Author Topic: Mine access and the BCA constitution.  (Read 5179 times)

Offline royfellows

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Mine access and the BCA constitution.
« on: April 12, 2016, 01:09:01 pm »
Society is forever changing as new discoveries are made and new technology emerges. And so the law also changes to reflect the above and changes in our societies attitudes and values.
I think its right to say that the nature of caving has changed over the years as mine exploration comes more and more into the equation, I think that there are more people visiting abandoned mines now that ever before.

BCA Constitution says "4.6. That the owners and tenants of property containing caves have the right to grant or withhold access." This has been touched upon before.
Further: 2.2. In this Constitution, the expression “cave” shall take the meaning as covering cave, pothole, mine or any other underground cavity and related terms shall be similarly construed.
Obviously, in joining an association one agrees to abide by its constitution.

Now the legal position is that a mine belongs to the mineral owner who is not necessarily the land owner. Usually the landowner and the mineral owner will be the same entity, but this is not always the case. The existing wording of the constitution as it is may be invalid from a legal point of view, in that it may attempt to confer rights on people who may not actually have them. This matter arose at the CCC AGM last year.

Now I am not trying to weaken the rights of landowners, the law does this all on its own without any help from me. Or am I trying to start arguments on here, but just offer a platform for discussion, and hear the opinions of others. To this end I am offering a hypothetical situation, but one which could become very real. It is something which needs to be looked at.

SITUATION
You are organising a special trip into Upper Dinas Silica Mines and for insurance or other reasons you need to gain written legal permission to enter the mine with your party. To this end you approach the landowner NRW, who advise you that they are unable to give permission because it’s not their mine, it belongs to Natural Amenities Ltd, the mineral owner, and suggest that you approach me as managing director.

QUESTION
Do you cancel the trip as the landowner is unable to give permission (in line with the BCA constitution which by joining you agreed to abide by) or go ahead and direct your application to me?
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Offline Madness

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Re: Mine access and the BCA constitution.
« Reply #1 on: April 12, 2016, 01:19:04 pm »
I'm not a BCA member, but even if I was, if I REALLY wanted to do the trip I'd contact you as the mine owner. I've got more important things to worry about than whether is contravines a constitution by a technicality.

Perhaps the term 'landowner' needs to be replaced by cave/mine owner in constitutions?

Offline RobinGriffiths

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Re: Mine access and the BCA constitution.
« Reply #2 on: April 12, 2016, 01:38:13 pm »
That's the problem with modelling the real world. Constitutional points may have been put in place for a reason thought valid at the time, but over time, they may not reflect the world as it is. You then have to decide whether to follow the letter or take a more pragmatic common sense approach.

Offline nickwilliams

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Re: Mine access and the BCA constitution.
« Reply #3 on: April 12, 2016, 01:53:28 pm »
If you were to consider the mineral rights owner as a 'tenant' then would the constitutional problem go away?

I know they are not a tenant in the strict sense of the law, but for the purposes of interpreting the BCA constitution this would seem to be a sensible approach.
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Offline royfellows

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Re: Mine access and the BCA constitution.
« Reply #4 on: April 12, 2016, 02:07:14 pm »

I know they are not a tenant in the strict sense of the law,

Hello Nick, sorry no, not in any sense at all. Its 'mineral owner' per se, the 'rights' are ancillary to the ownership.
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Offline bograt

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Re: Mine access and the BCA constitution.
« Reply #5 on: April 12, 2016, 02:23:39 pm »
This is a classic example of a constitution being 'fit for purpose' at the time it was written, but as Roy indicates, society, systems and laws change to keep abreast of changing times. This illustrates the need for continuous review and revision of constitutions.

I suspect the line Nick has suggested could have some standing, the mineral owner could be construed as a 'tenant' of the mine entrance having right of access to his mine? (access to the entrance being the right of the landowner), this right of access could be conferred on third parties?
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Offline Clive G

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Re: Mine access and the BCA constitution.
« Reply #6 on: April 12, 2016, 02:25:25 pm »
Although the BCA constitution may be phrased to include mines, I should have thought that people primarily interested in exploring old mine workings would take advice from organisations such as NAMHO: http://www.namho.org/

Quote
Active mine explorers will also find guidance on managing archaeological finds underground as well as how to lead groups of novices and experienced explorers.

It is the person who occupies land, be they a freeholder or leaseholder, who can grant permission for you to cross the land and/or permit passage across the land for designated purposes, according to the law of the land. Unless the freeholder has subjected a leaseholder of his land to a relevant covenant then he cannot grant permission for third parties to cross the land over and above the leaseholder's wishes, without payment of some kind of compensation.

If having obtained permission to cross land, or having crossed open public land (where no fences or notices have been erected to keep the public out), for reaching the entrance to an old mine working, which is open to the air, you decide to go down the mine then that would be on your own responsibility. Should the owner of the mine working not have closed off the mine working, or any temporary closure has become ineffective with time and erosion, thereby enabling entry to be made, especially if no notices to the contrary are posted, then I doubt whether the owner of the mineral rights would have grounds to complain about people entering the mine.

However, people have to realise that certain types of mines can potentially be extremely hazardous and more so than natural caves. So, here is the sense in carrying out such explorations via a group or association which has specialist mining knowledge and expertise, such as NAMHO and its affiliated bodies.

Offline royfellows

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Re: Mine access and the BCA constitution.
« Reply #7 on: April 12, 2016, 02:57:43 pm »
Putting aside the issue of mineral, sporting, or grazing ownership which includes the right of surface entry, a conveyance of property can include restrictive covenants such as the right to lay pipelines and cables in favour of the vendor. Obviously, people such as contractors for instance can work on behalf of one of the parties.

This right was retained by the Crown when CMT acquired Cwmystwyth.
Similarly, shafts and adits were fenced by the Crown in the Cwmystwyth mineral rights area prior to the sale to CMT. Here land ownership was in the hands of a local farmer and he was slightly annoyed by them not even telling him what they were going to do.

The rights connected with mineral ownership are as correctly stated subject to compensation to be paid to the landowner, but these are based on loss to the landowner so normally would exclude say the ordinary right of entry.

The conveyance ' catch all' description is "all mines and minerals" which as confirmed by test case includes the right to 'drive levels, sink shafts, lay roads, dump spoil, and erect buildings, and do all manner of things conductive to the extraction of the minerals, but subject to fair compensation being payable to the landowner. This being an implied right of mineral ownership.

Thing to remember is that there is a complete freedom of contract in land conveyance.

The legal situation is extremely complicated and rights may vary according to deed, also manorial mineral rights being slightly different again.
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Offline royfellows

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Re: Mine access and the BCA constitution.
« Reply #8 on: April 12, 2016, 03:09:26 pm »
For anybody who is really interested in all this, "there is a book" as Tony Oldham would say
History and Practice of the Law of Mines and Minerals. The only thing is that some of it is now out of date in light of recent test cases such as Bocardo V Star Energy
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Offline nickwilliams

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Re: Mine access and the BCA constitution.
« Reply #9 on: April 12, 2016, 03:17:10 pm »
Speaking as someone who:

- Lives on Hucklow Edge (one of the oldest continuously mined locations in the country, if not the world);
- Owns property nearby which includes an abandoned lead mine;
- Is a Juror of the Great Barmote Court;
- Is a land holding trustee of a charity which owns land, including mineral rights, which is actively being mined by one of the last hard rock mines in the country;
- Is Chairman of the Parish Council and is co-ordinating a project to make safe the many abandoned shafts on the Edge;

I have a very good understanding of the complexity of mineral rights (and the realities of enforcing them).

However, it's still not clear to me exactly what the problem is, or whether its a serious enough problem to warrant a change in the BCA Constitution. Surely, the mineral owner is just another 'owner' within the meaning of "owners and tenants of property"?

Roy, this is the first time I have heard that this was discussed at the CCC AGM. If this is a serious problem to you, I think it unlikely that we will resolve it via this forum but I'll be happy to meet with you to discuss the problem and what BCA can do to help. You have my e-mail address if you'd like to contact me.
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Offline bograt

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Re: Mine access and the BCA constitution.
« Reply #10 on: April 12, 2016, 03:24:36 pm »
Is this a regional issue?, I understand different regions have their own particular rules, here in the Peak District we have the Barmote courts, in Cornwall they have the Stanneries, etc..
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Offline royfellows

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Re: Mine access and the BCA constitution.
« Reply #11 on: April 12, 2016, 03:41:10 pm »

However, it's still not clear to me exactly what the problem is, or whether its a serious enough problem to warrant a change in the BCA Constitution. Surely, the mineral owner is just another 'owner' within the meaning of "owners and tenants of property"?

That is an interesting point, which is why I open the thread, to hear views such as this. A very good point to which I will appropriately draw attention of some people.
I am sure that I have seen this misquoted somewhere.


Roy, this is the first time I have heard that this was discussed at the CCC AGM. If this is a serious problem to you, I think it unlikely that we will resolve it via this forum but I'll be happy to meet with you to discuss the problem and what BCA can do to help. You have my e-mail address if you'd like to contact me.

CCC, its in the minutes and there to read.

Serious problem to me, certainly not. I was just interested in hearing peoples views. Although Internet names prevail I am aware that several members of the BCA committee are on this website and I would think that the opinions being expressed would be of interest.
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Offline Wayland Smith

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Re: Mine access and the BCA constitution.
« Reply #12 on: April 12, 2016, 03:45:34 pm »
Without getting into the question of Mineral rights and land ownership.
The current legislation for mines is "The Mines Regulations 2014"
http://www.hse.gov.uk/pubns/books/l149.htm

This is national legislation and can not be over-ridden by local rules however long established.

Offline nickwilliams

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Re: Mine access and the BCA constitution.
« Reply #13 on: April 12, 2016, 03:55:36 pm »
The Mines Regulations 2014 have no effect on mineral rights. The only part which might be relevant in the context of this thread is that they define the 'mine owner' as the person who has the right to work the mine. This may or may not be the mineral owner, and may or may not be the person who actually works the mine. This lack of clarity is itself a reflection of the complexity of mineral rights in law.

Note also that in this context a 'person' can be a company or an individual.
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Online AR

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Re: Mine access and the BCA constitution.
« Reply #14 on: April 12, 2016, 03:58:48 pm »
The Peak District laws have been brought into statute (1851 High Peak mining & mineral courts act, 1852 Derbyshire mining & mineral courts act) but the clauses governing access definitely do not apply to caving trips. I believe the Forest of Dean laws have also been brought into statute but since they only apply to those born within the Hundred of St. Briavels who've worked in a mine for a year and a day I think it's safe to say those are also irrelevant...
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Offline bograt

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Re: Mine access and the BCA constitution.
« Reply #15 on: April 12, 2016, 04:04:01 pm »
Am I right in thinking the mineral owner in the majority of the High Peak is the Crown? hence the requirement of the mine owner to pay a tithe to them or their representative?
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Offline nickwilliams

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Re: Mine access and the BCA constitution.
« Reply #16 on: April 12, 2016, 04:07:49 pm »
Bograt,

No, it's a lot more complex than that. Different minerals have different owners, and Chatsworth has a major stake (but isn't the only one).

Sorry, no more time to go into it now.
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Offline bograt

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Re: Mine access and the BCA constitution.
« Reply #17 on: April 12, 2016, 04:09:32 pm »
Sorry Nick, thinking mainly of lead.
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Offline royfellows

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Re: Mine access and the BCA constitution.
« Reply #18 on: April 12, 2016, 04:12:28 pm »
........ lack of clarity is itself a reflection of the complexity of mineral rights in law.

Nail on the head. I like it
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Online AR

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Re: Mine access and the BCA constitution.
« Reply #19 on: April 12, 2016, 10:42:53 pm »
Sorry Nick, thinking mainly of lead.

The Duchy of Lancaster have the largest part of the High Peak lead rights, but Chatsworth also have a major stake (Ashford north and southside, Hartington and the Granges, part ownership of Youlgreave and Birchover), then Haddon  (Hazlebadge, Alport and Bakewell), while Litton is Lord Scarsdale's and Stanton is with the Davie-Thornhills. Eyam, Stoney Middleton, Grindlow, Calver, Hassop, Rowland, Youlgreave and Bradford are in fragmented private ownership. Spar rights are even more fragmented, sometimes with the freehold owner, sometimes the estates have reserved them.
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Offline D.Snaith

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Re: Mine access and the BCA constitution.
« Reply #20 on: April 13, 2016, 08:00:44 am »
 I have always been told that as long as you have landowner consent to enter a mine, you are free to do so. It is only if you plan to remove material from the mine that the owner of the mineral rights becomes involved.
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Offline todcaver

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Re: Mine access and the BCA constitution.
« Reply #21 on: April 13, 2016, 10:29:43 am »
I could understand these mine owners if people were going in to  mine there minerals  :shrug:
Which obviously isn't the case , so the only 2 issues left are not walking across land or just a resentment of exploration or fun  ?¿

Offline royfellows

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Re: Mine access and the BCA constitution.
« Reply #22 on: April 13, 2016, 11:36:46 am »
I could understand these mine owners if people were going in to  mine there minerals  :shrug:
Which obviously isn't the case , so the only 2 issues left are not walking across land or just a resentment of exploration or fun  ?¿

Some people do go in to mine their minerals!
There is also the fear of legal liability.
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Offline todcaver

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Re: Mine access and the BCA constitution.
« Reply #23 on: April 13, 2016, 01:03:03 pm »
Surely if people are currently mining minerals illegally they would need processing plants , trucks , and all sorts of really obvious mining equipment , pick axes e,c,t

Offline Wayland Smith

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Re: Mine access and the BCA constitution.
« Reply #24 on: April 13, 2016, 01:18:18 pm »
Surely if people are currently mining minerals illegally they would need processing plants , trucks , and all sorts of really obvious mining equipment , pick axes e,c,t
Mineral collectors are only taking relatively small amounts, not tons.
They can however do a lot of damage to get those specimens.