A big day for CRoW
- Thread starter Badlad
- Start date
Just don't forget that not all CRoW land is open moorland miles from anywhere where no-one is going to worry about you tramping across the land (as long as it's not a shooting estate). If you look at the Mendip Hills and the White Peak of Derbyshire, both areas with extensive cave systems, the CRoW access land is in separate patches, sometimes even single large fields, mixed in with ordinary farmland.
CRoW access land has to be "unimproved land", so a field of rough grazing which has never been mowed or ploughed may well qualify. The reason for the odd patchwork of sometimes single fields in some areas is that, if the land was ploughed up during WWII in an attempt to grow crops, it cannot be classed as "unimproved" and is therefore not CRoW land. So you have a mixture of farmland and fields, some of which is CRoW land and some not, so you will be right under the noses of farmers - many of whom don't take kindly to trespassers. That's why it is important to clarify the law and to deal sensitvely with farmers and landowners in areas like this.
CRoW access land has to be "unimproved land", so a field of rough grazing which has never been mowed or ploughed may well qualify. The reason for the odd patchwork of sometimes single fields in some areas is that, if the land was ploughed up during WWII in an attempt to grow crops, it cannot be classed as "unimproved" and is therefore not CRoW land. So you have a mixture of farmland and fields, some of which is CRoW land and some not, so you will be right under the noses of farmers - many of whom don't take kindly to trespassers. That's why it is important to clarify the law and to deal sensitvely with farmers and landowners in areas like this.
Stuart France
Active member
Forget all this light-penetrating-into-the-cave-entrance stuff. That sort of nonsense from Defra might get discussed in court later on - if there is a ?later on?.
This week?s court case was only a preliminary permission hearing. All that we were asking for in court on Tuesday was the go-ahead to take our main case, i.e. the CROW caving matter, to a full court hearing. Permission to do that was refused and I feel BCA should appeal. The Court of Appeal is a paper process these days and relatively cheap to use - in legal terms.
It seems to me that the way the government goes about defending JR cases is to argue that no decision was ever made, or that the decision they made was not actually a decision, or if there was a clear decision then the government didn?t make it! The aim is to wreck the claimant's case at the ?seeking permission? stage. Thus the government never has to face the claimant?s real question later on - which in our instance is ?does CROW etc apply to caving?.
In the 2016 JR case, started by myself and Nig Rogers, about CROW of course, NRW?s defence was to argue that a bat licence application submitted to them by some landowner could be ?withdrawn? by NRW. Normal people would think that only an applicant can withdraw their own application. But lawyers think this is an opportunity for endless legal argument for which they are paid. The bat licence was in reality refused by NRW (which is therefore a justiciable decision of theirs) but NRW dressed it up to make it appear that no decision was made by saying NRW ?withdrew? the applicant?s application and this was done without the applicant?s knowledge. Obviously the public body which has the duty to determine a licence application can?t withdraw it (i.e. they can only grant or refuse it) but that doesn?t stop their lawyers arguing that they can withdraw it so as to pretend that a grant/refuse decision was not made.
I?m sure you all can see the game. Nig and I dropped our case as it was obvious we would be privately funding more of a court case about the meaning of the word ?withdraw? and who is entitled to ?withdraw? a licence application than the real case about CROW caving.
This time around the government is saying their advisory committee took the decision to exclude caving from the government?s access reform programme in Wales (which is intended only to broaden the public access) on the ground that caving is said by them to be outside the ambit of CROW. This is equivalent to saying that SAGE decides on the government?s response to Covid and that SAGE at one and the same time may and may not discuss viruses.
I have to say Tuesday?s court hearing shattered my trust in British Justice. I had expected every judge to keep an open mind until both sides had finished speaking and only then to reach a conclusion. There are judges who ?reserve? their judgement for a couple of weeks while they think about what they heard and then publish a settled view. But, as per the BCA statement which is linked above in this forum thread, that was not the case with our judge.
He was visibly taken aback not to find the government and NRW lawyers present in court but he quickly recovered and filled that void by asking the caving side all kinds of questions and making all kinds of suggestions that the absent defence team would otherwise have made themselves had they been present. I cannot recall that he balanced this rather combative approach by putting himself into the defence corner and asking himself some awkward questions on our behalf having apparently become proxy defence team. Anyway, it did not seem particularly even-handed to me.
In the end, as the BCA statement states, the judge turned his head away from the camera that was directly facing him and he looked continuously into some unseen screen while reading out his judgement without any hesitation, repetition or deviation. Quite a steady matter-of-fact feel to this compared to his previous impromptu style. I am struggling even now to understand how such a statement could not have been prepared almost entirely in advance.
NRW did not attend. Defra sent a representative who said nothing. The government as Defendant had stated in advance that they would not bother attending court as they thought it a waste of their time or public money. However, less obvious explanations for choosing to be absent from court have also crossed my mind.
This week?s court case was only a preliminary permission hearing. All that we were asking for in court on Tuesday was the go-ahead to take our main case, i.e. the CROW caving matter, to a full court hearing. Permission to do that was refused and I feel BCA should appeal. The Court of Appeal is a paper process these days and relatively cheap to use - in legal terms.
It seems to me that the way the government goes about defending JR cases is to argue that no decision was ever made, or that the decision they made was not actually a decision, or if there was a clear decision then the government didn?t make it! The aim is to wreck the claimant's case at the ?seeking permission? stage. Thus the government never has to face the claimant?s real question later on - which in our instance is ?does CROW etc apply to caving?.
In the 2016 JR case, started by myself and Nig Rogers, about CROW of course, NRW?s defence was to argue that a bat licence application submitted to them by some landowner could be ?withdrawn? by NRW. Normal people would think that only an applicant can withdraw their own application. But lawyers think this is an opportunity for endless legal argument for which they are paid. The bat licence was in reality refused by NRW (which is therefore a justiciable decision of theirs) but NRW dressed it up to make it appear that no decision was made by saying NRW ?withdrew? the applicant?s application and this was done without the applicant?s knowledge. Obviously the public body which has the duty to determine a licence application can?t withdraw it (i.e. they can only grant or refuse it) but that doesn?t stop their lawyers arguing that they can withdraw it so as to pretend that a grant/refuse decision was not made.
I?m sure you all can see the game. Nig and I dropped our case as it was obvious we would be privately funding more of a court case about the meaning of the word ?withdraw? and who is entitled to ?withdraw? a licence application than the real case about CROW caving.
This time around the government is saying their advisory committee took the decision to exclude caving from the government?s access reform programme in Wales (which is intended only to broaden the public access) on the ground that caving is said by them to be outside the ambit of CROW. This is equivalent to saying that SAGE decides on the government?s response to Covid and that SAGE at one and the same time may and may not discuss viruses.
I have to say Tuesday?s court hearing shattered my trust in British Justice. I had expected every judge to keep an open mind until both sides had finished speaking and only then to reach a conclusion. There are judges who ?reserve? their judgement for a couple of weeks while they think about what they heard and then publish a settled view. But, as per the BCA statement which is linked above in this forum thread, that was not the case with our judge.
He was visibly taken aback not to find the government and NRW lawyers present in court but he quickly recovered and filled that void by asking the caving side all kinds of questions and making all kinds of suggestions that the absent defence team would otherwise have made themselves had they been present. I cannot recall that he balanced this rather combative approach by putting himself into the defence corner and asking himself some awkward questions on our behalf having apparently become proxy defence team. Anyway, it did not seem particularly even-handed to me.
In the end, as the BCA statement states, the judge turned his head away from the camera that was directly facing him and he looked continuously into some unseen screen while reading out his judgement without any hesitation, repetition or deviation. Quite a steady matter-of-fact feel to this compared to his previous impromptu style. I am struggling even now to understand how such a statement could not have been prepared almost entirely in advance.
NRW did not attend. Defra sent a representative who said nothing. The government as Defendant had stated in advance that they would not bother attending court as they thought it a waste of their time or public money. However, less obvious explanations for choosing to be absent from court have also crossed my mind.
I suppose you have to be Welsh to know quite how petty things can get. Many flee. Would it not be better to go to the mother lode and and get someone to add the word ?caving? to something? They did so only recently when it came to defining being outside. Can?t imagine anyone in London gives a toss either way.
I suspect that 90% of the value for CRoW has already been extracted, even for caving. Landowners have thrown in the towel on excluding people from upland areas, and are getting scared that things like commercial shooting are on the skids. Everyone needs friends.
The real issue is that CRoW doesn?t give you the right to do anything but transit with no damage. Digging holes in the ground isn?t covered, and nor (technically) are things like bolting. You still need permission and the fabled insurance. Or you decide to try and own key bits (which introduces the interesting scenario of also owning the liability).
I suspect that 90% of the value for CRoW has already been extracted, even for caving. Landowners have thrown in the towel on excluding people from upland areas, and are getting scared that things like commercial shooting are on the skids. Everyone needs friends.
The real issue is that CRoW doesn?t give you the right to do anything but transit with no damage. Digging holes in the ground isn?t covered, and nor (technically) are things like bolting. You still need permission and the fabled insurance. Or you decide to try and own key bits (which introduces the interesting scenario of also owning the liability).
Stuart France
Active member
Possibly so, but to my entirely untrained mind this also sounds like "we know we will win so lets not bother" attending.
How many JR cases are there where the Defendant (WG) and the First Interested Party (NRW) don't turn up in court? Is this unique?
Another curiousity of the CROW case is how Second Interested Party (Defra) became involved. Apparently the court itself invited Defra to join. In which case, is using the discretion of court officials to boost the fire power of one side in a particular case normal judicial practice in this country?
Dave Tyson
Member
I think it's pretty poor that the judge decided that this action should fall at the first hurdle even though the defending parties didn't show up. That strikes me as biased without good reason and one wonders if words were exchanged before the action - especially if a prepared statement was involved. Certainly to good grounds to appeal.
Of course the BCA could just declare that caving is permitted by CRoW, document it and spread the word and let everyone carry on caving - either Defra/NRW will turn a blind eye (expected) or they will have to challenge...
Dave
Of course the BCA could just declare that caving is permitted by CRoW, document it and spread the word and let everyone carry on caving - either Defra/NRW will turn a blind eye (expected) or they will have to challenge...
Dave
Stuart France
Active member
How very generous of you to suggest that court officials are familiar with Defra's panoply of policies, especially in the arcane area of caving. Defra's arrival in the case was not a follow up to any previous court decision - Defra were invited in by the court officials long before any court decision was made.
Since when have Courts been drumming up Claimants, Defendants and Interested Parties? I know folks are on hard times now, but I don't think Courts are a 'business' in the strict sense of being an enterprise with monthly sales targets, watching their cash flow and creditor balances, etc. Inviting in Defra was not a commercial move. The motive for this was something else.
Not long back I noticed that someone at governmentlegal.gov.uk had got themselves into the email trail for this case which certainly caught my eye. If you google it, you'll see this is the Treasury Solicitor and the Attorney General and all that. That's how high this CROW case has reached. They don't have any website that matches their domain name, but further info about them is here:
https://www.gov.uk/government/organisations/government-legal-department/about
Some seriously high up and well connected feathers have been ruffled!
I have just come across the following quote re. caving in advice from a goernment department with regard to caving and Covid-19:
Quoted from a letter sent from the Dept of Digital, Culture, Media & Sport 1/6/2020:
??With regard to caving, as mentioned in the department's letter of 29 May, all outdoor sports and physical activities are now permitted, ....
So, the Dept. of Digital, Culture, Media & Sport is on record as considering caving to be an outdoor sport.
Make of this what you will. Joined up thinking doesn't seem to apply here but maybe this should have been referred to as part of the case in Wales - which branch of government do we believe?
Quoted from a letter sent from the Dept of Digital, Culture, Media & Sport 1/6/2020:
??With regard to caving, as mentioned in the department's letter of 29 May, all outdoor sports and physical activities are now permitted, ....
So, the Dept. of Digital, Culture, Media & Sport is on record as considering caving to be an outdoor sport.
Make of this what you will. Joined up thinking doesn't seem to apply here but maybe this should have been referred to as part of the case in Wales - which branch of government do we believe?
I expect DEFRA asked to be invited then, they can't just turn up without judge agreeing it. You are right that courts don't drum up participants, unless they express an interest.
Stuart, you have linked 2 comments that were not related - latter was to Dave's reply about it being the first hurdle, as it had already been refused in court previously.
I suspect it's also standard practice for governmentlegal to be copied in to any court cases their departments are involved in, that question legislation.
Jenny - makes no difference to argument, as other outdoor sports are specifically excluded from CRoW e.g. kayaking & mountain biking. It's the use of "open air" that concerns this discussion.
Stuart, you have linked 2 comments that were not related - latter was to Dave's reply about it being the first hurdle, as it had already been refused in court previously.
I suspect it's also standard practice for governmentlegal to be copied in to any court cases their departments are involved in, that question legislation.
Jenny - makes no difference to argument, as other outdoor sports are specifically excluded from CRoW e.g. kayaking & mountain biking. It's the use of "open air" that concerns this discussion.
I am not convinced this is the right war. There is a widespread campaign ongoing that public subsidy should maximise public goods, and access is top of the list. The post-Brexit settlement will the biggest change for decades. It can put the onus on subsidy-seekers to demonstrate what the public gets for it?s money. And most farmers round here are totally dependant on subsidy. And others who are not would like it thank you very much.
There has been much talk from the likes of Gove in recent years that this will happen, and I think this year could focus the public mind. Holding them to it will require widespread alliances. Caving is little, it needs to attach itself to some bigger dogs with more voters. Politicians like votes, preferably in bulk.
There has been much talk from the likes of Gove in recent years that this will happen, and I think this year could focus the public mind. Holding them to it will require widespread alliances. Caving is little, it needs to attach itself to some bigger dogs with more voters. Politicians like votes, preferably in bulk.
There are very large farms, not a million miles away from discussions on here, who can?t be getting less than half their gross income from subsidy through the Basic Payment Scheme. And that is ending soon.
The current subsidy regime is planned to be phased out over the next 7 years and replaced with a public goods approach focussed on environment. This is where all the big-boy decisions are going to be made, and it?s where the billions a year will be spent. Including things like restoring bogs. This is the pressure point for public access for decades to come. Includes interesting phrases like paying for ?Rights of way, navigation and recreation infrastructure?. Get your tax dollars spent on what you want it spent on.
https://consult.defra.gov.uk/elm/elmpolicyconsultation/supporting_documents/ELM%20Policy%20Discussion%20Document%20230620.pdf
The current subsidy regime is planned to be phased out over the next 7 years and replaced with a public goods approach focussed on environment. This is where all the big-boy decisions are going to be made, and it?s where the billions a year will be spent. Including things like restoring bogs. This is the pressure point for public access for decades to come. Includes interesting phrases like paying for ?Rights of way, navigation and recreation infrastructure?. Get your tax dollars spent on what you want it spent on.
https://consult.defra.gov.uk/elm/elmpolicyconsultation/supporting_documents/ELM%20Policy%20Discussion%20Document%20230620.pdf
