Access to crags/caves
- Thread starter Simon Wilson
- Start date
Simon Wilson
New member
TheBitterEnd said:
This is why it needs clarifying.
Simon Wilson said:
I'm new here and really don't want to get in an argument with someone who is clearly a long term member, it's not really the way to make friends, I'm not sure though how that link shows it isn't trespass until you're caught though but I'm quite happy to agree to disagree
Apologies in advance to all who have heard enough on this subject but...
It may be important to consider different designations of land type. The subject of this thread is about 'access land' as defined under the Countryside and Rights of Way Act. See subsection (4) in particular;
2.?(1) Any person is entitled by virtue of this subsection to enter and
remain on any access land for the purposes of open-air recreation, if and
so long as -
(a) he does so without breaking or damaging any wall, fence, hedge,
stile or gate, and
(b) he observes the general restrictions in Schedule 2 and any other
restrictions imposed in relation to the land under Chapter II.
(2) Subsection (1) has effect subject to subsections (3) and (4) and to
the provisions of Chapter II.
(3) Subsection (1) does not entitle a person to enter or be on any land,
or do anything on any land, in contravention of any prohibition
contained in or having effect under any enactment, other than an
enactment contained in a local or private Act.
(4) If a person becomes a trespasser on any access land by failing to
comply with?
(a) subsection (1)(a),
(b) the general restrictions in Schedule 2, or
(c) any other restrictions imposed in relation to the land under
Chapter II,
he may not, within 72 hours after leaving that land, exercise his right
under subsection (1) to enter that land again or to enter other land in the
same ownership.
Whatever side of the CRoW fence you sit on there is no clear definition whether caving comes under the Act or not. It may do, it may not. If it does then you can go caving on access land without the landowner's permission. If it does not then you would need landowner permission. It is very unlikely that any landowner would wish to pursue the CRoW caving conundrum through the courts as the risks of losing a lot of money are great. So, concerning trespass for caving on access land, in the worse case you will be expected to leave the land for 72 hours and not return as described in subsection (4).
It may be important to consider different designations of land type. The subject of this thread is about 'access land' as defined under the Countryside and Rights of Way Act. See subsection (4) in particular;
2.?(1) Any person is entitled by virtue of this subsection to enter and
remain on any access land for the purposes of open-air recreation, if and
so long as -
(a) he does so without breaking or damaging any wall, fence, hedge,
stile or gate, and
(b) he observes the general restrictions in Schedule 2 and any other
restrictions imposed in relation to the land under Chapter II.
(2) Subsection (1) has effect subject to subsections (3) and (4) and to
the provisions of Chapter II.
(3) Subsection (1) does not entitle a person to enter or be on any land,
or do anything on any land, in contravention of any prohibition
contained in or having effect under any enactment, other than an
enactment contained in a local or private Act.
(4) If a person becomes a trespasser on any access land by failing to
comply with?
(a) subsection (1)(a),
(b) the general restrictions in Schedule 2, or
(c) any other restrictions imposed in relation to the land under
Chapter II,
he may not, within 72 hours after leaving that land, exercise his right
under subsection (1) to enter that land again or to enter other land in the
same ownership.
Whatever side of the CRoW fence you sit on there is no clear definition whether caving comes under the Act or not. It may do, it may not. If it does then you can go caving on access land without the landowner's permission. If it does not then you would need landowner permission. It is very unlikely that any landowner would wish to pursue the CRoW caving conundrum through the courts as the risks of losing a lot of money are great. So, concerning trespass for caving on access land, in the worse case you will be expected to leave the land for 72 hours and not return as described in subsection (4).
Out of curiosity does the act define anywhere what it constitutes as "open air activity" as this could mean caving as your still technically within air just on a different level, or does it mean for example grassland? I think a lot of these things are left very open ended and need to wait until precedence is set through case law so it may be the unfortunate case that it's unanswered until people actually do get taken to court by a land owner
No, the Act does not define 'open air recreation" as it puts it. The government stated at the time,
"The Bill provides a right of access to land for "the purposes of open-air recreation". This term was not defined in drafting the Bill because we considered that a definition would be undesirably restrictive and unnecessary."
In fact the government refused an amendment which stated, " 'open air recreation' means recreational activities usually carried out in the open air".
Make of that what you will. :thumbsdown:
"The Bill provides a right of access to land for "the purposes of open-air recreation". This term was not defined in drafting the Bill because we considered that a definition would be undesirably restrictive and unnecessary."
In fact the government refused an amendment which stated, " 'open air recreation' means recreational activities usually carried out in the open air".
Make of that what you will. :thumbsdown:
Bob Mehew
Well-known member
May I observe that I took this thread to be focused on access land as defined by CRoW (disregarding the argument as to whether having mapped the land surface it also applies to above and below the surface) even though Simon's original post did not specify that point.
It may be a minor technicality but as trespass is only a civil matter, then the terminology of guilty / illegal and so forth which is applicable to criminal law is not applicable here. Matters relating to trespass would only come before a civil court and the only result would be a judgement deciding on whether or not one party was wronged and is due compensation. Aggravated trespass is a criminal matter created by several laws and opens up a new ball game.
CRoW does not remove the ability of the land owner to make agreements on access to his land. So the CNCC permit can sit alongside such access as may be allowed by CRoW. Indeed one point we have made is that some caves can be protected by gate and key and leader (or what ever) if thought needed by NE or NRW issuing a Section 26 Direction excluding the cave from the CRoW right of access. That still leaves the land owner to come up with an alternative control mechanism such as pre existing access arrangements. (Admittedly that opens up a new area of argument but I will duck that for the time being.)
zeroISMe and others new to this debate might wish to read something Badlad, I and Jenny put together at https://drive.google.com/open?id=0B0RTfmWzkLQMVkdfNlNFeU1MeFk for the 2014 Hidden Earth.
It may be a minor technicality but as trespass is only a civil matter, then the terminology of guilty / illegal and so forth which is applicable to criminal law is not applicable here. Matters relating to trespass would only come before a civil court and the only result would be a judgement deciding on whether or not one party was wronged and is due compensation. Aggravated trespass is a criminal matter created by several laws and opens up a new ball game.
TheBitterEnd said:
CRoW does not remove the ability of the land owner to make agreements on access to his land. So the CNCC permit can sit alongside such access as may be allowed by CRoW. Indeed one point we have made is that some caves can be protected by gate and key and leader (or what ever) if thought needed by NE or NRW issuing a Section 26 Direction excluding the cave from the CRoW right of access. That still leaves the land owner to come up with an alternative control mechanism such as pre existing access arrangements. (Admittedly that opens up a new area of argument but I will duck that for the time being.)
zeroISMe and others new to this debate might wish to read something Badlad, I and Jenny put together at https://drive.google.com/open?id=0B0RTfmWzkLQMVkdfNlNFeU1MeFk for the 2014 Hidden Earth.
pwhole
Well-known member
I suspect 'open air activity' was their legal fudge from working backwards in order to define what's not a cave. 'Seeing the sky' sounds too absurd for words, despite the 'daylight penetration' clause, so I guess open air is the next best thing. It seems clear to me that the primary problem is that caves don't have to follow (humanly-created artificial) land boundaries, and so can leave access land and head into private non-access land.
A good example of this kind of problem is the upper reaches of the Speedwell streamway in Castleton, which enters and leaves the JH Scheduled Monument boundary more than once as it bends naturally, unlike the drystone wall marking the scheduling zone on surface! So you can legally dig at one bend (with SSSI permission), but not another, as that's damage to a monument, which is a serious criminal offence. In fact, any unauthorised repairs or even exploration work (like installing bolts) in JH is now a serious criminal offence. Work that one out...dare we publish it?! And our Longcliffe shaft restoration, on access land, and with the permission of the landowner could end up outside the access land boundary, if it connects elsewhere, though the landowners involved would probably be sympathetic, so not really a worry.
It's all a bit pointless, unless there's another exit onto the private land, or cavers are digging beneath an obvious surface collapse risk, both of which the landowner could rightfully object to. But just visiting is ridiculous. Personally I don't even have an issue with gates, as long as they're only locked with a nut and bolt.
A good example of this kind of problem is the upper reaches of the Speedwell streamway in Castleton, which enters and leaves the JH Scheduled Monument boundary more than once as it bends naturally, unlike the drystone wall marking the scheduling zone on surface! So you can legally dig at one bend (with SSSI permission), but not another, as that's damage to a monument, which is a serious criminal offence. In fact, any unauthorised repairs or even exploration work (like installing bolts) in JH is now a serious criminal offence. Work that one out...dare we publish it?! And our Longcliffe shaft restoration, on access land, and with the permission of the landowner could end up outside the access land boundary, if it connects elsewhere, though the landowners involved would probably be sympathetic, so not really a worry.
It's all a bit pointless, unless there's another exit onto the private land, or cavers are digging beneath an obvious surface collapse risk, both of which the landowner could rightfully object to. But just visiting is ridiculous. Personally I don't even have an issue with gates, as long as they're only locked with a nut and bolt.
The development of the term 'open-air recreation' has been a long one but it has always been associated with improving access to the outdoors. Here's a few;
House of Commons debate of 1843 on the Inclosures Bill.
Mr Muntz ?agreed that nothing was more wanted in manufacturing towns than places of recreation for the inhabitants, and that no greater boon could be given to the working-classes than that of providing such places. The want of places of recreation in the open air drove many of the inhabitants to the public-house, where almost necessarily they became drunkards.?
In the same debate the term ?exercise and recreation? are used.
Mr Stanton ?That in every bill for enclosing lands provision be made for reserving a portion of the land to be enclosed to be let in allotments, not exceeding a quarter of an acre each, to the labouring population of the district, and for leaving an open space in the most appropriate situation, sufficient for purposes of exercise and recreation of the neighbouring population;?
Section 193 of the Law of Property Act 1925 states, ?Members of the public shall, subject as hereafter provided, have rights of access for air and exercise to any land which is metropolitan common within the meaning of the Metropolitan Commons Act 1866-1898??
Access to the Mountains Bill.
House of Lords Debate, 06 June 1939. ?Subject to the provisions of this Act, no owner or occupier of, or person having an interest in, land to which this Act applies shall be entitled to exclude any person from entering or being on the land, on any day between one hour before sunrise and one hour after sunset, for the purpose of air and pedestrian exercise so long as he??
National Parks and Access to the Countryside Act 1949, Part 1, Section 1(b). ?For encouraging the provision or improvement, for persons resorting to National Parks, of facilities for enjoyment of the opportunities for open air recreation and the study of nature afforded thereby.?
...and of course...
The Countryside and Rights of Way Act 2000, Part 1, Section 2(1). ?Any person is entitled by virtue of this subsection to enter and remain on any access land for the purposes of open-air recreation, if and so long as-?
It is difficult to assess how much influence the ?open air movement? may have had on this most recent term. This was a strong and influential movement who amongst other things promoted ?open air schools? whose aim was to bring fresh mountain air into the classroom in order to prevent the scourge of diseases such as tuberculosis. The movement was at its height throughout the 1930?s, 40?s and 50?s, during the era when the term 'open-air recreation' was first used in legislation.
None of the terms were ever used in the narrow sense to rule out the inclusion of caving for example.
House of Commons debate of 1843 on the Inclosures Bill.
Mr Muntz ?agreed that nothing was more wanted in manufacturing towns than places of recreation for the inhabitants, and that no greater boon could be given to the working-classes than that of providing such places. The want of places of recreation in the open air drove many of the inhabitants to the public-house, where almost necessarily they became drunkards.?
In the same debate the term ?exercise and recreation? are used.
Mr Stanton ?That in every bill for enclosing lands provision be made for reserving a portion of the land to be enclosed to be let in allotments, not exceeding a quarter of an acre each, to the labouring population of the district, and for leaving an open space in the most appropriate situation, sufficient for purposes of exercise and recreation of the neighbouring population;?
Section 193 of the Law of Property Act 1925 states, ?Members of the public shall, subject as hereafter provided, have rights of access for air and exercise to any land which is metropolitan common within the meaning of the Metropolitan Commons Act 1866-1898??
Access to the Mountains Bill.
House of Lords Debate, 06 June 1939. ?Subject to the provisions of this Act, no owner or occupier of, or person having an interest in, land to which this Act applies shall be entitled to exclude any person from entering or being on the land, on any day between one hour before sunrise and one hour after sunset, for the purpose of air and pedestrian exercise so long as he??
National Parks and Access to the Countryside Act 1949, Part 1, Section 1(b). ?For encouraging the provision or improvement, for persons resorting to National Parks, of facilities for enjoyment of the opportunities for open air recreation and the study of nature afforded thereby.?
...and of course...
The Countryside and Rights of Way Act 2000, Part 1, Section 2(1). ?Any person is entitled by virtue of this subsection to enter and remain on any access land for the purposes of open-air recreation, if and so long as-?
It is difficult to assess how much influence the ?open air movement? may have had on this most recent term. This was a strong and influential movement who amongst other things promoted ?open air schools? whose aim was to bring fresh mountain air into the classroom in order to prevent the scourge of diseases such as tuberculosis. The movement was at its height throughout the 1930?s, 40?s and 50?s, during the era when the term 'open-air recreation' was first used in legislation.
None of the terms were ever used in the narrow sense to rule out the inclusion of caving for example.
As I have pointed out on another thread, the Sports Council in 1972 recognised the NCA as being the "National Body for caving" for the purposes of grant aid and classified caving as an "Outdoor Pursuit". All dealings with the various sports councils of England, UK and the regions (and CCPR as was), by both NCA and its successor, BCA, have followed this line and caving has always been considered by the Sports Councils, etc. to be an "Outdoor Pursuit".
The East Midlands Sports Council also considered caving to be an "open air recreation" or "sport using natural facilities" when it was in discussions with DCA.
At no time was it ever considered by any of the sports council's officialdom that caving was not "outdoor" or "open air" because there was nothing else it could be.
The East Midlands Sports Council also considered caving to be an "open air recreation" or "sport using natural facilities" when it was in discussions with DCA.
At no time was it ever considered by any of the sports council's officialdom that caving was not "outdoor" or "open air" because there was nothing else it could be.
