Access, CRoW and the BCA

[martinr]

Interestingly, you can not get married in an outdoor venue, but you can get married in DYO show caves? 

 

[Bob Mehew]

In haste which is probably dangerous, the Act specifically prohibits certain activities in Schedule 2.  So work out if what you want to do is connected to one of those prohibitions.  If it is not, then it is likely you can do it.  Hence you can't "para glide" but you can fly a kite and you can't "camp" but you can picnic.  (These examples are taken from the debates in parliament.) 

Please note that "The land owner already has a reduced liability in respect of natural features" is wrong.  Under CRoW he has NO liability.  But I agree a dug shaft would not be a natural feature.  (Natural v man made features was also debated.)

Only one show cave entrance is within access land but it is excluded since it is within a building (Stump Cross). So they can refuse you access.  If you gain access via another entrance, then I don't know.  I have not yet had time to think my way through that option.

I am also a bit unsure about underground digging if there is no SSSI, I think not since although the prohibition does not mention soil or rock, the land owner may value the existing combination of soil and rock so take you to court in a civil action.  If the SSSI mentions mud banks etc as a 'PDO' or what ever it is called these days, then you never could dig without permission of the land owner and NE.

Land was most definitively defined in http://www.supremecourt.uk/decided-cases/docs/UKSC_2009_0032_Judgment.pdf

Re  is caving an "open air activity"? (you really mean open air recreation) - then NE have said yes.  I am a bit dubious which is why it is a specific point in the submission to the barrister.  (And to add to the oddities, you can't get cremated out of doors but the court spent a lot of time deciding that a very airy structure was a building.)

I have a draft document covering the implications of Schedule 2 but it is not yet fit for publishing.  If you PM me with sensible examples, I will see if I can fit them into the document. 

PS - thanks for the distraction.

 

[graham]

Re  is caving an "open air activity"? (you really mean open air recreation) - then NE have said yes.

That's not what NE said to me. So I do not think that the statement that you have is necessarily authoritative.

 

[mikem]

So including caves in CRoW legislation may result in more caves being locked to either:
protect the public from hurting themselves in the cave,
or protect the cave from the general public.

Mike

 

[Peter Burgess]

Not if the opinion:

access agreements covering caves on access land have no value and locked caves will not be permitted.

has any validity, they won't.

 

[Bob Mehew]

On the lighter side, I did briefly ponder about putting a motion to change the name of BCA to the British Surface Caving Association but accepted it would be unconstitutional to do so for the AGM just gone. 

 

[TheBitterEnd]

But I agree a dug shaft would not be a natural feature.  (Natural v man made features was also debated.)
...
PS - thanks for the distraction.

Apologies for another distraction but is there a question of extent here? What is a dug shaft?

A stream bed is presumably a natural feature even though the rocks keep moving around.

If I accidentally knock a rock off an out-crop is it no longer a natural feature?

If I deliberately move a rock off a foot path to avoid a trip hazard or if I place some rocks on a path to prevent erosion is the path a natural feature. Indeed is any kind of "path" a natural feature.

Of course where this is going is how many rocks can I move before clearing debris becomes digging?

I would say for the vast majority of digs the shaft/entrance is a natural feature - it  obviously is - something like the mistral entrance might not be because it was extensively modified by blasting. Clearing an entrance or shaft of debris, be that rocks, dead sheep, rubbish dumped by the farmer or whatever does not change the fact that the shaft was created by nature.

Considering something Committee Pot, there is also the provisions of Section 34 of the act which might apply if something like Committee Pot was considered too extensively modified to be natural... 

 

[Bottlebank]

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.

Thanks Stuart, I think that probably does sum up the pro lobby's view. Problem is it's a high risk strategy based on an assumption that landowners will simply accept it. Obviously some will, but we don't know how many.

Where walkers were concerned there wasn't much landowners could do to retaliate, sales of "Beware of the Bull" signs shot up but they really were over a barrel and had no choice but to accept. Where caving is concerned there is a clear route for them to express displeasure. They will still have control over some caving activities and some may well decide to exercise that - we've no way of knowing how many would just as the pro lobby have no way of proving none would - but it seems logical that the landowners who have tried to control access in the past would be more likely to do this.

There is no comparable evidence we can base this on. Whether individually we are pro or anti CRoW, or somewhere in the middle, it is all conjecture. What we do know is roughly the state of access at present, without CRoW. And it's pretty good.

Separately we also know that on SSSI's we can't legally dig without NE permission, and we can't get that without landowners permission, and that includes underground as well as surface digging.

My preference is for a low risk strategy - and there are a lot of if's. If the legal opinion is pro CRoW, if the BCA decides to adopt it, and if NE can be persuaded to change their view then to me it would make sense to use it where there is currently no access, and where the landowners indicate they are perfectly happy with it. Let them take the decision, don't force it on them.

Whilst it appears (in Bob's view) that all existing access agreements would have no value and could be ripped up there is nothing to stop us abiding by them if we choose to, and letting the CNCC and other bodies work towards improving access - widening it to include individual cavers for example - resolving problems for commercial cavers - improving the permit system (this should be much easier as it will probably deal with far fewer sites) and negotiating for increased numbers of permits where needed.

To me this would be a common sense approach, it would give the pro lobby much but not all that they want, deal with genuine concerns of diggers for example, allow us to build on existing goodwill and at the same time open up a few sites that are currently closed.

 

[caving_fox]

caving-fox

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

What about it.
A day later - and three pages of comment. But it still seems relevant as above: Again until we know how big c) is then I don't see the fuss. It is primarily landowners who have caves that are both CROW and non-Crow that digging permissions could be effected. I fail to see other than out of spite why a landowner who has caves solely on CROW would be any more antagonistic against digging activity than they already are.

 

[Ian Adams]

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

Very nice statement to make.

It does seem like the "anti-brigade" are throwing anything and everything to create an affray by obfuscating the issue which is quite simply an attempt to clarify the law.

Once clarified, the BCA can then issue a policy statement (presumably after consultation).

I fail to see why some people find it habitually necessary to obstruct this process and cast "doom" across the world of caving.

Get a grip.

Ian

 

[Peter Burgess]

I would have thought it was obvious, Ian.

Why is the clarification being sought? Do you expect everyone to say "That's nice - we have clarification" and then carry on as before? I don't think so. Nobody has really said what lies beyond clarification of CRoW. Perhaps you would like to start.

As long as there is a perception of a further agenda beyond, you will get speculation on what that agenda might be, and all the ramifications that go with it.

 

[Ian Adams]

Why is clarification being sought ?

To establish whether a recreational caver has the right to enter a cave on CRoW land.

What lies beyond ?

Well, not much if CRoW is found to not cover entering caves.

If it does, I would hope and expect the BCA to move positively forward. I would hope and expect all (interested) cavers to make positive proposals on how to move forward. It could be seen to be reasonable to discuss those prospects (if not premature) at this time.

Instead, we have a number of people specifically trying to derail the process by throwing spanners in the works. Conversely, some anti-open access people have made suggestions that are perfectly proper (even if I (or others) don?t agree) ? proper ?debate? always has a value and if CRoW becomes a reality then it is right and proper that all voices should be heard.

I don?t, however, believe that is happening. I see a ?warzone? of deflection, distraction and damnation being levied against the process of clarification which is appalling coming from our own fraternity. I see (some) people ?imposing? their views and predicting the proverbial end to everything if we exercise rights under CRoW ? in short, doom-mongering. That is sad.

Ian

 

[TheBitterEnd]

I fail to see why some people find it habitually necessary to obstruct this process and cast "doom" across the world of caving.

Get a grip.

Ian

Well said Ian.

Some cavers seem to be hugely disconnected from the reality of the situation, which is that there are actually very few cavers and even fewer diggers and if other posts on this forum are to be believed a significant number of those carry on regardless anyway.

 

[Peter Burgess]

If it does, I would hope and expect the BCA to move positively forward. I would hope and expect all (interested) cavers to make positive proposals on how to move forward. It could be seen to be reasonable to discuss those prospects (if not premature) at this time.

I happen to think people are expressing genuine concerns rather than behaving mischievously - please tell us what you think the prospects are? We know what some of the Antis think the prospects are. What do you think they are? Saying that the further agenda is "discussing prospects" is not really an answer. It's simply stating the obvious. What do you HOPE the prospects are, because the antis have given us to an extent what they FEAR the prospects will be? Good grief, this is getting a bit like the Scottish referendum debate!

 

[graham]

Good grief, this is getting a bit like the Scottish referendum debate!

Where there is clearly, in law, open access to caves. Unlike England and Wales. 

 

[Peter Burgess]

The CRoW debate on UKCaving in 50 words:

Pro: We would like caving activities to be covered by CRoW.

Anti: We would rather they weren't.

Pro: Why?

Anti: Because we are worried that there will be bad consequences, like this and that.

Pro: Well, if all you can do is be negative about it, we must be right and you must be wrong.

END OF DEBATE

 

[Bottlebank]

END OF DEBATE

I'll bet you a ?1 it isn't

 

[Peter Burgess]

I lose!

 

[potholer]

They have stated that CRoW does not apply to caving, but then they later conceded that it does apply to caving in open shafts and the like.

Seems like their opinion was about large open caves.

That doesn't necessarily mean any more than them thinking it would be silly or unworkable to consider walking a feet feet into a large cave-man-type cave a potential act of trespass or similar,  since that's something that some random walker could do unplanned, unequipped, and even arguably by accident if they were wandering around near the entrance, depending where the 'cave' was defined as starting.

I think even someone who believed caving without explicit permission should be illegal or was illegal would still likely think it would be a bit daft to draw a rigid imaginary line on the ground under the edge of an overhang and say a walker who simply walked over the line onto ground that was still daylit was meaningfully doing something other than walking.

In other words, even if what NE said was the official/legal position, I'm not sure it means anything for caving, since a walker walking a little way into a large open entrance isn't really caving any more than they are 'climbing' if they put a hand on a rock while taking a step up.

 

[Stu]

My preference is for a low risk strategy - and there are a lot of if's. If the legal opinion is pro CRoW, if the BCA decides to adopt it, and if NE can be persuaded to change their view then to me it would make sense to use it where there is currently no access, and where the landowners indicate they are perfectly happy with it. Let them take the decision, don't force it on them.

Whilst it appears (in Bob's view) that all existing access agreements would have no value and could be ripped up there is nothing to stop us abiding by them if we choose to, and letting the CNCC and other bodies work towards improving access - widening it to include individual cavers for example - resolving problems for commercial cavers - improving the permit system (this should be much easier as it will probably deal with far fewer sites) and negotiating for increased numbers of permits where needed.

To me this would be a common sense approach, it would give the pro lobby much but not all that they want, deal with genuine concerns of diggers for example, allow us to build on existing goodwill and at the same time open up a few sites that are currently closed.

I'd agree that there is no rush to push for anything.