:30 am »
P.S. anyone got access to a cheap supply of optic fibres . . . . ?   :lol:

Offline Bob Mehew

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Re: Premature action on CRoW?
« Reply #54 on: November 06, 2015, 09:10:48 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:

Sorry to be a wet blanket but I think day light is a bit of a red hearing.  One of the key phrases is 'open-air' (with or without a hyphen) qualifying recreation.  I have a distinct impression that the interpretation by DEFRA hinges on the claim that a cave does not have 'open air'. 

Offline Stuart Anderson

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Re: Premature action on CRoW?
« Reply #55 on: November 06, 2015, 10:15:32 am »
Correct me if I'm wrong but doesn't CRoW apply to Access land and, if so, it remains the case that landowners of AL can close it off to the public for something like 25 times a year for periods of up to 2-3 days, i.e. six months of weekends. If this is true then even if CRoW applies to land it still doesn't mean there's a carte blanche to do as you wish, whenever you wish, wherever you wish.

22 Exclusion or restriction at discretion of owner and others.

(1)Subject to subsections (2) and (6), an entitled person may, by giving notice to the relevant authority in accordance with regulations under section 32(1)(a), exclude or restrict access by virtue of section 2(1) to any land on one or more days specified in the notice.

(2)The number of days on which any entitled person excludes or restricts under this section access by virtue of section 2(1) to any land must not in any calendar year exceed the relevant maximum.

(3)In this section "entitled person", in relation to any land, means?

(a)the owner of the land, and

(b)any other person having an interest in the land and falling within a prescribed description.

(4)Subject to subsection (5), in this section "the relevant maximum" means twenty-eight.

(5)If regulations are made under subsection (3)(b), the regulations must provide that, in cases where there are two or more entitled persons having different interests in the land, the relevant maximum in relation to each of them is to be determined in accordance with the regulations, but so that the number of days on which access by virtue of section 2(1) to any land may be excluded or restricted under this section in any calendar year does not exceed twenty-eight.

(6)An entitled person may not under this section exclude or restrict access by virtue of section 2(1) to any land on?

(a)Christmas Day or Good Friday, or

(b)any day which is a bank holiday under the M1Banking and Financial Dealings Act 1971 in England and Wales.

(7)An entitled person may not under this section exclude or restrict access by virtue of section 2(1) to any land?

(a)on more than four days in any calendar year which are either Saturday or Sunday,

(b)on any Saturday in the period beginning with 1st June and ending with 11th August in any year,

(c)on any Sunday in the period beginning with 1st June and ending with 30th September in any year.


(8)Regulations may provide that any exclusion or restriction under subsection (1) of access by virtue of section 2(1) to any land must relate to an area of land the boundaries of which are determined in accordance with the regulations.

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Offline Alex

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Re: Premature action on CRoW?
« Reply #56 on: November 06, 2015, 10:33:04 am »
Is it me or have we not already been over this a million times already?
Anything I say is represents my own opinion and not that of a any club/organisation that I am a member of (unless its good of course)

Offline ah147

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Re: Premature action on CRoW?
« Reply #57 on: November 06, 2015, 10:36:32 am »
Other problem with your analogy is the fact that it was an estate/housing association rule that contradicted with a national law.

Here, cavers are using their own rules to act against their own vote!

That said, I can see your point.


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Offline Simon Wilson

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Re: Premature action on CRoW?
« Reply #58 on: November 06, 2015, 11:05:19 am »
Is it me or have we not already been over this a million times already?

Shussh, don't spoil the fun.   :bounce:

Offline Clive G

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Re: Premature action on CRoW?
« Reply #59 on: November 06, 2015, 01:11:42 pm »
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:

Sorry to be a wet blanket but I think day light is a bit of a red hearing.  One of the key phrases is 'open-air' (with or without a hyphen) qualifying recreation.  I have a distinct impression that the interpretation by DEFRA hinges on the claim that a cave does not have 'open air'.

Perhaps there's the answer here in the definition of 'open air'?

If a building has no doors and windows then it is in free communication with the open air. However, as soon as you place doors and windows in position (given the building has an effective roof) then the building has its own air trapped inside and is no longer 'free to the open air'.

Likewise with a cave. If a cave has an unobstructed entrance then the air inside the cave exchanges freely with the air outside the cave and the cave is 'free to the open air'. Many caves in South Wales draught inwards during the colder winter months and outwards during the summer. However, I do recall the entrance to Tatham Wife Hole in the White Scar area of Ingleborough in the Yorkshire Dales draughting out with very welcome warm air, like a volcano, one very cold winter, when there was deep snow cover on the ground. By counter to this, when a cave has a gate across its entrance then the air is, to one degree or another, trapped inside the cave, and the cave is closed to the open air.

Offline Ian Adams

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Re: Premature action on CRoW?
« Reply #60 on: November 06, 2015, 01:37:04 pm »
Clive,

Interesting definition of "open air" you have identified.

Am I right in thinking from your rather excellent definition, that "open air" in a cave extends from the entrance to a point where it can longer pass (such as a sump?)

 :)

Ian
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Offline Simon Wilson

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Re: Premature action on CRoW?
« Reply #61 on: November 06, 2015, 02:01:21 pm »
Clive,

Interesting definition of "open air" you have identified.

Am I right in thinking from your rather excellent definition, that "open air" in a cave extends from the entrance to a point where it can longer pass (such as a sump?)

 :)

Ian

No problem Ian, we can sort that.

Ireby Sump with open-air.

Offline ttxela

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Re: Premature action on CRoW?
« Reply #62 on: November 06, 2015, 02:09:15 pm »
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:

Sorry to be a wet blanket but I think day light is a bit of a red hearing.  One of the key phrases is 'open-air' (with or without a hyphen) qualifying recreation.  I have a distinct impression that the interpretation by DEFRA hinges on the claim that a cave does not have 'open air'.

Ok then, simply ensure that the light you have trapped in the jar is held in the medium of air. Then, if challenged simply take off the lid, then you will have open air.
If you've been affected by any of the issues raised in this post you can contact our helpline on 0800........

Offline Clive G

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Re: Premature action on CRoW?
« Reply #63 on: November 06, 2015, 02:25:34 pm »
Clive,

Interesting definition of "open air" you have identified.

Am I right in thinking from your rather excellent definition, that "open air" in a cave extends from the entrance to a point where it can longer pass (such as a sump?)

 :)

Ian

Taking the example of Agen Allwedd Lower Main Stream Passage downstream Sump 1, the free flow of air appears to be sealed off at the sump, but if you go up into Gothic Passage and Resurrection Passage, you can dry cave all the way to the balcony which overlooks the stream passage beyond downstream Sump 3.

Yet, even though a sump pool might appear closed to the open air (inside the cave), during times of spate, following heavy rain or a snow melt, the King's Road in Daren Cilau, which leads to St David's Streamway (closed by Terminal Sump at the World's End at the downstream end and St David's Sump at its upstream end), draughts strongly as a result of the air that has been drawn through the sumps by turbulent water. This effect is similarly experienced during times of spate in the Hard Rock Extensions.

This free circulation of air within the cave is clearly separate from the situation at the entrance which a caver may wish to use to enter the cave. One entrance could be closed to the open air, through having the likes of a gate in place, whereas other entrances (usually on land under different ownership) could exist elsewhere that are free to the open air - whereby to enjoy the right of 'open access' the alternative entrances would have to be found and used in preference to the entrance(s) closed to the open air.

If a gate was encountered some distance into an open-access cave, then the right of 'open access' would end at the gate.

So the issue that needs resolving is how and when cave gates can legally be installed, by whom, and what liabilities (if any) thereby ensue - depending on the cave access/management policy put in place to manage and conserve the cave.

Offline Simon Wilson

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Re: Premature action on CRoW?
« Reply #64 on: November 06, 2015, 02:38:08 pm »
Clive,

Interesting definition of "open air" you have identified.

Am I right in thinking from your rather excellent definition, that "open air" in a cave extends from the entrance to a point where it can longer pass (such as a sump?)

 :)

Ian

.. Terminal Sump at the World's End ...

This free circulation of air within the cave is clearly separate from the situation at the entrance which a caver may wish to use to ... preference to the entrance(s) closed to the open air.

If a gate was encountered some distance into an open-access cave, then the right of 'open access' would end at the gate.

So the issue that needs resolving is how and when cave gates can legally be installed, .... [simples]

Welcome to the party Clive. You're really getting into the spirit and I'm glad you remembered fancy dress.

Offline Ian Adams

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Re: Premature action on CRoW?
« Reply #65 on: November 06, 2015, 03:06:18 pm »
Clive,

Just to be clear on your point;

You are saying that unless the air is blocked (such as by a gate as you give as an example), the cave is "open to the air" ?

 :)

Ian
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Offline Bob Mehew

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Re: Premature action on CRoW?
« Reply #66 on: November 06, 2015, 04:09:35 pm »
I think cremations, see http://www.bailii.org/ew/cases/EWHC/Admin/2009/978.html plus http://www.bailii.org/ew/cases/EWCA/Civ/2010/59.html and smoking, see http://www.legislation.gov.uk/uksi/2006/3368/contents/made might be of interest to this 'open' debate. 

As an aside how do the oxygen levels stay normal in a cave?  I can understanding CO2 being scrubbed out by water but can't see dissolution of oxygen from water being a sufficient driving force.  That makes me feel drafts must be involved.  (And apologies to Chris - the draft detector work is still (just) on my list of to dos.)  Perhaps a new thread?

edited to include third link

Offline Clive G

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Re: Premature action on CRoW?
« Reply #67 on: November 06, 2015, 06:30:36 pm »
Clive,

Just to be clear on your point;

You are saying that unless the air is blocked (such as by a gate as you give as an example), the cave is "open to the air" ?

 :)

Ian

The analogy I am appealing to is that of a house without doors or windows, whereby "it is in free communication with the open air. However, as soon as you place doors and windows in position (given the building has an effective roof) then the building has its own air trapped inside and is no longer 'free to the open air'."

Likewise with a cave, by which I mean a cave negotiable by a person, so long as there is no gate in place, "the air inside the cave exchanges freely with the air outside the cave and the cave is 'free to the open air'."

The degree of obstruction to the open air by a cave gate is irrelevant under this line of argument, because a cave gate prevents the passage of people and any air escaping around the side of the gate is no different than air entering through cracks around (or beneath) a door or through an open window in a house.

Offline Pegasus

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Re: Premature action on CRoW?
« Reply #68 on: November 06, 2015, 06:45:16 pm »
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:

Sorry to be a wet blanket but I think day light is a bit of a red hearing.  One of the key phrases is 'open-air' (with or without a hyphen) qualifying recreation.  I have a distinct impression that the interpretation by DEFRA hinges on the claim that a cave does not have 'open air'.

Ok then, simply ensure that the light you have trapped in the jar is held in the medium of air. Then, if challenged simply take off the lid, then you will have open air.

Excellent  :clap2: ;D

Offline Clive G

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Re: Premature action on CRoW?
« Reply #69 on: November 06, 2015, 06:50:08 pm »
I think cremations, see http://www.bailii.org/ew/cases/EWHC/Admin/2009/978.html plus http://www.bailii.org/ew/cases/EWCA/Civ/2010/59.html and smoking, see http://www.legislation.gov.uk/uksi/2006/3368/contents/made might be of interest to this 'open' debate. 

As an aside how do the oxygen levels stay normal in a cave?  I can understanding CO2 being scrubbed out by water but can't see dissolution of oxygen from water being a sufficient driving force.  That makes me feel drafts must be involved.  (And apologies to Chris - the draft detector work is still (just) on my list of to dos.)  Perhaps a new thread?

edited to include third link

This is what I've noted on the subject of surface hunting for new caves, using cave draughts, in the Daren Cilau section of the Llangattock book:

Quote
[Surface] draughts [in the vicinity of limestone outcrops] being driven by a combination of factors: certainly differences in atmospheric pressure and temperature between the surface (or 'outside world') and hidden chasms, connected with an extensive cave network within the rock, but also by the release of air drawn through flooded conduits by subterranean water flow - especially during times of spate.


Offline Ian Adams

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Re: Premature action on CRoW?
« Reply #70 on: November 06, 2015, 07:04:48 pm »
Clive,

I appreciate your various analogies .... however, for the sake of clarity;

You are saying that unless the air is blocked (such as by a gate as you give as an example), the cave is "open to the air" ?

 :)

Ian
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Offline Clive G

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Re: Premature action on CRoW?
« Reply #71 on: November 06, 2015, 07:45:34 pm »
The main question here is who is entitled to place a gate on or inside a cave?

I think the answer has to be the landowner (or their agents, heirs or assigns), but subject to any relevant legislation in place, including that concerning not obstructing caves where these are known to be visited by bats and used as bat roosts, etc.

I don't know what depth is normally associated with the ownership of freehold or leasehold land, but for most cave entrance series at a relatively shallow depth beneath the surface, the cave is likely to be owned or leased by the surface land owner.

Mineral rights legislation would only apply, I suspect, if the cave had been used as a mine at some time, and, provided it is a natural cave, solely in limestone rock, only then if any extraction was to take place from inside the cave. However, with man-made mineral mine workings, then it's likely the landowner couldn't even enter the workings without complying with certain set legislation, let alone start to make any material change within the mine workings themselves.

For the larger cave systems, which, once you get a significant distance into these systems, can be several hundred feet underground, it is likely that because of the depth of the cave beneath the surface, the surface landowner will not have sufficient title in their land ownership to exert any control over what happens at such a great depth.

In addition, should a landowner decide to gratuitously gate some or all the caves on their land, and not allow access, then I would hope it would be possible for people to be able to appeal to have the gates removed on the basis of prescriptive rights having been obtained through prior unhindered and uncontested access over a set number of years.

Of course, as soon as a landowner might start charging for entry through the cave gate then a whole new world of legal liabilities would open up for the landowner.

Ultimately, within reason and the law, provided the site is a natural cave, he who owns the entrance(s) . . . sets the rule (as per clause 4.6).

Offline Ian Adams

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Re: Premature action on CRoW?
« Reply #72 on: November 06, 2015, 08:35:23 pm »
Clive,

You are obviously very adept at being able to understand big pictures and I do appreciate your further analogies and paradigms.

However, we do need to press forward one step at a time and to do that, please could you confirm (yes or no will do) that;

You are saying that unless the air is blocked (such as by a gate as you give as an example), the cave is "open to the air" ?

 :)

Ian
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Offline Bob Mehew

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Re: Premature action on CRoW?
« Reply #73 on: November 06, 2015, 08:40:06 pm »
The main question here is who is entitled to place a gate on or inside a cave?
Apologies to Clive but I think he is substantially wrong. 

I consider the person who is entitled to place the gate is the owner of that part of the land where the gate is to be located.  If on the surface, then it is the surface land owner.  If underground, then it is the mineral rights owner if that has been separated from the surface land owner rights. 

There is an interesting situation brought out by Roy's reference to the Countess of Lonsdale v Tesco where both have conflicting rights.   

The surface land owner can exert his rights all the way down, as reaffirmed by the Supreme Court in 2011.  (An oil company was forced to pay compensation to the surface land owner for letting their pipe run under his land at several thousand of feet down.)     

And in my view a place in the 'open air' requires more than a tenuous link to the 'out of doors countryside'.

Offline Peter Burgess

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Re: Premature action on CRoW?
« Reply #74 on: November 06, 2015, 08:40:45 pm »
Yeah, Clive, keep it simple - some members struggle with long sentences!