BCA Statement on Casterton Fell Access

[jasonbirder]

The landowner doesn't want to allow access to individuals, but only to organisations, presumably so that he can have more of a handle on who is on his land and what their bona fides are. As he owns the land, I reckon his desires trump yours.

But does he really? While I'm all for respecting the landowners wishes...are we just putting words into his mouth here?
Do we really believe the landowner is happy to allow walkers with no bona fides or affiliations in unlimited numbers to park up and walk on his land in an unrestricted manner (CROW land)

But the instance someone goes underground...he's instantly concerned about their parking...their contribution to erosion of his paths...their insurance...etc etc

Or is it simply the way the access agreement has evolved and hasn't changed to reflect land access changes?

(By the way...permit scheme as it stands doen't sound a problem...this seems pretty flexible and responsive to cavers needs...unlike some others involving applying significantly in advance...etc etc)

 

[kay]

You don't want to join a club. The landowner doesn't want to allow access to individuals, but only to organisations, presumably so that he can have more of a handle on who is on his land and what their bona fides are. As he owns the land, I reckon his desires trump yours.

But does he? Or does he want to limit it to "bona fide cavers" - which seems to be taken to mean members of caving clubs but not DIMs? Or is his main concern public liability insurance? And are the concerns of landowner A necessarily the same as the concerns of landowner B?

I too would love access to be opened up to DIMs (even if you do belong to a club, you may want a trip with a couple of mates, and why should your club be landed with the admin?) On the other hand, since the work negotiating access in the Dales is done by the Council of Northern Caving Clubs, you can understand why it focuses on club members not DIMs.

 

[antmcc]

I acknowledge that I could join a club, but not everyone wants to pursue that option, and if all the permits aren't being used, couldn't a system that allows people outside the club structure easier access to 'not pirate' improve the situation for the landowner. i.e. open up bookings for DIMs a month before a date and non BCA members at week's notice (i.e. give the clubs 'first dibs')

You don't want to join a club. The landowner doesn't want to allow access to individuals, but only to organisations, presumably so that he can have more of a handle on who is on his land and what their bona fides are. As he owns the land, I reckon his desires trump yours.

Absolutely, his desires do trump mine, since CRoW doesn't include caving (or this isn't legally proven either way), but that doesn't mean that some people won't access the fell without a permit. I'm not condoning this, nor saying I'll do it since a lot of good work is done negotiating access that I can and do enjoy (for which I am grateful to all concerned), the fact that I can't get access to all sites since I have chosen not to join a club is my own fault...

I don't want to pirate, and jeopardise agreements by my own selfish (or thoughtless) actions, but the easiest course of action in your view is join a club, to others outside that culture they've nothing to lose by pirating, since they have no 'right of access' now!

I'm only proposing that if the permits system gets reviewed, or a web-based solution gets developed, consideration is given to how, individuals either BCA, non BCA or both might be 'handled' in the process to avoid the actions of the individuals outside the club culture jeopardising access to all

 

[graham]

...since CRoW doesn't include caving (or this isn't legally proven either way) ...

Ignore those without legal training who tell you otherwise, CRoW does not include caving.

 

[antmcc]

...since CRoW doesn't include caving (or this isn't legally proven either way) ...

Ignore those without legal training who tell you otherwise, CRoW does not include caving.

I don't know anyone with legal training (nor your legal experience) , nor have I been pointed to any case law which set precedence, so I'm not qualified to know either way if your statement is correct (but I believe the same as you at the moment); nor do I know the facts behind the suggestions that I've seen that indicate it hasn't been legally tested (hence my remark in brackets)

Therefore at this stage I treat your perspective with equal weight as those presenting the counter argument, i.e. I'm not inclined to believe either side until I see something convincing to me (on the legally proven bit)

 

[alastairgott]

where's P.T. Mellors when you need him? 

 

[antmcc]

where's P.T. Mellors when you need him? 

Caving without a permit? 

 

[martinm]

where's P.T. Mellors when you need him? 

I don't think Pete (a very nice and knowledgeable person who I caved with for many years) follows these forums, unfortunately. (Pete is the DCA Legal & Insurance Officer and has been for many years.) :bow:

Regards, Mel.

 

[TheBitterEnd]

...since CRoW doesn't include caving (or this isn't legally proven either way) ...

Ignore those without legal training who tell you otherwise, CRoW does not include caving.

Neither does it exclude caving...

It does however exclude occupiers liability from natural features for those exercising their right to roam. However occupiers liability does apply to anyone invited or permitted to use the land by the landowner.

 

[graham]

...since CRoW doesn't include caving (or this isn't legally proven either way) ...

Ignore those without legal training who tell you otherwise, CRoW does not include caving.

Neither does it exclude caving...

I've had this argument on here before, it's pointless having it again.

 

[TheBitterEnd]

The act is silent on the matter and there is no precedent so may be we should "ignore those without legal training who tell you otherwise" ... it does not exclude caving.

It does however exclude occupiers liability from natural features for those exercising their right to roam. However occupiers liability does apply to anyone invited or permitted to use the land by the landowner.

 

[Fulk]

It does however exclude occupiers liability from natural features for those exercising their right to roam. However occupiers liability does apply to anyone invited or permitted to use the land by the landowner.

So ? if you go on a "pirate" trip and come to grief, you've no right to sue the landowner, but if you go with a permit and come to grief, you do have a "right" to sue (that's if you're stupid/bloody-minded enough to do so)?

 

[TheBitterEnd]

Short answer is  - who knows?  It would presumably have to go to court but the guidance from Natural England is here
http://www.naturalengland.org.uk/Images/Liability_tcm6-9802.pdf

The jist of this seems to be that an occupier of a piece of land should not be unduly burdened because of the CRoW Act, but should not be able to use that act to reduce their liability to people they invite or permit to use their land (one may imagine that this would include employees, people invited on a shoot, etc.). I guess only the courts could really decide if a CNCC issued permit constitutes the Occupier of the land permitting access.

However it would seem to be more clear the other way round, if there is no permit, and a sign saying "No Caving" then you would be exercising your right to roam and the landowner would not be liable for claims arising from Natural Features.

 

[graham]

... your right to roam ...

The right is for 'open air recreation'. Not something that happens with a roof over your head, then. 

 

[martinm]

Short answer is  - who knows?  It would presumably have to go to court but the guidance from Natural England is here
http://www.naturalengland.org.uk/Images/Liability_tcm6-9802.pdf

The jist of this seems to be that an occupier of a piece of land should not be unduly burdened because of the CRoW Act, but should not be able to use that act to reduce their liability to people they invite or permit to use their land (one may imagine that this would include employees, people invited on a shoot, etc.). I guess only the courts could really decide if a CNCC issued permit constitutes the Occupier of the land permitting access.

However it would seem to be more clear the other way round, if there is no permit, and a sign saying "No Caving" then you would be exercising your right to roam and the landowner would not be liable for claims arising from Natural Features.

Wow, very interesting.. There is stuff on this thread applicable across the country it seems... so if you do nothing you are not liable for stuff that happens on open access land, but if you explicitly  give access to your land / features (eg:- caves) maybe via permits, etc. you might be more liable!

 

[Alex]

It seems simple then:

Ban all access and lets get back to caving.

 

[Pete Brookdale]

Strangely Alex if all access was stopped banned etc people would still go caving, would be like the old days of caving under the cover of the night sky, sneaking around the fells getting changed in shakeholes, Actually it sounds more fun that way!

 

[droid]

'Why are you on my land'

'We're having a walk'

Why are you dressed in rubber suits then'

We're perverts!'

 

[Bob Mehew]

The act is silent on the matter and there is no precedent so may be we should "ignore those without legal training who tell you otherwise" ... it does not exclude caving.

As I recall The Ramblers produced a nice little book on foot paths and rights which included a decided case of a newspaper racing correspondent who used a footpath to obtain a view of horses being exercised on what was private land.  The land owner obtained an injunction to stop him doing so since he was not using the foot path as a means of passing from one place to another, rather he was using it to obtain information to help him give racing tips.  Alas I can't find my copy now.

 

[kay]

As I recall The Ramblers produced a nice little book on foot paths and rights which included a decided case of a newspaper racing correspondent who used a footpath to obtain a view of horses being exercised on what was private land.  The land owner obtained an injunction to stop him doing so since he was not using the foot path as a means of passing from one place to another, rather he was using it to obtain information to help him give racing tips.  Alas I can't find my copy now.

There was a more recent case of two neighbours in dispute, and the one reckoned the other was using a public footpath to be objectionable in some way (I forget details) - the court handed out an injunction to the effect that the offending neighbour had to pass along the footpath at a reasonable speed. I believe there was a later court case to discuss whether the speed now adopted by the neighbour was indeed reasonable.