A big day for CRoW

[Badlad]

The Department for Digital, Culture, Media & Sport recently classed caving as an outdoor sport (for Covid related stuff) - does this have any bearing? Or is the sticking point that it's not considered to be open air?

Yes in fact since the 1970's various government bodies have recognised caving as an outdoor activity.  However...

The phrase used is 'open air recreation' in the Act.  The legislation makes no attempt to define this phrase.  One dictionary definition suggests not enclosed spaces another outside, outdoors.  The minister at the times helpfully suggested that the act should include activities as widely as possible and exclude only those listed in the list of exclusions.  Anyway you can go around and around and there are valid arguments on both sides. 

Our argument is the right one of course 

 

[Fjell]

It's always a bit like objecting to development on the land next door. Vastly the best solution is to own the land. I am currently trying to do exactly that.

Similarly, getting the law written your way in the first place is best, and here we are....

Possibly owning the land is the best option in a few cases. BCA has plenty of cash it seems, and BMC have done it. Just think, if every BCA member chipped in a grand, that would be, what, ?6 million? How much do you love your sport?

But it does raise the interesting issue that no landowner in their right mind (or their lawyers mind) is going to sue a caver for trespass on CRoW land, even if they could (and they generally can't that easily).

 

[Badlad]

But it does raise the interesting issue that no landowner in their right mind (or their lawyers mind) is going to sue a caver for trespass on CRoW land, even if they could.

Exactly 

 

[Stuart France]

Although David Rose is the Claimant in this case and BCA is meeting his costs, I am the aggrieved party since ARAG refused me membership of its Working Groups on the grounds that ARAG believed caving is not ?open air access? (as they put it), and so CROW does not apply to caving in their view, and so removing any ambiguity in CROW concerning caving via the government's new access reform programme will not be considered - all because CROW does not apply to caving.  Illogical I know!

I met the Deputy Minister in April 2019 and she asked me to write to her about what caving wanted regarding the upcoming sorting out of caving access in Wales within the upcoming reform programme that followed the Welsh Government public consultation which she had just trumpeted.

I did write, and she replied that she would get her ?officials? to deal with this or words to that effect.  What actually happened is that an advisory committee called ARAG which was not (apparently) instructed by her "officials" dealt with it.  ARAG is chaired by WG?s Head of Landscape and Recreation called Simon Pickering.  WG and NRW provide the secretariat.  WG funds it directly or via NRW.  The judge today thought ARAG is not a part of WG and is purely advisory, has free rein, and is not publicly accountable.

It?s actually more complicated.  ARAG is split into two levels:  a upper level Steering Group that is non-advisory and is there to ?manage? the programme via 5 people and all of them central government or NRW or local government employees and all appointed by central government, and three lower level Expert Groups which are volunteers drawn from interest groups like ramblers, climbers, landowners, water companies, fishing, kayaking, hang-gliders etc, appointed by the Steering Group to advise on Policy Intents which were defined by (guess who) the Steering Group - and thus directly or indirectly by the government or by their own invention depending on whom you believe.  To join an Expert Group you have to agree in advance to support the Policy Intents.

If Steering Group and its Policy Intents are not a part of Welsh Government and ARAG itself is non-government then it means an ad hoc group is somehow now in charge of defining future legislation which is nonsense so the premise that ARAG is non-government is nonsense too.

This is not necessarily the end of the matter as we could take our present case (i.e. asking a third time for permission to proceed with the main CROW case) to the Court of Appeal for not a lot of extra cost to BCA.  The CA would then decide the matter of whether our CROW case is allowed to go ahead and thus to overturn today?s judgement.

Alternatively, for example, we can try to get NRW to affirm its statutory advice to the public under CROW S.20 and JR their affirmation that CROW does not apply to caving in their view.  But they will then argue their general public advice was prepared too long ago to be reviewable by a court now and we?ll be back in the same game of the government wanting to argue over something other than CROW:  in such a case it would be the effective date of the alleged incorrect NRW advice for judicial purposes.  The case would then revolve around the smoke-screen of whether a policy affirmation is a new decision or not, in other words if it is eligible for JR or not.

Alternatively we could follow today's judge's incredible suggestion, if I heard this correctly, to engineer an alleged trespass case and get the access rights matter decided by a court in that way.

Alternatively we can ask the High Court for a Declaration that CROW applies or does not apply to caving because BCA is now uncertain as to how to correctly advise its members on whether all caving south of Scotland is trespass unless consented by the landowner because today?s case has solved nothing at all of importance and it leaves everything, as it was before, in limbo land.

Preventing the big legal questions from being addressed by erecting a smoke-screen issue in front of the main issues seems to be normal practice for government defence of JR cases.

Defending a case so as to leave things in limbo is not a win for the Welsh Government nor NRW because they have ducked the substantive questions by obstructing them from being decided by a court.

 

[alastairgott]

Hmm it's a bit much to say that the mass trespass had nothing to do with caving/caves. I have spent a short period tonight briefly researching and have found that a person called Ernest A. Baker (https://en.wikipedia.org/wiki/Ernest_A._Baker ) wrote a book on the "Moors, Crags and Caves of the High Peak and Neighbourhood (1900)".

It seems very unlikely that such an influential and timely book was not owned or used by the people involved in the mass trespass.

In fact to go one point further, one of the dozen signatories of the letter which was sent to the government campaigning for the CROW act was in fact one Ernest A baker. As referenced in Forbidden land: The Struggle for Access to Mountain and Moorland. pg 173. (Tom Stephenson, ?Ann Holt, ?Mike Harding ? 1989)

https://books.google.co.uk/books?id=i89RAQAAIAAJ&lpg=PA173&ots=etytDMTiBL&dq=%22G.%20H.%20B.%20Ward%22%20%22caves%22%20-dale&pg=PA173#v=onepage&q=cave&f=false

 

[Stuart France]

To engineer a (civil) cave trespass case you need a cooperative stooge landowner who will sue a willing test case caver.  The aim of both sides is that the landowner loses the case.  Since he is conniving with the caver, it follows that the caver (or BCA) will have to foot the landowner?s inevitable costs when he loses the court case.  The landowner would have to demonstrate some meaningful loss or impact which would not in fact exist.

It is likely the court would discover the complainant and defendant were acting in unison and that the case was something of a sham.

So this is a very bad idea.

How about this one instead.  Someone applies to their county council to have some popular open cave turned into a Town/Village Green (TVG) on the grounds that people have used it for leisure without objection for 20+ years.  The cave is on CROW land.  The council has to decide if the cave is already open access or not, in other words whether TVG status is necessary in terms of providing public access to it.

Whatever the council decides, and it doesn't matter which way they go, they will end up in court on a JR concerning CROW access to caves.  If they say CROW applies, then you JR them arguing that it didn't, or vice versa, so the court has to make a decision on CROW.  A local council isn't Defra/WG/NRW and so isn't likely to mount much of a defence on a matter like turning a cave into a village green.

There's lots of way of going about this!

The question is whether there is a better use of BCA's money than legal cases - such as free issue power tools and dig materials and funding university caving club equipment.

 

[Jenny P]

I thought the action was over their decision not to consider caving because "it wasn't an outdoor sport", so doesn't change the status CRoW!

Part of the problem is that if you consult a dictionary the definition of "open air" is usually given as "out of doors".  Similarly, if you look up the definition of "outdoor", you find it is "open air".

In point of fact they are not synomymous since "out of doors" suggests outside a building with doors, whereas "open air" tends to suggest no built surroundings and only sky above you.  That's probably why so many centres etc. refer to "Outdoor Education" and happily take young people caving which is, of course, out of doors although not, strictly speaking, in the open air in that you can't see the sky.

So it all comes down to an issue of semantics and whether the CRoW legislation was correctly worded.  It's almost become a circular argument and we won't get any further until the next review of CRoW decides to widen the scope of the activities named as being allowed.  There was a proposed review in 2009 which quite specifically suggested that caving ought to be included under the legislation but the review didn't seem to go anywhere and, at that time, those supposedly speaking on behalf of BCA preferred that it didn't.  Now that we have the backing of the BCA membership in favour of CRoW applying to caves, we need to make sure that the next chance of a review is followed up properly and with determination.

 

[Badlad]

I understand that there are still some worthwhile avenues to explore with the legal team.  The case may have legs yet.

 

[Fulk]

I don?t see why it?s relevant that caving should be considered by pedants as ?outdoor? or ?open air?; surely the only thing that matters (as far as CROW is concerned) is simply getting to the cave. If there is free access, then fine, you do what you want when you get there; if not, then you have to work your way round it, perhaps with some sort of access arrangement.

 

[Jenny P]

I don?t see why it?s relevant that caving should be considered by pedants as ?outdoor? or ?open air?; surely the only thing that matters (as far as CROW is concerned) is simply getting to the cave. If there is free access, then fine, you do what you want when you get there; if not, then you have to work your way round it, perhaps with some sort of access arrangement.

The reason why it's important is that, according to Defra et al., CRoW only refers to "open air" activities and they claim this is synonymous with "outdoor".  I'm sure that's why they have come up with this daft claim that you can legally (i.e. CRoW approved) descend an open shaft or pothole as long as you don't go out of daylight at the bottom. (Or, alternatively go into a large cave entrance on the side of a mountain as long as you don't go into the further reaches where it's dark!) Don't forget that under CRoW you are welcome to walk up to a cave, as long as you don't try to enter it beyond the reach of daylight, at which point it become "non-CRoW-approved".  So access to the entrance to a cave isn't a problem, it's access INTO a cave itself which is not allowed.

It's plainly daft and immensely frustrating to be banned by virtue of such silliness!

 

[Martin Laverty]

I don?t see why it?s relevant that caving should be considered by pedants as ?outdoor? or ?open air?; surely the only thing that matters ... is simply getting to the cave. If there is free access, then fine, you do what you want when you get there; if not, then you have to work your way round it, perhaps with some sort of access arrangement.

I don't think I have ever seen the case of access to sea caves, which I assume is unhindered except by tides and storms, questioned. The Scottish legislation may well mean that the ingress under an owned land surface is indisputable to the lengthy sea caves there, but Wales has quite a few sea caves (some frequented by sea kayakers), and there are also caves in England in cliffs accessed from the shore - Arnside Cove Cave and  Beachy Head Cave come to mind... These may seem insignificant examples, but if we have to get into legal nitpicking, might this not be more materiel in the pro-access armoury?

 

[Fulk]

The reason why it's important is that, according to Defra et al., CRoW only refers to "open air" activities and they claim this is synonymous with "outdoor".  I'm sure that's why they have come up with this daft claim that you can legally (i.e. CRoW approved) descend an open shaft or pothole as long as you don't go out of daylight at the bottom. (Or, alternatively go into a large cave entrance on the side of a mountain as long as you don't go into the further reaches where it's dark!) Don't forget that under CRoW you are welcome to walk up to a cave, as long as you don't try to enter it beyond the reach of daylight, at which point it become "non-CRoW-approved".  So access to the entrance to a cave isn't a problem, it's access INTO a cave itself which is not allowed.

Does anybody think that in real life that is going to be an issue? Are we going to be followed across the moors by landowners, gamekeepers, farmer, bailiffs, coppers, judges, court representatives, do-gooders, busybodies, parliamentary officials or anybody else, who will be quite happy to watch us walk over CROW land to a cave without let or hindrance, and then pounce on us as soon as we are about to leave daylight?

 

[nearlywhite]

https://british-caving.org.uk/update-on-the-crow-judicial-review/

In case anyone wants the official press release!

 

[Ed]

Define extent of day light..... Surely that's as far as solar generated photons get to.....  :spank:

 

[mikem]

Day light is where you can see without artificial aid. Most of the coast is somewhat different in that private ownership only extends to the average high tide mark (or something along those lines).

Under current laws the landowner can only ask you to leave by the shortest possible route anyway - which is back onto the fell, where there is open access...

 

[tony from suffolk]

Define extent of day light..... Surely that's as far as solar generated photons get to.....  :spank:

So I guess you can't go down any caves at night. The more you drill down into this illogical stance on caves and CRoW, the more ridiculous it becomes.

 

[JoshW]

Define extent of day light..... Surely that's as far as solar generated photons get to.....  :spank:

Series of mirrors set up from the entrance of a cave onwards? or some of those bizarre light tunnel things you can get installed in your house for a small fortune

 

[Ed]

Define extent of day light..... Surely that's as far as solar generated photons get to.....  :spank:

So I guess you can't go down any caves at night. The more you drill down into this illogical stance on caves and CRoW, the more ridiculous it becomes.

Surely the wording prevents a walker  entering the likes of Attermire cave at night time....

 

[mikem]

But there is no after dark ban - your eyes can adjust to the lower light levels of stars or moon. All laws have a line drawn somewhere & many of them are fairly arbitrary.

 

[Ed]

But there is no after dark ban - your eyes can adjust to the lower light levels of stars or moon. All laws have a line drawn somewhere & many of them are fairly arbitrary.

doesn't mention after dark - DEFRA refer to DAYlight     

At night time / after sunset - there is no daylight so any cave is beyond the extent of daylight as it on the other side of the globe