Stuart France
Active member
People have talked of framing a CROW test case around a ?cave trespass? on some friendly landowner?s land where the action would be non-trespass if statutory recreational caving access rights exist. Trespass is a civil law matter and the legal remedy that an aggrieved landowner has is to get an injunction against the people doing the trespassing and possible damages if there was some loss. There would have to be very good reasons for a court to issue an injunction as they are not handed out so freely these days.
If the trespass was only a minor nuisance then it will be hard to get the court to take the case seriously. I cannot imagine any court injuncting some Joe Public to stop him exploring inside some cave on CROW Access Land or on Urban Common as ?peaceful enjoyment?. I cannot see how a landowner can argue that someone who has a clear legal right to walk over Access Land to a cave entrance as a rambler would, and then disappear for a few hours into a cave as a caver would, then emerge and leave the Access Land as a rambler once again, could cause a material loss or an intolerable nuisance to anyone.
Another problem is that trespass will be dealt with in a local County Court. Whatever is decided will not set any legal precedent. The loser in the County Court would need to appeal in the High Court in order to establish the legal precedent they wish to have.
By contrast, Judicial Review (JR) cases always begin in the High Court, so the initial result could set a legal precedent. People have asked in the discussion above how much a JR costs. But a better opening question is: what matters can be dealt with by JR? The cost of a JR is not really relevant if you have no grounds for starting one.
The JR case that I contemplated in 2015-16 concerned NRW?s handling of a Bat Conservation Licence application involving a cave where, we suggested, NRW had not considered statutory public recreational access rights provided by the CROW Act. The bat licence sought permission to block up a cave entrance on CROW Access Land supposedly to protect bats from harm by cavers.
NRW wrote a letter to me, to dissuade me from going ahead with the JR, claiming they had not made any decision in the bat licence case, and so there was nothing for any court to review. NRW?s argument had some merit insofar as they told the licence applicant that ?NRW had withdrawn? their application because cavers do not harm bats and so there was no conservation problem to address. The applicants were also told they could re-apply for a Development class licence if they wished to prevent cavers entering this cave for private reasons.
A Development licence case turns on whether its outcome, closure of a cave entrance on Access Land in this instance, is for Imperative Reasons of Overwhelming Public Interest ? known as the IROPI (eye-ropey) test. As far as we know, no such application has yet been submitted, and it is hard to imagine what overwhelming public interest might be in closing a cave for private reasons.
My position was that not issuing the Conservation licence amounted to a refusal decision and that withdrawing an application is exclusively the gift of those who submitted it. But had the High Court agreed with NRW?s curious view that a document withdrawal by the recipient was not a decision amenable to JR then the Court would never have addressed the CROW caving question. It could have all been a waste of time and money discussing and getting no further in the High Court than exploring the meaning of words like withdraw/not issue/reject/decide/refuse etc.
As everyone knows, I decided not to go ahead having come to the conclusion that this particular bat licence case was too messy to have certainty of testing only the CROW question in court and only on its own merits. But what my encounter suggests is that NRW is unwilling to have the CROW question tested in court at all because it did its best to be obstructive when it could easily have taken the opportunity to obtain a judgement and saddle the loser with a big legal bill. This, together with critical deletions in the Freedom of Information Act (FOI) disclosures, indicates to me that NRW thinks they would likely be the loser if the CROW question was ever tested in court.
As to starting a future JR, someone will need to identify a matter in which some quango made a legal decision which was faulty. A JR case cannot be started simply to test an abstract legal concept in the absence of wrong being done. Speed is also of the essence as there is a short time-frame to start a JR after the discovery and notification of the alleged problem. One certain way for any public body to avoid a JR is to develop an aversion to decision-making. In my view, this is the operational rock and judicial hard place between which NRW now finds itself stuck.
As to costs, NRW?s solicitor reckoned in an email released in a FOI request that it will cost ?at least ?20,000 ? potentially doubled for the losing party if ordered to pay the other side?s costs?. I think estimating ?20,000 each is on the low side. It is impossible to say how much it might cost if a CROW case got to the Supreme Court via a series of appeals, but a figure of ?100,000 was given to me as indicative by an environmental law specialist QC.
BCA has ?220,000 of reserves in the last set of accounts that I have seen. BCA could set up a legal fund of say a third of that (?70,000) and seek finance from a small group of individuals with deep pockets that would be prepared to pledge ?1,000-?10,000 sums to be sure there was enough funding to take the case to the Supreme Court if need be, and thus get taken seriously by the opposing side from the outset. Another way would be crowd-funding. If half of BCA?s 6000 members were each prepared to donate ?20 on a one-off basis that generates ?60,000 and BCA reserves or larger donations could cover the remainder if more was needed.
Fishing/Angling has had a big legal fighting fund for 60 years. If caving contemplates doing similar then their website at fishlegal.net is worth a visit. Fishlegal have run cases against NRW with mixed results. Legal cases are always a lottery, even if there is strong legal opinion like Dinah Rose QC?s suggesting our odds of winning are very favourable.
NRW has admitted that it does not possess any barrister-level or QC opinion as to whether the CROW Act applies to going caving. NRW told me that the only time they have consulted a barrister was in drafting their letter claiming that no legal decision amenable to review had been made in the bat licence case. NRW have confirmed that cave conservation is not the reason for their anti-public access stance, and they also deny they are simply aligning themselves with Defra?s position. NRW explained their argument is purely an academic matter about semantics; whether caving falls within the ambit of the words ?open-air recreation? in the CROW Act 2000 and the term ?air and exercise? in the Law of Property Act 1925; whether ?Commons? includes the caves beneath the surface and if caves form part of ?Access Land?; and whether omission of cave survey details from paper OS maps excludes caves from the Access Land concept; and so on.
I gave NRW a hefty shove towards an opportunity to settle the matter in or out of court, but they were not concerned enough about caving to put their money where their mouth was. I also sense that NRW are afraid of losing the respect and cooperation of ordinary cavers and looking ridiculous by denying in the public eye that statutory access applies to caving. NRW?s pedantic and narrow legal interpretations go against the generality and the social purposes of access legislation enacted over the past century, and the effect is to undermine current government policy to encourage more active and healthy lifestyles that would benefit the modern nation.
The question that I would most like to ask now is why spend money when the CROW question can just be left up in the air, and NRW etc can just be left alone to spend more time with their private opinions instead of letting them pull our teeth? Recreational cavers could just keep calm and carry on caving where they have been legally advised by learned counsel unopposed by their peers that statutory access rights should apply.
Apologies for the length of this item, but it covers a number of recent themes posted.
If the trespass was only a minor nuisance then it will be hard to get the court to take the case seriously. I cannot imagine any court injuncting some Joe Public to stop him exploring inside some cave on CROW Access Land or on Urban Common as ?peaceful enjoyment?. I cannot see how a landowner can argue that someone who has a clear legal right to walk over Access Land to a cave entrance as a rambler would, and then disappear for a few hours into a cave as a caver would, then emerge and leave the Access Land as a rambler once again, could cause a material loss or an intolerable nuisance to anyone.
Another problem is that trespass will be dealt with in a local County Court. Whatever is decided will not set any legal precedent. The loser in the County Court would need to appeal in the High Court in order to establish the legal precedent they wish to have.
By contrast, Judicial Review (JR) cases always begin in the High Court, so the initial result could set a legal precedent. People have asked in the discussion above how much a JR costs. But a better opening question is: what matters can be dealt with by JR? The cost of a JR is not really relevant if you have no grounds for starting one.
The JR case that I contemplated in 2015-16 concerned NRW?s handling of a Bat Conservation Licence application involving a cave where, we suggested, NRW had not considered statutory public recreational access rights provided by the CROW Act. The bat licence sought permission to block up a cave entrance on CROW Access Land supposedly to protect bats from harm by cavers.
NRW wrote a letter to me, to dissuade me from going ahead with the JR, claiming they had not made any decision in the bat licence case, and so there was nothing for any court to review. NRW?s argument had some merit insofar as they told the licence applicant that ?NRW had withdrawn? their application because cavers do not harm bats and so there was no conservation problem to address. The applicants were also told they could re-apply for a Development class licence if they wished to prevent cavers entering this cave for private reasons.
A Development licence case turns on whether its outcome, closure of a cave entrance on Access Land in this instance, is for Imperative Reasons of Overwhelming Public Interest ? known as the IROPI (eye-ropey) test. As far as we know, no such application has yet been submitted, and it is hard to imagine what overwhelming public interest might be in closing a cave for private reasons.
My position was that not issuing the Conservation licence amounted to a refusal decision and that withdrawing an application is exclusively the gift of those who submitted it. But had the High Court agreed with NRW?s curious view that a document withdrawal by the recipient was not a decision amenable to JR then the Court would never have addressed the CROW caving question. It could have all been a waste of time and money discussing and getting no further in the High Court than exploring the meaning of words like withdraw/not issue/reject/decide/refuse etc.
As everyone knows, I decided not to go ahead having come to the conclusion that this particular bat licence case was too messy to have certainty of testing only the CROW question in court and only on its own merits. But what my encounter suggests is that NRW is unwilling to have the CROW question tested in court at all because it did its best to be obstructive when it could easily have taken the opportunity to obtain a judgement and saddle the loser with a big legal bill. This, together with critical deletions in the Freedom of Information Act (FOI) disclosures, indicates to me that NRW thinks they would likely be the loser if the CROW question was ever tested in court.
As to starting a future JR, someone will need to identify a matter in which some quango made a legal decision which was faulty. A JR case cannot be started simply to test an abstract legal concept in the absence of wrong being done. Speed is also of the essence as there is a short time-frame to start a JR after the discovery and notification of the alleged problem. One certain way for any public body to avoid a JR is to develop an aversion to decision-making. In my view, this is the operational rock and judicial hard place between which NRW now finds itself stuck.
As to costs, NRW?s solicitor reckoned in an email released in a FOI request that it will cost ?at least ?20,000 ? potentially doubled for the losing party if ordered to pay the other side?s costs?. I think estimating ?20,000 each is on the low side. It is impossible to say how much it might cost if a CROW case got to the Supreme Court via a series of appeals, but a figure of ?100,000 was given to me as indicative by an environmental law specialist QC.
BCA has ?220,000 of reserves in the last set of accounts that I have seen. BCA could set up a legal fund of say a third of that (?70,000) and seek finance from a small group of individuals with deep pockets that would be prepared to pledge ?1,000-?10,000 sums to be sure there was enough funding to take the case to the Supreme Court if need be, and thus get taken seriously by the opposing side from the outset. Another way would be crowd-funding. If half of BCA?s 6000 members were each prepared to donate ?20 on a one-off basis that generates ?60,000 and BCA reserves or larger donations could cover the remainder if more was needed.
Fishing/Angling has had a big legal fighting fund for 60 years. If caving contemplates doing similar then their website at fishlegal.net is worth a visit. Fishlegal have run cases against NRW with mixed results. Legal cases are always a lottery, even if there is strong legal opinion like Dinah Rose QC?s suggesting our odds of winning are very favourable.
NRW has admitted that it does not possess any barrister-level or QC opinion as to whether the CROW Act applies to going caving. NRW told me that the only time they have consulted a barrister was in drafting their letter claiming that no legal decision amenable to review had been made in the bat licence case. NRW have confirmed that cave conservation is not the reason for their anti-public access stance, and they also deny they are simply aligning themselves with Defra?s position. NRW explained their argument is purely an academic matter about semantics; whether caving falls within the ambit of the words ?open-air recreation? in the CROW Act 2000 and the term ?air and exercise? in the Law of Property Act 1925; whether ?Commons? includes the caves beneath the surface and if caves form part of ?Access Land?; and whether omission of cave survey details from paper OS maps excludes caves from the Access Land concept; and so on.
I gave NRW a hefty shove towards an opportunity to settle the matter in or out of court, but they were not concerned enough about caving to put their money where their mouth was. I also sense that NRW are afraid of losing the respect and cooperation of ordinary cavers and looking ridiculous by denying in the public eye that statutory access applies to caving. NRW?s pedantic and narrow legal interpretations go against the generality and the social purposes of access legislation enacted over the past century, and the effect is to undermine current government policy to encourage more active and healthy lifestyles that would benefit the modern nation.
The question that I would most like to ask now is why spend money when the CROW question can just be left up in the air, and NRW etc can just be left alone to spend more time with their private opinions instead of letting them pull our teeth? Recreational cavers could just keep calm and carry on caving where they have been legally advised by learned counsel unopposed by their peers that statutory access rights should apply.
Apologies for the length of this item, but it covers a number of recent themes posted.
