Author Topic: Drws Cefn- the next instalment?  (Read 10266 times)

Offline Brains

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Drws Cefn- the next instalment?
« on: February 19, 2016, 05:47:23 pm »
http://darknessbelow.co.uk/?p=1256

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

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

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

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

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

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

My personal position is pro access, but here I am trying just to report this development. Others have suggested a petition, but to what end I am not clear

Offline Brains

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Re: Drws Cefn- the next instalment?
« Reply #1 on: February 19, 2016, 06:07:39 pm »
[aside]
Following input from FB I have just had a quick look on the members list and it seems "Graham" and "Bottlebank" are no longer listed, but "Peter Burgess" still is.
I hope that Peter at least feels he can reply within this debate. Although I have disagreed with Graham in the past that doesnt mean I want him silenced - he has valuble input in many areas. Likewise Brocklebank - I hope this isnt directly linked to the "Darkness Below" website formation as a news resource [/aside]

Offline Peter Burgess

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Re: Drws Cefn- the next instalment?
« Reply #2 on: February 19, 2016, 06:26:37 pm »
What do you want me to say? It's a news item, not a debate. News is important. There's my opinion.

Offline Brains

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Re: Drws Cefn- the next instalment?
« Reply #3 on: February 19, 2016, 06:36:01 pm »
What do you want me to say? It's a news item, not a debate. News is important. There's my opinion.
In the past any mention of this location has lead to pages of debate, as has the prospect of recourse to the law. Debate can be healthy and the picking apart of motives and reasoning can be enlightning. As you say tho, a matter of news, of import to some

Offline Peter Burgess

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Re: Drws Cefn- the next instalment?
« Reply #4 on: February 19, 2016, 06:39:02 pm »
Let's see if there is any appetite for further debate rather than try to prompt it then.

Offline ChrisJC

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Re: Drws Cefn- the next instalment?
« Reply #5 on: February 19, 2016, 07:06:44 pm »
No need for further debate. It can only be resolved by the courts.

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Offline Wayland Smith

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Re: Drws Cefn- the next instalment?
« Reply #6 on: February 19, 2016, 07:53:27 pm »
No need for further debate. It can only be resolved by the courts. Chris.

But what can only be resolved in court?

Access to Draenan?
Access to Drws Cefn?
Right to underground access on CROW land?

Offline Damo

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Re: Drws Cefn- the next instalment?
« Reply #7 on: February 20, 2016, 01:41:11 am »
Well if this is to start yet another debate, i wish you all the very best with it!

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

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

Fingers crossed that today will be the day that I finally succeed as I am a huge fan of the seesaw! Although, if this is not amongst the delights of the said playground; the swings will suffice!  :spank: 8) :bounce:

Offline cavermark

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Re: Drws Cefn- the next instalment?
« Reply #8 on: February 20, 2016, 09:11:33 am »
No need for further debate. It can only be resolved by the courts.

Chris.

Should the wider implications of this action on the caving community not be discussed? eg. public image of caving, caver/landowner relations in this specific case and in general, impact on the campaign for changes in CROW as applied to cavers, etc.
If it's deemed to be a "bad thing" for caving in general, is there anything that can be done about it at this stage?

Offline Wayland Smith

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Re: Drws Cefn- the next instalment?
« Reply #9 on: February 20, 2016, 09:46:02 am »
Should the wider implications of this action on the caving community not be discussed? eg. public image of caving, caver/landowner relations in this specific case and in general, impact on the campaign for changes in CROW as applied to cavers, etc.
If it's deemed to be a "bad thing" for caving in general, is there anything that can be done about it at this stage?

I suppose that you could apply to a court for a restraining order, preventing Stewart from going to court to apply for a judicial review.  :-\

Online David Rose

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Re: Drws Cefn- the next instalment?
« Reply #10 on: February 20, 2016, 11:21:32 am »
Drws Cefn, like most of the Draenen system, is on CROW land. If CROW applies to caving, then any attempt to block access to it would be unlawful. It seems that Nig and Stuart are prepared to test this in court. If so, considerations about the "image" of caving are utterly irrelevant. If they do go ahead with a court case, all they will be doing is seeking to clarify the law. How can that not be welcomed?

No doubt they and their lawyers will consider NRW's response to their pre-action protocol letter carefully. But if this then leads to a court case, then it seems to me that cavers who agree that CROW should apply to caving should support them wholeheartedly, and wish them success.

Offline royfellows

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Re: Drws Cefn- the next instalment?
« Reply #11 on: February 20, 2016, 11:34:35 am »
David said: "all they will be doing is seeking to clarify the law"

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

This is where I have been coming from all along.
Glad NAMHO 2019 over.

Offline cavermark

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Re: Drws Cefn- the next instalment?
« Reply #12 on: February 20, 2016, 11:57:23 am »
Even if the law is clarified that CROW covers caving, it's not anticipated that it will cover digging.  Will there be a question about Drws Cfn having been dug out with landowner permission? 
Thus if the landowner is "forced" to open it by the legal action, he (and others) still won't be obliged to give permission for new digging activities on their land....
I'm keen on CROW being applied to caving, but cautious that if it's done heavy handedly it could have detrimental side effects...

Online David Rose

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Re: Drws Cefn- the next instalment?
« Reply #13 on: February 20, 2016, 12:15:31 pm »
As I understand it, the digging was not on the surface but underground, in order to connect Drws to the main Draenen system. Digging already takes place underground in many caves without the permission of the landowner who happens to own the entrance, on both CROW and non-CROW land.

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

Offline bograt

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Re: Drws Cefn- the next instalment?
« Reply #14 on: February 20, 2016, 01:18:18 pm »
Oh, FFS, dredging up the silt again--!!, if they want to fork out their cash on this, so be it, I only hope that the relevant BCA officers are 'kept in the loop'.
 Although if NRW follow through with their plan to adopt the 'Scottish model' for open access, the outcome will be academic.
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Offline cavermark

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Re: Drws Cefn- the next instalment?
« Reply #15 on: February 20, 2016, 01:47:25 pm »
As I understand it, the digging was not on the surface but underground, in order to connect Drws to the main Draenen system. Digging already takes place underground in many caves without the permission of the landowner who happens to own the entrance, on both CROW and non-CROW land.

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

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

I'm sure some journalist could put a different spin on it, which wasn't favourable to cavers  ;) and what if the judicial review didn't go our way?

Offline Wayland Smith

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Re: Drws Cefn- the next instalment?
« Reply #16 on: February 20, 2016, 02:47:10 pm »
and what if the judicial review didn't go our way?

 :-\ Then you find a bigger, more important, senior judge to overturn the first ruling.
Then the law lords.
Possibly the European court of justice (if we are still playing with them.)
Or get parliament to change the law.

Offline Andy Farrant

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Re: Drws Cefn- the next instalment?
« Reply #17 on: February 20, 2016, 04:07:50 pm »
For the sake of repeating myself, Drws Cefn was dug open when the land was owned by the Coal Authority, back in the late 1990's. It was much later that it was connected to Ogof Draenen. This important distinction was not clear in the recent Descent article.

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

Offline droid

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Re: Drws Cefn- the next instalment?
« Reply #18 on: February 20, 2016, 04:22:42 pm »
This whole sorry saga appears to me to be far more about individual egos than the best interests of cavers.

The whole CRoW debate stinks of this: people establishing a 'position' and being utterly incapable of seeing any other solution.
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Offline NewStuff

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Re: Drws Cefn- the next instalment?
« Reply #19 on: February 20, 2016, 04:45:03 pm »
For the sake of repeating myself, Drws Cefn was dug open when the land was owned by the Coal Authority, back in the late 1990's. It was much later that it was connected to Ogof Draenen. This important distinction was not clear in the recent Descent article.

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

Given the shenanigans going on here, do you really think a clarification that goes against access will not be "enforced" here? If you don't, I have a bridge you should look at buying...
Permission? Wassat den?

Offline Wayland Smith

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Re: Drws Cefn- the next instalment?
« Reply #20 on: February 20, 2016, 04:55:03 pm »
But parts of Draenan pass under land owned by other people.
Also land not controlled by P.D.C.M.G.
So another new entrance is quite possible (and I believe being looked for.)
Even if the current land owner removes access permission other things are quite possible.

Offline Clive G

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Re: Drws Cefn- the next instalment?
« Reply #21 on: February 21, 2016, 04:00:54 am »
For the sake of repeating myself, Drws Cefn was dug open when the land was owned by the Coal Authority, back in the late 1990's. It was much later that it was connected to Ogof Draenen. This important distinction was not clear in the recent Descent article.

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

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

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

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

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

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

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

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

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

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

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

Respecting the fact that some caves need to be managed (and Ogof Draenen has been managed for a good many years with notable success), not only for keeping out those that would harm themselves or the cave, but for the proper management and servicing of technical fixed aids inside the cave and the coordination of scientific studies within the system, apart from taking decisions to help conserve the cave system for future generations of cavers, is not incompatible with seeking to have the CRoW Act clarified such that automatic access to non-managed, open-access caves - naturally existing or dug open with the landowner's permission (current or retrospective) - is guaranteed.  :)

Offline Madness

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Re: Drws Cefn- the next instalment?
« Reply #22 on: February 21, 2016, 08:46:05 am »
My personal opinion is that any 'test case' relating to the clarification of CRoW should not involve a cave system that was dug and entered without the landowners permission. I think the issue with this particular cave should be put on the back burner until Tim Allen and the BCA have had a chance to do their stuff.

Offline cavermark

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Re: Drws Cefn- the next instalment?
« Reply #23 on: February 21, 2016, 08:59:54 am »
My personal opinion is that any 'test case' relating to the clarification of CRoW should not involve a cave system that was dug and entered without the landowners permission. I think the issue with this particular cave should be put on the back burner until Tim Allen and the BCA have had a chance to do their stuff.

Makes sense to me too.

Online David Rose

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Re: Drws Cefn- the next instalment?
« Reply #24 on: February 21, 2016, 09:45:20 am »
The issue of whether permission was granted for digging in the 1990s is not relevant to the CROW point. The cave is there, it is open, and it is on CROW access land. The small number of trips into Drws that have been taking place aren't causing harm.

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

Meanwhile, I am told, there are proposals to prevent access to Drws Cefn, supported by some cavers. In my view (and some of them are my friends) their position is very wrong. Sometimes one cannot be selective about where one has to stand and fight. The choice in such circumstances is to struggle or capitulate. It is beginning to seem that this litigation may simply be unavoidable. If so, I for one will support it both in terms of the general principle and in relation to this particular cave.