Access, CRoW and the BCA

[Peter Burgess]

Can I ask please that when the Working Group and C&A Committee have finished deliberating on Right of Access, they keep the momentum going and switch to managing the Responsibility of Access, which is probably where cavers' efforts should be directed for the long term? And will those so keen to see enhanced Right of Access listen so intently to the deliberations of the Group/Committee if this were to happen?

 

[Bob Mehew]

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.

My desire from the outset  has been to get BCA ahead of the game to try and hold back what I call ' independent' cavers from riding rough shod over land owners.  See http://ukcaving.com/board/index.php?topic=16672.msg218318#msg218318 for example.  But what is frustrating me is the apparent refusal of some to accept that if BCA does not quickly take steps, then they will ride rough shod to the detriment of all cavers.  Even if I had not 'helped' the case along, others would have pursued it without even offering BCA a chance to do do something.

 

[Ian Adams]

Even if I had not 'helped' the case along, others would have pursued it without even offering BCA a chance to do do something.

I think the general feeling from open access proponents is that the BCA have obstructed CRoW progress and stood behind the David Judson Report.

If Tim had not done what he did and you/Jenny had not done what you had done where would we be?

Many people had mooted many suggestions/arguments beforehand and all had fallen on deaf ears or been shot down in flames.

Ian

 

[Badlad]

Establishing a legal right of access to those caves on 'access land' will hopefully secure that access into the long term future.  Access agreements with landowners are all well and good but they are vulnerable to changing circumstances.  Cavers have expressed their worries about changes of ownership on this very forum.  What if the successor to Dr Farrar at Gaping Gill decided he didn't like the arrangements cavers had previously enjoyed.  What if he took the position of the owners of Dale Barn and closed the caves for good.  Having a legal right of access should be seen as a good thing for our activity.

There is an unavoidable political element to this issue and it dates back hundreds of years and will continue into the future for sure.  Previously landowners had absolute rights over the countryside they owned, gradually in time those rights have swung the other way to allow members of the public access to open spaces and the countryside.  One starting point could be taken as the Inclosures Act of 1843 and follows through the Metropolitan Commons Act 1868-, Law of Property Act 1925, National Parks and Access to the Countryside Act 1949 to the Countryside and Rights of Way Act 2000.  On each occasion through nearly 200 years social campaigners have pushed for greater access and the landowning gentry have resisted.  The political divide can clearly be seen in the House of Commons second reading debate on the CRoW bill in March 2000.  Mr Colin Pickthall (MP for West Lancs) stated;

"By contrast, the attitude of some landowners?not all, thank God?and their spokesmen is often marked by extraordinary snobbery. The Country Landowners Association regional secretary for Leicestershire, Rutland, Northamptonshire and Warwickshire wrote: "We don't want all and sundry roaming our land, especially not criminals, drug pushers and vandals." I am sure the House can imagine a drug pusher on top of the trough of Bowland, waiting for the walkers in woolly hats to come up and buy his illegal goods.

    The CLA regional secretary for the east midlands wrote that the freedom to roam "would apply to everyone, including the minority of vandals, sheep stealers, badger baiters, horse slashers, illegal hare coursers, poaching gangs, birds eggs thieves and those responsible for a rising tide of crime in rural areas." Picture those people, staggering around the mountains looking for a horse to slash. The hon. Member for Tunbridge Wells (Mr. Norman) summed up walkers as trespassers and hooligans.

    One does not need to read many such comments to get a clear idea of what landowners think of the citizens of this country. They appear to hold the extraordinary belief that walkers are all from the towns. Writing in The Daily Telegraph, Quentin Letts refers to my right hon. Friend the Minister for the Environment as "Minister for Townie Ramblers", as though those of us who live in the countryside never put one foot in front of the other."

 

[Bottlebank]

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 

Ian,

I think lots of people are thinking win/win.

What happens when the landowner doesn't share that view, is he going to engage in a costly legal battle? Doubt it. Much more likely that when later asked for permission to dig on his land he smiles and says "No". Or when asked to allow commercial groups in he says "No".

Less work for the CNCC and access for everyone (except commercial groups) is only win/win if it is achieved in away that doesn't have repercussions.

I'd love to see an end result from the BCA that CRoW does cover caving but should only be used as a last resort when all other methods to gain access have failed, and that it should not be used where existing agreements are in place unless it's with the full agreement of the landowner.

Bob's right, the BCA need to resolve this quickly.

Tim,

Having a legal right of access should be seen as a good thing for our activity.

Of course having a legal right of access would be a good thing for caving used properly. Up to that point I agree with you but as I said earlier today:

To me that is a political argument and not one based on what is best for caving.

We haven't discussed this and I wasn't referring to you in my comments earlier - but it's exactly the argument you go on to make that has worried me.

The political element is irrelevant. Whether a landowner is a snob is irrelevant. And whether he or she thinks we're all drug dealers is irrelevant.

This should be about protecting the access we currently have for all caving activities and seeking to improve it. Not politics and especially not the politics of envy.


Tony

 

[Peter Burgess]

One thing that worries me slightly is that if Right of Access is demonstrated as a possibility, it might result in confrontation between cavers, never mind landowners (of course that can be same person). If a group has worked hard to gain access for cavers, with conditions agreed and accepted by the owners, is it more likely that other cavers are going to start banging the drums to get those conditions relaxed or removed, regardless of the hard work already done by cavers to achieve what may well be a perfectly acceptable access arrangement? What of the owner's agreement then? Are some cavers happy to see free access regardless of the antipathy it might create? All it needs is a small group, or even an individual, to take it upon themselves to cause trouble and I foresee years of acrimony. 

 

[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,

I think lots of people are thinking win/win.

What happens when the landowner doesn't share that view, is he going to engage in a costly legal battle? Doubt it. Much more likely that when later asked for permission to dig on his land he smiles and says "No". Or when asked to allow commercial groups in he says "No".

If CroW is a reality there would be no ?view? to share. He would be protected. If he didn?t agree with the law he would need to go through the same process of clarification that we are doing now. Quid pro quo.

Commercial groups (as you know) are not covered in any event and will need permission (as has always been the case).

I'd love to see an end result from the BCA that CRoW does cover caving but should only be used as a last resort when all other methods to gain access have failed, and that it should not be used where existing agreements are in place unless it's with the full agreement of the landowner.

Which would allow for an (alleged) corrupt permit system,  an (alleged) corrupt officialdom and a total exclusion for non-BCA members. I don?t think that is fair or reasonable.

Bob's right, the BCA need to resolve this quickly.

Agreed



Ian

 

[Bob Mehew]

One thing that worries me slightly is that if Right of Access is demonstrated as a possibility, it might result in confrontation between cavers, never mind landowners (of course that can be same person). ... All it needs is a small group, or even an individual, to take it upon themselves to cause trouble and I foresee years of acrimony.

I fear that genie came out of the bottle in April.  I am of the opinion (rightly or wrongly) that what in part has held back the 'independent' cavers over the past few months is the knowledge that some people are working to try and resolve this at a national level.  But I fear that spending over an hour debating whether the motion might be put does not give out the right signals to keep them on side.  Having said that, sadly we have always had the few cavers who will create problems and no doubt that will continue. 

 

[Bottlebank]

If CroW is a reality there would be no ?view? to share. He would be protected. If he didn?t agree with the law he would need to go through the same process of clarification that we are doing now. Quid pro quo.

No, all this would be based on is legal opinion, the law is unchanged - BCA don't have the power to make CRoW a reality, probably only the courts or the government do. I'm not certain if Natural England could. Bob may know? A landowner is perfectly within his rights to disagree with the BCA view on CRoW, whatever it turns out to be. As such even the protection the landowner gains from CRoW isn't guaranteed - a court might first have to rule CRoW applied if there was a contested claim.

Quote from: Bottlebank on Today at 12:45:46 pm

I'd love to see an end result from the BCA that CRoW does cover caving but should only be used as a last resort when all other methods to gain access have failed, and that it should not be used where existing agreements are in place unless it's with the full agreement of the landowner.


Which would allow for an (alleged) corrupt permit system,  an (alleged) corrupt officialdom and a total exclusion for non-BCA members. I don?t think that is fair or reasonable.

I assume by this you mean the present CNCC system? I'm 100% in favour of improving that - although I don't accept the corruption allegations - it certainly hasn't been fit for purpose in many ways my view.

 

[Peter Burgess]

My point is that misinterpretation of what is presented after all considerations will simply empower those who think of themselves as "do as you likeys", to the inconvenience of a great many people, cavers and owners alike, who manage perfectly well, to the greater benefit of us all, using trust and respect. Hence my earlier suggestion that we move on in due course from "Right of Access" to "Responsibility of Access".

 

[Bob Mehew]

BCA don't have the power to make CRoW a reality, probably only the courts or the government do. I'm not certain if Natural England could. ... A landowner is perfectly within his rights to disagree with the BCA view on CRoW, whatever it turns out to be. As such even the protection the landowner gains from CRoW isn't guaranteed - a court might first have to rule CRoW applied if there was a contested claim.

It would be a matter for the courts, not parliament since the act is in force.  Assuming we got a favorable response from the barrister, then my proposal was to go to NE (& NRW) for their view.  If NE accepted it and then changed their publication, access controlling bodies could then open up discussion with land owners.  I have not thought through what might be done if NE disagreed.  If the land owner refused to accept the advice, then it will come down to whether some caver will push it to the courts to decide.  The 'right of access' is a civil matter, so a denied caver would have to take a civil action against the land owner.  If the land owner enforced their presumed (based on my assumption) right to evict a trespassing caver (I assume the land owner has gone down the cave to do so), then again the caver could take a civil action against the land owner.  The matter only gets to criminal status if someone does something fairly drastic and breaches some other statute, or someone puts up a notice saying "no access" (see Sec 14).  HTH

 

[graham]

No, all this would be based on is legal opinion, the law is unchanged - BCA don't have the power to make CRoW a reality, probably only the courts or the government do. I'm not certain if Natural England could. Bob may know?

Wholly correct. An opinion is just that, an opinion until it has been tested in court. Even then it can be appealed.

Natural England do not have the power to "make CRoW a reality". They do not make the law. I cannot see those that do make the law, the government, being willing to make time for specific legislation on this point, so, unless NE and DEFRA  can be persuaded that the advice that they currently give is in error - and why should one legal opinion override the opinions that they doubtless obtained when the law was drafted - nothing will actually change with this opinion.

 

[Bob Mehew]

In practical terms, if a quango says it applies then most people are going to accept that view; especially as they are the body which is charged with implementing the act.  (Though I will admit to despair at the stupidity of some of the arguments coming out of them.)  I also hope that the barrister's opinion will be accessible to land owners so they can see the strength of the argument. 

If it gets to court, then my expectation is that after the first case, no one will challenge it in higher courts unless they are particularly wealthy and stupid (see http://www.bbc.co.uk/news/uk-england-surrey-10791702 for example).  If you read my link in http://ukcaving.com/board/index.php?topic=16672.msg218302#msg218302 you will see the predictable response from the government is that further legislation is not required (assuming it does not become a cause celebre for rowing back CRoW).

 

[graham]

I also hope that the barrister's opinion will be accessible to land owners so they can see the strength of the argument.

Even if it comes down as agreeing with NE & DEFRA?

 

[Bottlebank]

And assuming the first case is won.

 

[Blakethwaite]

If it gets to court, then my expectation is that after the first case, no one will challenge it in higher courts unless they are particularly wealthy and stupid.

Forgive me if I'm wrong but I'm reading that is as if the open intention is to put landowners over a barrel. How would this affect digging permissions and other activities  where landowner cooperation is required?

This question was asked earlier today and not answered by any of the subsequent posters in any meaningful way.

 

[Bottlebank]

If it gets to court, then my expectation is that after the first case, no one will challenge it in higher courts unless they are particularly wealthy and stupid.

Forgive me if I'm wrong but I'm reading that is as if the open intention is to put landowners over a barrel. How would this affect digging permissions and other activities  where landowner cooperation is required?

This question was asked earlier today and not answered by any of the subsequent posters in any meaningful way.

And many times previously.

I'm becoming more convinced that no matter how well intentioned the pro CRoW lobby are the whole thing is a can of worms which grows bigger the harder you examine it and all of us, the Regional Councils and BCA would be best advised to steer well clear and focus instead on improving access agreements.

Whilst we're on the legal stuff does anyone know if digging after permission has been refused could be a criminal offence?

 

[Bottlebank]

Whilst we're on the legal stuff does anyone know if digging after permission has been refused could be a criminal offence?

Just to qualify that question, so far as I'm aware NE can't give us permission to carry out work without the landowners consent.

 

[graham]

Whilst we're on the legal stuff does anyone know if digging after permission has been refused could be a criminal offence?

On a SSSI, almost definitely, I'd say.

 

[Bob Mehew]

I also hope that the barrister's opinion will be accessible to land owners so they can see the strength of the argument.

Even if it comes down as agreeing with NE & DEFRA?

Obviously a summary will be.

If it gets to court, then my expectation is that after the first case, no one will challenge it in higher courts unless they are particularly wealthy and stupid.

Forgive me if I'm wrong but I'm reading that is as if the open intention is to put landowners over a barrel. How would this affect digging permissions and other activities  where landowner cooperation is required?

This question was asked earlier today and not answered by any of the subsequent posters in any meaningful way.

If CRoW applies to caving then cavers will have a right "to enter and remain on any access land for the purposes of open-air recreation...".  In my provisional opinion if the law applies, then access agreements covering caves on access land have no value and locked caves will not be permitted. 

Whilst we're on the legal stuff does anyone know if digging after permission has been refused could be a criminal offence?

On a SSSI, almost definitely, I'd say.

Digging on access land without the land owners specific agreement is already prohibited under Schedule 2 para 1(l) but only at the civil level.  I am unsure about SSSI but think Graham is correct.