Access, CRoW and the BCA

[Bob Mehew]

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?

As I have indicated, we kept our question focused on what the phrase "...on any access land for the purposes of open-air recreation..." in Sec 2(1) means in law.  We did not have the time to move onto dealing in detail with the potential implications given we only were told she was available on 4 June and required our material to be delivered this week.  Nor did I feel the offer given to us would wish to extend to cover subsidiary matters of the type that that you mention. 

But I can positively comment for what it is worth and as you probably already are aware, commercial groups are caught by Para 1(t) of Schedule 2 which prohibits persons "engages in any activity which is organised or undertaken (whether by him or another) for any commercial purpose".  However, I will add that I presume you are aware of para 12 in https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/69558/pb13765-info-note-crwa-gen-restictions.pdf which I came across during the research we did.  ACI are aware of it.

I would hope that by entering into a sensible dialogue in a prompt manner we will maintain and enhance our cooperation with NE.  My concern has been all along that if BCA does not move in a prompt way, then cooperation might well be lost or reduced.

 

[Badlad]

Graham

I totally acknowledge that there are cavers who are happy with the status quo, but there are also those who would like to see the law clarified.

Totally agree that there are many cavers who are concerned about conservation, not many aren't.  That has also been subject of some keen debating on this forum.

I don't agree that the law is clear.  You never answered the two points made by the Defra lawyers about surveying and definition of the land.

Can you just clarify what point has been 'missed by a country mile', I'm not sure I fully understand your last sentence.

 

[martinm]

There are some very knowledgeable people on this forum (in BCA and other bodies) who are looking into all this. You mostly have access to all the caves you want to go down already, albeit in some areas with the pain of getting permits, etc. We would all like to see the law clarified, I'm sure, however. Bob and Graham have both made valuable posts about the CRoW act and Q&As from NE & Defra. Jenny et  al are doing research into it.

We are trying to get a legal opinion on the matter, don't complain about that, ffs.

A lot of you have valid concerns, but this is descending into YACT, just let them get on with their (voluntary) roles and stop turning everything into a slanging match. 

They are doing their best within the constraints of their constitutions, etc. Just let them get on with it!.  Bored of this now..... 

 

[NigR]

You mostly have access to all the caves you want to go down already.......

No we don't, (at least not officially) as anyone who caves in Wales on a regular basis (or has followed events on this forum over the previous five years) should be painfully aware.

 

[Peter Burgess]

There are many cavers who visit South Wales on a regular basis who are not agonising over lack of access to the many caves they are free to visit or make easy arrangements to visit, I am one of them, and many of my colleagues and those we meet are in the same camp. No doubt there are those who are "painfully aware" of lack of access, maybe in places I don't visit (North Wales perhaps), but to say "anyone who caves in Wales of a regular basis ..... is painfully aware of lack of access" is not true. This is straying a bit from the topic, so I will make no more of this - I simply wanted to point out that NigR does not speak for me, and probably not for many others that I know.

 

[Badlad]

.

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.

For fear of boring people even more I wanted to comment on what exactly is BCA 'national policy' on CRoW.  During research on this topic the BCA secretary confirmed the following;

BCA do not have a 'policy' on CRoW.  BCA have a 'position' on CRoW, and that is as described in the BCA handbook 2014 on page 10.

That concludes, "... For this reason BCA has concluded to date that the CRoW Act gives no right of access to the underground environment.  However, in response to some members feedback, BCA is currently reviewing the CRoW Act and its implications for access."

That is what is happening in line with the BCA position.

What has clouded the issue for many years is the personal statement of the BCA Legal officer.  This was published in Descent 214 and on the BCA web site as a 'BCA statement on CRoW'.  Many have thought this was BCA policy as it was dressed up as such.  It has been confirmed that this was never sanctioned by council and should never have been published in the way it was.  It has now been removed from the web site.

 

[caving_fox]

From the recent study of how many caves fall into CROW land is it possible to know:

a) How many landowners have caves on their land solely non- Crow (they can then be ignored as existing access agreements will be the only way forward)

b) How many landowners have caves on their land solely Crow - again not an issue, if the ruling is for Crow-caving then all their caves are accessible, if not then existing access agreements stand

c) How many landowners have caves on their land both Crow and non-Crow. These will be the tricky ones where the possibility of Crow access to some caves may potentially as above influence their feelings about access to their non-Crow caves.

Should c) turn out to be small or effecting only a few caves then I don't see what the fuss is about - but until we know c) a lot of this discussion is unnecessary speculation.


And thanks again to all those who are working hard at this and giving up their valuable caving time to do so. I thought the recent Decent article well worth the read (again)!

 

[graham]

caving-fox

I note you make no mention of how any of these categories might view digging permissions

 

[Bottlebank]

caving-fox

I note you make no mention of how any of these categories might view digging permissions

Especially after they've just been told they have no rights when it comes to who caves in their caves.

The thing that amazes me about this debate is that all the proponents of CRoW I've discussed this with are diggers, and yet completely dismiss - in fact won't even discuss the risk to future digging permissions.

 

[Jon]

Maybe it's because the opposing camp are all doom and gloom about the future of access. We're seeking a legal opinion to help clarify the law,  it doesn't mean that if it's in our favour then cavers will automatically ignore landowners.

 

[Bottlebank]

Maybe it's because the opposing camp are all doom and gloom about the future of access. We're seeking a legal opinion to help clarify the law,  it doesn't mean that if it's in our favour then cavers will automatically ignore landowners.

Some may be, I'm not. I think we have great access generally up in the Dales which could be improved if CNCC get their act together. Relations with landowners are generally good.

I'm simply concerned that the full consequences of CRoW are taken into account and that however we go forward we build on existing good relationships.

When the pro CRoW lobby refuse to discuss how any possible problems that could crop up could be dealt with I think it sends a warning signal, and it's up to the rest of us to try and make sure these are taken into account.

Underlying the pro arguments I've heard seems to be a zealous, almost feverish theme that we have "right" to use caves on land that farmers are simply "custodians" of, that landowners have no business telling us where and when we can cave. To me that is a political argument and not one based on what is best for caving.

 

[kdxn]

Going the legal route at a national level is the only way that CRoW will be resolved for cavers.

Natural England's reply to me about how they interpret the current law is only going to be changed by a submission to the relevant ministry who oversee NE.

I suspect that a key to this will be the definition of "open air" and the negative of that.
As someone who has been spending a lot of time in Gaping Gill, it feels very much open air to me, especially when shivering in the air stream of Henslers crawls.

One online definition of "open air" is 
"a free or unenclosed space outdoors"
"located or taking place out of doors."
My interpretation of which is that open air represents something outside of a man-made environment as defined by the word 'doors'.

One complication is when a door (gate) has been fitted to a cave entrance.
Does that then mean it is now an enclosed indoor space and not open-air ?

A good legal opinion on the current CRoW act and caving is required.

Irrespective of this, we need to work with landowners and act responsibly.

 

[graham]

When the pro CRoW lobby refuse to discuss how any possible problems that could crop up could be dealt with I think it sends a warning signal, and it's up to the rest of us to try and make sure these are taken into account.

Underlying the pro arguments I've heard seems to be a zealous, almost feverish theme that we have "right" to use caves on land that farmers are simply "custodians" of, that landowners have no business telling us where and when we can cave. To me that is a political argument and not one based on what is best for caving.

Not just best for 'caving' we must also think about what's best for caves.

 

[Ian Adams]

The thing that amazes me about this debate is that all the proponents of CRoW I've discussed this with are diggers

I'm not a digger and neither are any many of my colleagues who are also proponents of open access.

We're seeking a legal opinion to help clarify the law, it doesn't mean that if it's in our favour then cavers will automatically ignore landowners.

Absolutely bang on. I am not aware that anyone has said they will ?ignore? landowners. The proponents of ?keep it locked up? should stop the slurs.

I'm simply concerned that the full consequences of CRoW are taken into account and that however we go forward we build on existing good relationships.

We probably all share that sentiment. I do.

When the pro CRoW lobby refuse to discuss how any possible problems that could crop up could be dealt with I think it sends a warning signal, and it's up to the rest of us to try and make sure these are taken into account.

I think that is unfair. There is an almost habitual ?attack? on the pro-access camp with obstacle after obstacle thrown into the path. When issues are addressed even more obstacles are cast.

No one (that I am aware of) has indicated (or intends) to use CRoW to run roughshod over landowners.

Not just best for 'caving' we must also think about what's best for caves.

Yes, and clarifying the law on CRoW does not serve as an injustice to the ?caves?.


As a general observation, how much credit has been given to the tremendous amount of work done by Tim, Bob, Jenny & Co by the anti-access group ?

Furthermore, why does it seem that counter-arguments in favour of open-access are either ignored or side-stepped ?

Ian

 

[Bottlebank]

No one (that I am aware of) has indicated (or intends) to use CRoW to run roughshod over landowners.

Yes they have. We're obviously discussing this with different people. I've so far come across several who appear to be planning to do exactly that in some areas.

Incidentally I'm not part of any anti access group, I'm in favour of reforming CNCC, and of improving access arrangements. but not of using CRoW to tear up existing access agreements which seems is what is likely to happen.

 

[graham]

As a general observation, how much credit has been given to the tremendous amount of work done by Tim, Bob, Jenny & Co by the anti-access group ?

Given that all I've seen of this work to date is a report that I consider to be, for reasons stated in various places, to be seriously flawed, I'm not sure quite why I should be showering them with praise.

And who is this anti-access group anyway? Speaking personally, I've spent a considerable amount of the last 25 years negotiating and administering access arrangements to various cave sites.

As far as I am aware, the only folks who have closed caves are those who have, to quote "run roughshod over landowners."

 

[Ian Adams]

No one (that I am aware of) has indicated (or intends) to use CRoW to run roughshod over landowners.

Yes they have. We're obviously discussing this with different people

Name & Shame ?

Given that all I've seen of this work to date is a report that I consider to be, for reasons stated in various places, to be seriously flawed, I'm not sure quite why I should be showering them with praise.

I think that is very unfair Graham. They clearly put a great deal of work into the report. How about people (the BCA perhaps) assist and support their efforts and address any areas of concern ?  I didn?t ask for them to be showered in praise.

And who is this anti-access group anyway?

Sorry, I should have been clearer; I was referring to anti-open access (sorry it was confusing).

As far as I am aware, the only folks who have closed caves are those who have, to quote "run roughshod over landowners."

Are they on CRoW land  and were they claiming CRoW rights?  If not, it is hardly fair to attack the cavers who are looking at clarifying CRoW.


Ian

 

[Bottlebank]

Name & Shame ?

No - there's been enough trouble on here with people quoting from private emails etc. You'll have to take my word for it.

And I don't think they've anything to be ashamed off, I'm know they genuinely believe they are right. I just don't agree with them.

Let's face facts, if CRoW applies to caving then the existing access agreements for places like Leck and Casterton are redundant, unless cavers choose not to exercise their rights under CRoW. That's not going to happen, they will tear up the agreements.

 

[Jenny P]

Please be assured that, as the individual member of BCA who raised this point at the AGM last year and who was appointed Convenor of the CRoW Working Party in 2013, that I am content with the BCA AGM decision.  I have been confirmed as the Convenor of the CRoW Working Group, which will continue its work this year as part of the BCA Conservation & Access Group.

One of the issues I set out to determine originally, with the help of volunteers from all regions, was how many caves are on CRoW land, where are they, how many are also in SSSIs, SAMs or NNRs, and how many are covered by access agreements which require prior permission, keys, booking permits, etc. - anything other than simply "ask the farmer".  Once this information is available to us all, we can make sensible decisions about how we better conserve fragile or special sites.  Also in mind is how we can sensibly allow access for instructed groups (not the same as "commercial groups").

There are problems in more than one region - some cavers are satisfied with the status quo but others, and not just from CNCC, feel that there are sufficient problems arising for this whole matter to receive serious consideration.  NCA started work on this in 1998, with the approval of all regions involved in the then Conservation & Access Group and the AGM, but we took our eye off the ball in the intervening years.  Now BCA is taking up where NCA left off and seeking to question and clarify some of the anomalies which appear in the various legal opinions and comments we have been given in the past.

I am pleased that the CRoW Working Group will be working closely with the newly elected BCA Conservation & Access Officer and a revitalised Conservation & Access Committee which will represent all regions.  We have everything to gain from this co-operation.

 

[Ian Adams]

if CRoW applies to caving then the existing access agreements for places like Leck and Casterton are redundant, unless cavers choose not to exercise their rights under CRoW. That's not going to happen, they will tear up the agreements.

..... And landowners get the full protection of CRoW legislation (landowners indemnity) and the CNCC's role becomes less onerous.

Win/Win 

Ian


PS. Thank you for clarifying your position Jenny