Access, CRoW and the BCA

[Bob Mehew]

What is wrong with the advice given by Natural England and DEFRA and quoted by me above?

Because as I said, I think it is wrong for the reason I summarised

All I did was to point out that the legal definition of land included not only the surface but also what was below it;

and that NE said surface caving was included.  For a more extended reason, see p22 onwards at http://british-caving.org.uk/wiki3/lib/exe/fetch.php?media=about:documents:general_meetings:agm_reports_2014.pdf.  So I await the barrister's advice.  If she says yes then I think BCA should be leading the way to see what NE and NRW think. 

I hope you don't disagree with that last point?

 

[Peter Burgess]

Thank you to everyone who is giving their time and effort in taking a balanced and measured approach to moving this forward. Please allow those taking genuine positive action to get on with it. The last thing they need is other people throwing brickbats at them.

 

[Jon]

Very remiss of me to only mention Bob! Thanks to Badlad and his secret gang,  Jenny Pots and the CROW team and anyone else I've missed for all your work on this issue.

 

[Ian Adams]

Very remiss of me to only mention Bob! Thanks to Badlad and his secret gang,  Jenny Pots and the CROW team and anyone else I've missed for all your work on this issue.

Very good point, I regret I also omitted to offer great thanks to Badlad for actually doing something positive.

Top man 

Ian

 

[Ian Adams]

.....  I am happy to accept that opinion which ever way it falls, are you?

Perhaps we should all ask ourselves that exact question 

Ian

 

[Bottlebank]

.....  I am happy to accept that opinion which ever way it falls, are you?

Perhaps we should all ask ourselves that exact question 

Ian

It seems people are placing a lot of faith in a legal opinion. The reality is it may not matter whether we accept that opinion or not.

Perhaps we should all bear in mind a legal opinion is just that, landowners or others may also seek an opinion and may get a very different one.

I think bodies such as the CNCC would do well to think very long and hard about whether they should use such an opinion as a basis for future negotiations. To do so could seriously jeopardise future access if eventually a court case found against CRoW in caving.

Using such an opinion to look for a clarification or change in the law seems a good idea, using it as a negotiating tool is perhaps not such a good idea.

When it comes to negotiation I'd much rather see genuine reform of the CNCC, which is where this thread started.

 

[Bob Mehew]

Using such an opinion to look for a clarification or change in the law seems a good idea, using it as a negotiating tool is perhaps not such a good idea.

When it comes to negotiation I'd much rather see genuine reform of the CNCC, which is where this thread started.

I believe CNCC has indicated it will follow BCA's advice on what the act means.  Forgive me for pointing out that that the original motion stated:

• b) Completes its work on identifying potentially affected cave and mines in England and also Wales;
  c) Undertakes negotiations on behalf of BCA with other bodies interested in CRoW;
  d) Negotiates with Natural England and Natural Resources Wales on behalf of BCA to obtain acceptance of the legal advice;
  e) Produces advice to regions on acceptable forms of access agreements based on the legal advice and information from Natural England and Natural Resources Wales;
  f) Make recommendations on aspects of conservation to the Conservation and Access Committee;
  g) Produces advice to regions for use in briefing land owners on developments; and
  h) Produces advice to regions on any appropriate supplementary topics.

My thinking was that if we had a positive barrister's opinion then we could go to NE and NRW and see what they had to say, having checked we were not going to cross the likes of BMC and Ramblers.  If NE and NRW changed their view, then not just CNCC could move forward on considering where it should go re access agreements.  If NE and NRW are not persuaded, then yes further thought will need to be given to see what is the most appropriate next step.  For example, rather than seeking to change the law, a caver could bring a civil case against an access controlling body which has a locked gated cave.

I should add that I have no doubt that Matt is hard at work on other changes such as updating CNCC's constitution. 

My reason for restarting this thread was to ensure my apology to Simon had context.  :-[  Perhaps a mod could switch today's exchanges to a new thread and change the title?

 

[graham]

Legal opinions vary depending on the question being asked. An awful lot of people on this thread are asking the wrong question.

It matters not whether caving is or is not an 'open air' activity. That is the wrong question.

The right question is to ask whether caves, except in the narrow cases already described, count as mapped access land and therefore fall under the provisions of CRoW. My understanding is that they do not.

That is the question that should have been asked. Was it?

Thank you to everyone who is giving their time and effort in taking a balanced and measured approach to moving this forward. Please allow those taking genuine positive action to get on with it. The last thing they need is other people throwing brickbats at them.

Peter, if they are, in my opinion, wrong, should I not point this out?

Or are we only allowed to speak if we agree?

And on that note, I need to go and do something else. Enjoy your discussion.

 

[Bob Mehew]

It matters not whether caving is or is not an 'open air' activity. That is the wrong question.

The right question is to ask whether caves, except in the narrow cases already described, count as mapped access land and therefore fall under the provisions of CRoW. My understanding is that they do not.

That is the question that should have been asked. Was it?

I would disagree on your first point; caving being an open air recreation is in my mind one of several detailed points which needs confirming.  The content of my appendix to the CRoW Working Group was contained in full in the submission to the barrister.  The first paragraph of the submission said:

"This work started as an analysis of which caves were on access land as defined by the Countryside and Rights of Way Act of 2000 and is documented in several editions of Descent (Ref 1).  Arising from this work comes the principle question of whether the right of access as provided for in the Countryside and Rights of Way Act applies to caving." 

I will admit we did not have the benefit of a solicitor to advise us on how to make a proper submission but I am confident we have put all of the relevant material and detailed questions and points before her.  She did understand that we were not solicitors and seemed happy to accept our non professional efforts.

 

[Badlad]

Could I also request that a moderator move today's posts to the general uk caving forum.  Perhaps changing the title to 'Access, CRoW and the BCA'.  I understand completely why Bob began his post under this title but it is clear that it does not now fit the topic being discussed under 'Yorkshire'.  I would have posted my additions on a new thread but wanted to keep the context of what had gone before.

 

[Rhys]

Could I also request that a moderator .....

The best way to get a moderator to do something is to click on the "Report to moderator link". There's no guarantee any of us will spot a comment mid-way through a thread - we don't necessarily read every word posted here! I'll see what I can do though.

Rhys

 

[graham]

I would disagree on your first point ...

Well I'll go to the foot of our stairs.

Did you also ask what the implications for current access agreements would be if it were to apply? Did you ask whether sites being scheduled as SSSI's or, indeed under any other conservation legislation, might be treated differently to those that were not? Do you ask whether such arrangements might be open to challenge? And if so, who by?

Did you ask how the legal constraints on commercial groups - which are not covered by CRoW - might be handled in the event of other constraints being removed?

Did you ask how we might go forward in protecting our more delicate and scientifically important sites if co-operation with Natural England was lessened in any way?

 

[TheBitterEnd]

An awful lot of people on this thread are asking the wrong question.

Perhaps that question should be

'should a small group with one particular cave they want to "protect" be allowed to dictate national policy for all UK Cavers?'

 

[graham]

.

Your post - now removed* - did not apply to me as the caves that concern me the most are not on access land anyway. 

But I could ask whether national policy should be dictated by a few bods who've fallen out with their regional body?

Have a nice day.  :kiss2:

*Apologies, it's come back, albeit somewhere else.

 

[Les W]

I will perhaps controversially point out that Les W is also the CSCC C&A Officer, so I trust he reflects the likely opinion of CSCC. 

Just to clarify this point, although C&A is my position on CSCC Committee it is not a voting or representative post at the BCA AGM. CSCC has a representative on BCA Council and at the AGM and they will have voted as they saw fit, taking on board their understanding of CSCC's position (assuming they have had time to formulate an opinion at CSCC on this).

I did not represent CSCC's likely opinion as it has yet to be fully debated by CSCC (and as stated above, I was not there to represent CSCC)

For the avoidance of any doubt, I was representing myself at the AGM as an individual member of BCA within the house of individuals, and as the representative of the Wessex Cave Club within the house of groups, as per the BCA Constitution.

I will let the Wessex Committee decide if my vote was in line with their wishes.

 

[Les W]

Thanks for that clarification  Bob.

In summary, what is probably the single most important issue in British caving today has been kicked into the long grass ....

Nice 

OK, for what it is worth:
I don't believe this has been kicked into the long grass at all. What has happened, IMO, is that people outside of BCA have, on their own merits, pursued a legal opinion. This is going to happen and does not need BCA's input or any attempt at control. BCA however, along with the regional Council's will need to pick up the pieces from any fallout following on from this legal opinion.
The motion was not presented according to constitutional time scales so was rightly deferred as there were a lot of representations from people that could not attend the meeting, against the motion being presented. One group riding roughshod over the constitution is no better than another group doing the same so it was a better solution to defer it. The proposal to refer it to an SGM to be heard within quite a short time scale was clearly not acceptable to those that attended the meeting especially to debate the point there.

The compromise motion that appeared acceptable to all parties present, was to pass the issue to the C&A committee to follow up once legal opinion was delivered. I do believe that the current C&A committee will move quickly on this and that they will represent all the regions and all other interested parties.

I really don't see what else BCA could do under the circumstances...

 

[Badlad]

Oh Graham, I do despair at your posts sometimes. 

The 'few bods' as you describe them, are not trying to change national policy because they have fallen out with their regional body.  Certainly amongst those 'few bods' there are people who have nothing to do with regional bodies, and come from across the spectrum and across the regions. 

From my own perspective I see two very different issues.  One is trying to change, for the better, a number of modernising issues within the CNCC.  Changes are being made, because some concerned cavers have sat up and done something about it; ref the positivity of the last meeting. 

Second is an attempt to clarify the law regarding access to caves under CRoW legislation.  I cannot think of a better use of my time than to try to draw a conclusion to a debate that has raged on this forum and amongst cavers for several years.  I guess that because I have been involved in both issues you have mistakenly drawn a connection between the two.  Those pushing the access under CRoW agenda are not doing it 'because they have fallen out with their regional body'.

Concerning the question you raised about 'mapped access land'.  The QC concerned is a top specialist in public and administrative law.  She expects to consult with a specialist in land law also.  I have confidence that they will give the required weight to all aspects of the debate. 

 

[Peter Burgess]

Peter, if they are, in my opinion, wrong, should I not point this out?

Or are we only allowed to speak if we agree?

And on that note, I need to go and do something else. Enjoy your discussion.

Actually, my thoughts were not directed specifically at you, but if think they were .....

It's ridiculous to interpret my statement as "contrary opinions should not be expressed"! There are those who present alternative views in a positive and well-presented manner, and there are those who are less well-mannered.

 

[graham]

Oh Graham, I do despair at your posts sometimes. 

Thank you.  : the point is that I do not represent the small group that your post inferred. I am one of a large number of cavers who is content with the status quo ante with regard to this situation. I do not doubt for an instant that there are conservation concious cavers who are very concerned about this matter, though.

The 'few bods' as you describe them, are not trying to change national policy because they have fallen out with their regional body.  Certainly amongst those 'few bods' there are people who have nothing to do with regional bodies, and come from across the spectrum and across the regions.

Yes, and? I am aware of opponents of this move who also fit that bill.

From my own perspective I see two very different issues.  One is trying to change, for the better, a number of modernising issues within the CNCC.  Changes are being made, because some concerned cavers have sat up and done something about it; ref the positivity of the last meeting.

The nub of the matter. To quote one email I received recently "Our Yorkshire cousins will have to find another way to settle their trivial political differences." I am not the only one who thinks this way, you see.

Second is an attempt to clarify the law regarding access to caves under CRoW legislation.  I cannot think of a better use of my time than to try to draw a conclusion to a debate that has raged on this forum and amongst cavers for several years.  I guess that because I have been involved in both issues you have mistakenly drawn a connection between the two.  Those pushing the access under CRoW agenda are not doing it 'because they have fallen out with their regional body'.

The law is clear, the advice from NE and DEFRA shows that it is clear. You might not like it, but that is not the point.

Concerning the question you raised about 'mapped access land'.  The QC concerned is a top specialist in public and administrative law.  She expects to consult with a specialist in land law also.  I have confidence that they will give the required weight to all aspects of the debate.

I hope they bloody do, 'cos on here the point has clearly been missed by a country mile.

 

[Ian Adams]

OK, for what it is worth:
I don't believe this has been kicked into the long grass at all. What has happened, IMO, is that people outside of BCA have, on their own merits, pursued a legal opinion?..

Because the BCA have refused to?  Because the anti-access element of the BCA hierarchy have squashed it? Or some other reason ?

This is going to happen and does not need BCA's input or any attempt at control.

How about some ?support? ?

BCA however, along with the regional Council's will need to pick up the pieces from any fallout following on from this legal opinion.

So, you see this as ?destructive??  Was it not inevitable that whilst the BCA sat around doing nothing shouting ?your can?t do this, you can?t do that?, that someone would pick up the proverbial torch (as Tim has done) and actually do something ?  How does ?clarifying the law? in anyway create ?fallout??

The motion was not presented according to constitutional time scales so was rightly deferred

Or could it be said it was supressed by a technicality?  Given the vast amount of work that had been put into this by Tim, Bob, Jenny et al and given the hugely important consequences, was it really ?right? to defer it ?

as there were a lot of representations from people that could not attend the meeting, against the motion being presented.

How many ?for? couldn?t attend?  Was that not considered?  Can you define ?a lot??  In any event, it seems a number of people were able to wrangle two votes each (another technicality?)

One group riding roughshod over the constitution is no better than another group doing the same

Very true. The ?pro-access? sector has been habitually run over rough-shod.

The compromise motion that appeared acceptable to all parties present was to pass the issue to the C&A committee to follow up once legal opinion was delivered

Didn?t it become ?fait a?compli??  Not everyone ?agreed?, rather, ?caved in? (pardon the pun).

I do believe that the current C&A committee will move quickly on this and that they will represent all the regions and all other interested parties.

I hope you are right. It seems an impossible task for them to please both sides of the Access issue, I hope I am pleasantly surprised.

I really don't see what else BCA could do under the circumstances...

Stop fighting cavers potential ability to use recreational (CRoW) land for our sport ?

Assist in clarifying the law regarding CRoW ?



Ian