Access, CRoW and the BCA

[Blakethwaite]

This question was asked earlier today...

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. 

...and not answered by any of the subsequent posters in any meaningful way.

 

[Badlad]

Bob, myself and others have tried hard to answer your questions.  They seem to come rather machine gun like.  I asked Graham to clarify a couple of his points and - nothing.  I'll try again.  You said;

"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."  I explained that one of Defra's main points was that they did not think cave systems could be related to surface maps and boundaries.  Given modern mapping technigue, radio location and the fact that Natural England already map cave SSSI boundaries, do you really believe Defra's advice is clear.

You also said, "I hope they bloody do, 'cos on here the point has clearly been missed by a country mile."  Can you explain 'the point' that has clearly been missed by a country mile?

 

[Bottlebank]

Badlad,

Bob's answered a lot of questions, which has been great. I'd love you to answer one, as a digger if you can, as well as on behalf of the pro lobby.

What's emerged here is a clear point:

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.

I realise it's Bob's opinion, but I'm convinced he's right. I'm sure you are too. This confirms that the new CNCC Access Officer will be tearing up all existing agreements for all areas involving access land.

Can you please explain why you are not concerned that at least some of the various landowners involved will be very unhappy with this and may as a result decide to retaliate?

Cheers!

Tony (and I'm now to going to spectate only for a while)

 

[Stu]

Can you please explain why you are not concerned that at least some of the various landowners involved will be very unhappy with this and may as a result decide to retaliate?

Cheers!

Tony (and I'm now to going to spectate only for a while)

This was the same view/opinion/argument put forward by the anti-access lobby (I use that term very broadly) when the case for CRoW was put forward for walkers and climbers. As expected, not much "retaliation" occurred.

The owners with land that is already CRoW have had 13 years experience of actually not an awful lot of disruption to them or their land. One logic would be that they wouldn't see it as much of a difference 

One presumes that a landowner with land covered by CRoW who was approached by diggers for permission to dig a new surface entrance, might say no. (What motive? Pettiness - retaliation - because they don't get to exert control?). Then again they might just yes because they would have done so anyway  especially since there are liability benefits to them under CRoW.

Conjecture shouldn't get in the way of getting some truths.

 

[graham]

Bob, myself and others have tried hard to answer your questions.  They seem to come rather machine gun like.  I asked Graham to clarify a couple of his points and - nothing.  I'll try again.  You said;

And you will note that I asked where I could find the point so that I could respond to it. Now that you have done so, I shall.

"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."  I explained that one of Defra's main points was that they did not think cave systems could be related to surface maps and boundaries.  Given modern mapping technigue, radio location and the fact that Natural England already map cave SSSI boundaries, do you really believe Defra's advice is clear.

I would need to discuss the matter with whoever made that comment, there are a number of reasons why this might be the case, from the legal - cave maps are not made by any sort of authorized agency like the Ordnance Survey - to the practical - my personal experience of radio location would have me believing that it is nowhere near as reliable as some of its proponents might think. Cave SSSI's are drawn rather more widely than the limits of the cave itself as they extend to surface boundaries beyond the limits of the cave. This may make it unsuitable as a method in this particular scenario. I do not know & would be happy to have a discussion with them about this. It may simply, of course, be that at the time that access land boundaries were defined there was no perceived need to include caves - as the Act did not apply to them - and thus caves have simply not been included within the mapped features and so do not count as mapped access land.

You also said, "I hope they bloody do, 'cos on here the point has clearly been missed by a country mile."  Can you explain 'the point' that has clearly been missed by a country mile?

Yes, it is this very point. Up to then, in the discussions, the emphasis was on whether caving was, or was not, an 'open air activity'. This point is completely irrelevant if there is no mapped access land where the activity can be undertaken.

 

[martinr]

Can someone more knowledgeable than me, answer a question -

Under the present CRoW, do I have access to a waterway / watercourse (ie on the surface, not below ground)?.  If so, are there any limits to what I am allowed to do on a waterway / watercourse

What about dried-up river beds - does the CRoW allow access?

 

[Stu]

Can someone more knowledgeable than me, answer a question -

Under the present CRoW, do I have access to a waterway / watercourse (ie on the surface, not below ground)?.  If Iso, are there any limits to what I am allowed to do on a waterway / watercourse

What about dried-up river beds - does the CRoW allow access?

Water is excluded.

 

[martinr]

Can someone more knowledgeable than me, answer a question -

Under the present CRoW, do I have access to a waterway / watercourse (ie on the surface, not below ground)?.  If so, are there any limits to what I am allowed to do on a waterway / watercourse

What about dried-up river beds - does the CRoW allow access?

Water is excluded.

Therefore:

Do I have access to a waterway / watercourse  below ground?.  And what about dried-up watercourses below ground ?

 

[TheBitterEnd]

You don't need to be an expert, you can read Schedule 2 yourself here http://www.legislation.gov.uk/ukpga/2000/37/schedule/2 but in case you can't be bothered basically you can't swim, fish, hunt, sail a boat, etc.

 

[graham]

You don't need to be an expert, you can read Schedule 2 yourself here http://www.legislation.gov.uk/ukpga/2000/37/schedule/2 but in case you can't be bothered basically you can't swim, fish, hunt, sail a boat, etc.

That's the OFD streamway out, then.

And every single sump. Unless the plongeurs cease finning & take up bottom walking.

 

[Bob Mehew]

Yes, it is this very point. Up to then, in the discussions, the emphasis was on whether caving was, or was not, an 'open air activity'. This point is completely irrelevant if there is no mapped access land where the activity can be undertaken.

Access land is defined either by its surface characteristics of being open country or being registered common land or above 600m or being dedicated land.  NE or NRW undertake the selection of land with those characteristics and record it on a map as a 2 dimensional boundary.  (I will gloss over the details of the draft & appeal process of what is drawn on a map which I consider are not relevant to the point about 'mapped access land'.)  I claim the common law position of land ownership is that the land owner owns not only the surface of the land but also all the way down to the centre of the earth and all the way up to the heavens.  (Which is why I cited the BBC reported case - go read the first 12 pages of the Supreme Court judgement.)  So the 2D boundary on the map applies all the way down to the centre of the earth albeit ever decreasing in size, rather like a cone reduces to a point.  I submit if this 2D mapping process was good enough for scheduling SAMs' see http://data.historic-scotland.gov.uk/pls/htmldb/ESCHEDULE.P_ESCHEDULE_DOWNLOADFILE?p_file=606 then it is good enough for access land. 

Can someone more knowledgeable than me, answer a question -

Under the present CRoW, do I have access to a waterway / watercourse (ie on the surface, not below ground)?.  If Iso, are there any limits to what I am allowed to do on a waterway / watercourse

What about dried-up river beds - does the CRoW allow access?

Simple answer is you can't sail or disturb the fish or bathe.  See Schedule 2 para 1 (b), (f) & (i) in CRoW.  You can download a copy of the act at http://www.legislation.gov.uk/ukpga/2000/37/pdfs/ukpga_20000037_en.pdf and look for the words around page 86.  I assume below the surface is similar as the words do not specify surface.  Please note there is a section in the Blue Book on Rights of Way which deals with fords in a way helpful to the tenor of this enquiry.  IMO fording a stream is not bathing.

I regret I am now preoccupied with a family emergency so further responses might be very delayed.     

 

[martinr]

Thanks, that's a very comprehensive list of what I can not do. I was looking for a list of what I can do.

So, I've learned I can not swim in a cave. But can I crawl in a streamway? Is diving the same as swimming?

I can not camp, but can I brew up?
I can not obstruct a watercourse. But can I dig?
I can not put up a sign or notice, but what about leaving a log book in the entrance?

Thing is, the more you look into this the more it seems  (to me) that CRoW was never meant to include caving? And if CRoW is extended to caving, there are still caves we could not visit eg OFD streamway, Swildons beyond sump 1?

If CRoW had intended to include caving, wouldn't these kinds of anomalies have been sorted out when the Act was written, eg by including a clause to say caving is allowed? Or a clause making it clear that cave passages are not watercourses for the purpose of the Act?

 

[Les W]

And if CRoW is extended to caving, there are still caves we could not visit eg OFD streamway, Swildons beyond sump 1?

Swildon's is not within mapped access land so is a spurious example. 

It isn't a case of CROW being extended to include caving, what is being sought (with legal opinion) is whether CROW includes caving. If it is found to include caving then it always did, from the day the act came into force.

 

[bograt]

That's the OFD streamway out, then.

And every single sump. Unless the plongeurs cease finning & take up bottom walking.

Sorry, Graham, I suggest you read every clause of the act, then apply them all to your personal experience agenda, then make a positive proposal, then you can be truly considered as a serious contributer to this thread of the forum.

 

[graham]

That's the OFD streamway out, then.

And every single sump. Unless the plongeurs cease finning & take up bottom walking.

Sorry, Graham, I suggest you read every clause of the act, then apply them all to your personal experience agenda, then make a positive proposal, then you can be truly considered as a serious contributer to this thread of the forum.

What is this personal experience agenda of which you speak?

Anyway, I have read the bloody thing. Now it's your turn. Enjoy.

 

[Peter Burgess]

Personal Experience Agenda - an interesting phrase. Well, here is a thought experiment to fit into anybody's Personal Experience Agenda.

Think of a cave without complete freedom of access. Any cave. It might have a gate, or require a leader, or may simply require a permit to visit. Never mind whether or not it is on open access land for the purpose of this question, that is not relevant. It is important that it should be a cave you are familiar with, and which you enjoy visiting.

Now pretend it falls under open access land - perhaps it does anyway.

Now think whether or not the cave would be such a pleasure to visit were it open all hours to all comers - and I mean all comers, whether properly equipped and responsible cavers, or someone who might be going down "for a bit of a laugh" or collecting rocks and specimens. Remember the hoo ha about recent posts asking for easy access caves with nice formations? How much indignation was raised by that possibly totally innocent request!

How does that fit in with YOUR Personal Experience Agenda?

 

[bograt]

The rules are simple, areas of access ground are mapped, it has been suggested that these "should" include underground.
CRoW access is for "open air activity".

What we need is a legal definition, is caving an "open air activity"?.

 

[bograt]

That's the OFD streamway out, then.

And every single sump. Unless the plongeurs cease finning & take up bottom walking.

Sorry, Graham, I suggest you read every clause of the act, then apply them all to your personal experience agenda, then make a positive proposal, then you can be truly considered as a serious contributer to this thread of the forum.

What is this personal experience agenda of which you speak?

Anyway, I have read the bloody thing. Now it's your turn. Enjoy.

Read that a few years ago, there are a few amendments since then :icon_321:

 

[peterk]

Could I have an explanation as to the benefit to land owners of caves becoming "CROW".  The land owner already has a reduced liability in respect of natural features.  If he/she allows a shaft to be dug then that is not a natural feature (not going to debate that created by the elements and Acts of God).  If you look at the liabilty in respect of invited and trespassing "guests" then the liability in law is greater to invitees.

If you create another thread there could be endless discussions on "underground" liability.

If the only entrance to a show cave is not on open access land but 99.95% of the passages are under open access land do visitors have to obey the directions of the guide?  If a fully authorised dig gains access to the show cave what can the diggers do?

If caves become "CROW" then what about underground digging.  "Sorry, no because I can't see what you are doing and also from this survey you are under a SSSI and I have significant legally enforceable responsibilities"

Somewhere in this thread the issue of what "land" is.  It's defined in a property act from the 20's and then amended for aeroplanes, coal, gas and oil and the Queen owns gold and silver.

 

[bograt]

Could I have an explanation as to the benefit to land owners of caves becoming "CROW". 

There aren't any.