A big day for CRoW

[AR]

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?

 

[mikem]

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).

 

[droid]

It's far more likely that caving never came up on the radar Mike...

 

[mikem]

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.

 

[Fjell]

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.

 

[Fjell]

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.

 

[Badlad]

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.?

 

[mikem]

Hobhouse 1947 report for the national parks committee?

 

[Jenny P]

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.

 

[Bob Mehew]

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.

 

[zzzzzzed]

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.

 

[Bob Mehew]

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.

 

[mikem]

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.

 

[nearlywhite]

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.