BCA Statement on land ownership and caves

[AndyF]

Please explain.

By all means - the BCA Council are palming off on their membership what could be kindly described as opinion, as definitive truth - e.g. "The law in England and Wales is thus absolutely clear; access to caves and disused mines is entirely at the discretion of the landowner and/or occupier (e.g. the farmer)."  A less generous interpretation is that they are passing off untruth as truth. Either way, it shows a lack of respect for the membership.

What I do know is that very few of the sites I visit are affected by the CROW act and as such, the BCA statement reflects precisely the nature of cavers' relationship with mine/cave owners. I for one would be highly exasperated if a few "me me me" cavers forced the issue to the extent that exerting a 'right' of access to CROW land caves spoilt the harmonious relationships many of us have developed over the years using trust and respect.

I sort of agree with Peter. The general access situation is fine as is... but that is what should be explained in this document, not stating as "law.....absolutely clear" something which in fact is "undefined and woolly".... That looses credibility and undermines the document. The BCRA and NAMHO may well have been consulted. Sadly none of what went on in that consultation appears to have made it into the black and white of the act itself...

Perhaps someone can point out the paragraph that makes this "absoultely clear" in the act, of which the text is here...

http://www.opsi.gov.uk/acts/acts2000/ukpga_20000037_en_1

In fact owners are excluded from any liability on access land from:-

(a)
a risk resulting from the existence of any natural feature of the landscape, or any river, stream, ditch or pond whether or not a natural feature

This lifts landowner liablity (a major concern for many) for caves....but not for mines

 

[graham]

Just a shot in the dark based on AndfyF's last post. Try

Rights of public in relation to access land

(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,

So if it's locked it's locked and "you" have no right to do owt about that.

Then, as far as Draenen is concerned & if anything does think they might have a case:

(3) A person restricts access by virtue of subsection (1) of section 2 to any land where he provides that the right conferred by that subsection?

(a) is exercisable only along specified routes or ways,

(b) is exercisable only after entering the land at a specified place or places,

Which means that even if Draenen were declared "open season" because of this (which it won't be) the owners could still insist that their one entrance is used.

Other examples can be found.

I am not trying to give an exhaustive view of the law here, I couldn't. However, neither could any of the other non-lawyers amongst us, save those, like David, who were involved in the consultations and understand what was going on.

 

[whitelackington]

It is perfectly true that just about anything can be challenged in the courts. Why would any caver wish to challenge this when they sure as hell would not be able to challenge the closure of every cave on access land with a ton or two of readymix the day before the hearing.

CRoW most certainly does not give any right to dig and no landowner would ever allow digging again.

And the document released by Judson is not crap. It is in line with the consultations that were carried out during the development of the bill that became CroW. Langcliffe, who of course has a sublime understanding of how the law operates, will know that the courts do take into account the intent of the lawmakers should there be any unintended lack of clarity in their final wording.

Graham,
have you any idea how much two tons of readymix would cost you,
no, I thought not.

 

[Peter Burgess]

http://www.homebuilding.co.uk/feature/what-will-it-cost-getting-out-ground

"Ready-mixed concrete varies in price across the country from as little as ?40/m? up to ?70/m?."

So, roughly the cost of a couple of good security padlocks.

 

[whitelackington]

http://www.homebuilding.co.uk/feature/what-will-it-cost-getting-out-ground
Quote Graham
"It is perfectly true that just about anything can be challenged in the courts. Why would any caver wish to challenge this when they sure as hell would not be able to challenge the closure of every cave on access land with a ton or two of readymix the day before the hearing."

"Ready-mixed concrete varies in price across the country from as little as ?40/m? up to ?70/m?."

You also have to figure in the pumping cost
which for a lot of cave entrances would be considerable. 

And of course the not minute cost of shuttering  :-\

 

[AndyF]

Just a shot in the dark based on AndfyF's last post. Try

Rights of public in relation to access land

(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,

So if it's locked it's locked and "you" have no right to do owt about that.

Correct

Then, as far as Draenen is concerned & if anything does think they might have a case:

(3) A person restricts access by virtue of subsection (1) of section 2 to any land where he provides that the right conferred by that subsection?

(a) is exercisable only along specified routes or ways,

(b) is exercisable only after entering the land at a specified place or places,

Which means that even if Draenen were declared "open season" because of this (which it won't be) the owners could still insist that their one entrance is used.

It means nothing of the sort.. "Entering the land at a specific place" means crossing the boundary to the land.

Also, you best go read those subsections... 

Other examples can be found.

Where?

I am not trying to give an exhaustive view of the law here, I couldn't. However, neither could any of the other non-lawyers amongst us, save those, like David, who were involved in the consultations and understand what was going on.

I think most of us can read English and the act is written in pretty simple terms. It doesnt mention caving or caves. Simples. There is nothing in it that includes or excludes caves or caving. The issue is thus not determined and there is no precedent case AFAIK to cover it.

People hide behind claims of what a law says frequently, "Health and Safety" is a good example, but I'm afraid they just look pretty foolish when people actually go and check it up, as is done here.

 

[graham]

According to the Portland cement association, concrete has a density of 1840 to 2320 kg/cubic m so one cubic metre is the (very) rough equivalent of a couple of tons. I am assuming that Peter's figures include delivery, which in my experience they usually do. So this is no biggy really, provided you can get a barrow from the nearest point of access to the place where you want it.

 

[graham]

It means nothing of the sort.. "Entering the land at a specific place" means crossing the boundary to the land.

Got counsel's opinion on that did you? 

 

[AndyF]

It means nothing of the sort.. "Entering the land at a specific place" means crossing the boundary to the land.

Got counsel's opinion on that did you? 

No, my English is good enough to read what it actually says, rather than what I think I'd like it to say..

 

[whitelackington]

Quote Graham
"It is perfectly true that just about anything can be challenged in the courts. Why would any caver wish to challenge this when they sure as hell would not be able to challenge the closure of every cave on access land
with a ton or two of readymix the day before the hearing."

According to the Portland cement association, concrete has a density of 1840 to 2320 kg/cubic m so one cubic metre is the (very) rough equivalent of a couple of tons. I am assuming that Peter's figures include delivery, which in my experience they usually do. So this is no biggy really, provided you can get a barrow from the nearest point of access to the place where you want it.

I imagine that if a landowner were to take Graham's advice,
get shutterers in, then have ready mix pumped into a cave entrance,
they would be  behaving illegally, particularly if they did this the day before a court case.

 

[Rhys]

I have a number of issues with the document;

It should have started with words such as "It is the opinion and policy of the BCA that..."

Dave Judson does not give his credentials as an interpreter of law (specifically CROW), he does not indicate whether anyone legally qualified has been involved in creating the document and he does not cite any authoritative source on the legal interpretation that is presented.

Although I don't necesarily think that the policy or opinion is incorrect, it won't make the debate about whether CROW applies to caves or not go away. Unfortunately, BCA have done themselves no favours in releasing this document as it is.

Rhys

 

[graham]

I imagine that if a landowner were to take Graham's advice,
get shutterers in, then have ready mix pumped into a cave entrance,
they would be  behaving illegally, particularly if they did this the day before a court case.

You can imagine all you like, but providing they make due allowance for bats & stuff and assuming that they were not specifically named in the particular case, then, nope, nothing illegal there.

It cannot be stressed enough that cavers have no legal rights to visit caves, except in those few cases where they have specific legal agreements allowing access.

 

[martinr]

Talking of credibility, I've just noticed langcliffe's profile info:

Personal Text: Last seen in a cave in 1967
Gender: Female
Age: 70
Location: Wetwang

?????

Sorry langcliffe. My post  was meant to be humourous. Having read again what I wrote, it doesnt seem so funny now.  :-[

 

[Alex]

I am sick of these bloody posts, I dont know why I keep reading them. I should go and chop my nuts off with a pair of rusty plyers, that would probbably be more productive then these arguments.

come on Pete, wheres your post, they always cheer me up

rapidly loosing the will to live

Alex

 

[Peter Burgess]

I think we should ask Christopher Robin. Whenever Pooh and Piglet had something that troubled them, they always asked Christopher Robin for the answer, then went off to play Poohsticks.

 

[Aubrey]

I should go and chop my nuts off with a pair of rusty plyers,
Alex

Can we all come & watch - could raise some digging fund money by selling tickets 

 

[andys]

I think we should ask Christopher Robin. Whenever Pooh and Piglet had something that troubled them, they always asked Christopher Robin for the answer, then went off to play Poohsticks.

OK, so what does CRoW say with repect to playing Poohsticks on access land? Does BCA have a policy on the subject? Is there a legal precedent that we could refer to? Or should we just toss them in, run to the other side of the bridge, and see who wins!

 

[Peter Burgess]

Poohsticks Bridge is in on a public right of way. But the River Authority might have something to say about chucking stuff into the brook.

 

[whitelackington]

Interesting timing.

Personally, I think that the CRoW Act has long been in dire need of clarification so far as caving is concerned.

I have been told by DEFRA that it would take a High Court judgement to establish whether or not caving is included.

This is also the advice I have been given.

The ideal opportunity to provide a perfect test case may well soon be at hand.

Yes, interesting timing,
are you thinking it might be linked to the Draenen Fiasco?

 

[John S]

Yes, interesting timing,
are you thinking it might be linked to the Draenen Fiasco?

Maybe we should ask if the PDCMG secretary was at the last BCA meeting and asking for this kind of statement.

But the real question should be :-
If the BCA is to promote caving and cavers nationally, why should they be against greater access?
I would like to hear the reasons against inclusion of underground sites in the CRoW.

Think about it, free access to caves and potholes would be quite
inoperable (and dangerous) in many situations including popular sites such as Lancaster Hole,
Gaping Gill, Ogof Fynnon Ddu, Swildons Hole, etc.


Would all these sites be in CroW areas, and what problems would occur and could they easily be overcome? Wouldn't a few busy cave problems be worth it for the greater overall access?