Dartmoor wild camping appeal won
- Thread starter Badlad
- Start date
Judge Vos of the appeal panel said,
“In my judgment, on its true construction, section 10 (1) of the Dartmoor Commons Act 1985 confers on members of the public the right to rest or sleep on the Dartmoor commons, whether by day or night and whether in a tent or otherwise.”
“In my judgment, on its true construction, section 10 (1) of the Dartmoor Commons Act 1985 confers on members of the public the right to rest or sleep on the Dartmoor commons, whether by day or night and whether in a tent or otherwise.”
Stuart France
Active member
The legislation states: "the public shall have a right of access to the [Dartmoor] commons on foot and on horseback for the purpose of open-air recreation"
The judge is in effect saying that the term "open-air recreation" includes being in a tent because the legislative intent was that its scope would be general purpose rather than to be taken literally. It would be interesting to read a transcript of the legal arguments presented in court recently if anyone has access to it. Being in a sleeping bag isn't literally "on foot or on horseback".
In the 1990s horse riding on commons case, the barrister for Defra argued that the phrase "air and exercise" in urban commons legislation meant that a visitor had to get both air AND exercise simultaneously (i.e. the word AND being taken literally) so if the visitor was on horseback it would be only the horse that got the exercise, and the rider got air but no exercise, and so had no right of access. It just goes to show the lengths that the government will go to in order to restrict recreational access rights. The judge ruled against Defra, and said that horse-riding is air and exercise for the rider and so equestrians have a right of access on urban commons.
The Dartmoor judgment is another helpful development for caving resulting from bringing common sense to bear. What a pity then that the BCA JR case was pulled before it got to the stage of having a judge decide if walking across public access land to some cave entrance and then going into the cave is all included in the term "open-air recreation" when the government's central plank in opposing caving on CROW access land is that caving isn't open-air recreation (in their opinion) which leads to the absurd position that walking to cave entrances is lawful but going into the cave then immediately in front of you isn't.
The judge is in effect saying that the term "open-air recreation" includes being in a tent because the legislative intent was that its scope would be general purpose rather than to be taken literally. It would be interesting to read a transcript of the legal arguments presented in court recently if anyone has access to it. Being in a sleeping bag isn't literally "on foot or on horseback".
In the 1990s horse riding on commons case, the barrister for Defra argued that the phrase "air and exercise" in urban commons legislation meant that a visitor had to get both air AND exercise simultaneously (i.e. the word AND being taken literally) so if the visitor was on horseback it would be only the horse that got the exercise, and the rider got air but no exercise, and so had no right of access. It just goes to show the lengths that the government will go to in order to restrict recreational access rights. The judge ruled against Defra, and said that horse-riding is air and exercise for the rider and so equestrians have a right of access on urban commons.
The Dartmoor judgment is another helpful development for caving resulting from bringing common sense to bear. What a pity then that the BCA JR case was pulled before it got to the stage of having a judge decide if walking across public access land to some cave entrance and then going into the cave is all included in the term "open-air recreation" when the government's central plank in opposing caving on CROW access land is that caving isn't open-air recreation (in their opinion) which leads to the absurd position that walking to cave entrances is lawful but going into the cave then immediately in front of you isn't.
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Bob Mehew
Well-known member
I won't respond to your comment about the BCA JR case as I don't have time. But if you have 5 hours available, then you can watch the court presentations at
part 1 https://www.youtube.com/watch?v=tQLNPwHWNQo
and
part 2 https://www.youtube.com/watch?v=DOhpU39GSWE
The judgement is at https://www.bailii.org/ew/cases/EWCA/Civ/2023/927.pdf
(I hope they work, if not search Royal Courts of Justice.)
part 1 https://www.youtube.com/watch?v=tQLNPwHWNQo
and
part 2 https://www.youtube.com/watch?v=DOhpU39GSWE
The judgement is at https://www.bailii.org/ew/cases/EWCA/Civ/2023/927.pdf
(I hope they work, if not search Royal Courts of Justice.)
Unfortunately, as you well know, it was not as simple as that. The judicial review was primarily raised due to the fact that you, as the representative of caving in Wales, had been excluded from the Access Reform Advisory Group. The secondary point, the grounds for exclusion given, were that CRoW did not apply to caving. Despite lengthy and expensive legal action undertaken on your behalf the primary point continued to prevent the secondary point ever getting in front of a judge. After 80k down, and a lot of diligent work by Dave Rose and the team, all the legal advice was to taken the settlement on offer. You didn't agree with it, you made a big fuss, but pretty much everyone else connected with the case knew it was the only realistic course to take.
The Dartmoor case is a positive sign but it doesn't in itself mean that the caving CRoW case would be won, even in front of the same panel. The BCA group you walked away from are still working on it.
Stuart France
Active member
So where did the BCA go wrong? It made some fundamental mistakes including:
1) BCA did not sign up any QC let alone a big name at the outset and was left scrabbling around very late in the day to find someone both available, suitable and keen on the case. Everyone in every kind of business likes near certainties, and vice versa applies too, and everyone serious in business has a full order book most of the time.
2) BCA did not realise the powerful position it had finally reached after jumping all the hurdles thrown in its path by Defra, NRW and WG when a High Court Appeal Judge ordered there must be a full court hearing of the case that would decide the substantive matter of CROW caving.
3) BCA should have approached relevant others if it had reached its own funding limit. The Dartmoor NPA initially asked Defra for legal funding to defend public access: please don’t laugh out loud at this point. Then OSS joined the case as an Interested Party and the Dartmoor Preservation Association crowd-funded public donations which would finance the case on contingency. And what did BCA do for money? Nothing except run for the hills.
4) BCA entered into a so-called compromise agreement with Welsh Government to end the case without a hearing. The deal was that WG would “review cave access" but without any commitment to do anything positive for us thereafter. Rather a silly compromise in my view.
Compare that to JR case that Nig Rogers and I funded in 2016 concerning what we understood to be the consideration of the granting of a bat licence by a notorious public body to permit a notorious cave management group to concrete a cave entrance on urban common land on behalf of its landowner in order to prevent future caver access, which we suggested was contrary to legislation providing for “air and exercise” on urban common land and thus unlawful. This case never went to court because the public body agreed to back off and never to issue any such licence and the cave in question is still wide open today. The cave management group is still notorious, but moribund, and the quango is widely unloved, as I see things.
So what’s the difference?
1) Nig and I straight away engaged the big-name but fingers-burned QC who had represented Defra when Defra LOST the case concerning horse riding rights on urban commons. Defra’s arguments included that horse riding is NOT “air and exercise” as required by access legislation for the reason that the rider gets air only while the horse gets both air and exercise, but the right of access [when taken literally] is that the rider must get both air and exercise at the same time. Folks, this is the kind of heady cocktail that High Court cases involving quangos and the government are made of.
2) Our opposite numbers were never ever left a moment’s doubt that they would have to appear in court if they did not concede the matter.
I’ll discuss Dartmoor in more detail another time. Its aftermath is fascinating and full of irony.
1) BCA did not sign up any QC let alone a big name at the outset and was left scrabbling around very late in the day to find someone both available, suitable and keen on the case. Everyone in every kind of business likes near certainties, and vice versa applies too, and everyone serious in business has a full order book most of the time.
2) BCA did not realise the powerful position it had finally reached after jumping all the hurdles thrown in its path by Defra, NRW and WG when a High Court Appeal Judge ordered there must be a full court hearing of the case that would decide the substantive matter of CROW caving.
3) BCA should have approached relevant others if it had reached its own funding limit. The Dartmoor NPA initially asked Defra for legal funding to defend public access: please don’t laugh out loud at this point. Then OSS joined the case as an Interested Party and the Dartmoor Preservation Association crowd-funded public donations which would finance the case on contingency. And what did BCA do for money? Nothing except run for the hills.
4) BCA entered into a so-called compromise agreement with Welsh Government to end the case without a hearing. The deal was that WG would “review cave access" but without any commitment to do anything positive for us thereafter. Rather a silly compromise in my view.
Compare that to JR case that Nig Rogers and I funded in 2016 concerning what we understood to be the consideration of the granting of a bat licence by a notorious public body to permit a notorious cave management group to concrete a cave entrance on urban common land on behalf of its landowner in order to prevent future caver access, which we suggested was contrary to legislation providing for “air and exercise” on urban common land and thus unlawful. This case never went to court because the public body agreed to back off and never to issue any such licence and the cave in question is still wide open today. The cave management group is still notorious, but moribund, and the quango is widely unloved, as I see things.
So what’s the difference?
1) Nig and I straight away engaged the big-name but fingers-burned QC who had represented Defra when Defra LOST the case concerning horse riding rights on urban commons. Defra’s arguments included that horse riding is NOT “air and exercise” as required by access legislation for the reason that the rider gets air only while the horse gets both air and exercise, but the right of access [when taken literally] is that the rider must get both air and exercise at the same time. Folks, this is the kind of heady cocktail that High Court cases involving quangos and the government are made of.
2) Our opposite numbers were never ever left a moment’s doubt that they would have to appear in court if they did not concede the matter.
I’ll discuss Dartmoor in more detail another time. Its aftermath is fascinating and full of irony.
I would suggest that no court should be trying to rewrite CRoW, that is the job of parliament. When you do it via an amendment to the act, after suitable consultation, there will be no dispute.
It’s pretty clear what the intent was as not just caving was excluded in England. It’s just for walking (ie the Ramblers Charter). It’s just that caving was so inconsequential and unnoticed it wasn’t actually mentioned in CRoW. You can ponder why it wasn’t even officially excluded, it was that bad.
It’s pretty clear what the intent was as not just caving was excluded in England. It’s just for walking (ie the Ramblers Charter). It’s just that caving was so inconsequential and unnoticed it wasn’t actually mentioned in CRoW. You can ponder why it wasn’t even officially excluded, it was that bad.
andrewmcleod
Well-known member
Climbing isn't mentioned either, yet it is generally agreed to be included. Why climbing but not caving?
It's definitely not just for walking. If it was, it would say that.
It's not at all clear where caving sits. It _is_ the job of courts to interpret legislation.
Stuart France
Active member
Folks, some of you misunderstand how statute generally operates: everything is allowed unless it is explicitly forbidden. CROW isn't just for walkers - walking is not even mentioned in CROW. There is no list of 'allowed' activites. Everything is allowed within the umbrella term "open-air recreation" unless it is on the forbidden list at Schedule 2.
Some things are explicitly forbidden there, such as swimming (called "bathing" in the Act) or paddle sports (called a "vessel on ... water" in the Act), horse riding (styled as "has with him any animal other than a dog" in the Act), cycling (via "drives or rides any vehicle other than an invalid carriage") and so on. Caving is not explicitly prohibited in Schedule 2, nor are underground or above-ground areas prohibited as a class.
The Shadow Secretary for the Environment has recently been on a fact-finding visit to Dartmoor. The next Labour government could review CROW Schedule 2, for example delete all of its section 1(s) which would then open up the hills for organised fell races and outdoors mountain marathons, allow camping in remote areas, hang-gliding and para-gliding. The cave access issue, by contrast, revolves around the unhelpful interpretation of "open-air" used by Defra and its friends. So that can be dealt with by apeing Scotland, by extending section 1(2) to say clearly what "access land" is, so as to put caving, rock climbing and hang-gliding sports beyond the reach of Defra and similar combatants.
All we need to argue for is a definition of "access land" being placed after the final definition that is given for "open country" in section 1(2). It could read as follows: "access land" means the land surface and anything above or below the land surface.
Lobby your local Labour candidate. Vote Labour. After all, they got the original CROW Act into law after decades of faffing about, including the attempt by Mrs Thatcher in the 1980s to create something akin to CROW.
Some things are explicitly forbidden there, such as swimming (called "bathing" in the Act) or paddle sports (called a "vessel on ... water" in the Act), horse riding (styled as "has with him any animal other than a dog" in the Act), cycling (via "drives or rides any vehicle other than an invalid carriage") and so on. Caving is not explicitly prohibited in Schedule 2, nor are underground or above-ground areas prohibited as a class.
The Shadow Secretary for the Environment has recently been on a fact-finding visit to Dartmoor. The next Labour government could review CROW Schedule 2, for example delete all of its section 1(s) which would then open up the hills for organised fell races and outdoors mountain marathons, allow camping in remote areas, hang-gliding and para-gliding. The cave access issue, by contrast, revolves around the unhelpful interpretation of "open-air" used by Defra and its friends. So that can be dealt with by apeing Scotland, by extending section 1(2) to say clearly what "access land" is, so as to put caving, rock climbing and hang-gliding sports beyond the reach of Defra and similar combatants.
All we need to argue for is a definition of "access land" being placed after the final definition that is given for "open country" in section 1(2). It could read as follows: "access land" means the land surface and anything above or below the land surface.
Lobby your local Labour candidate. Vote Labour. After all, they got the original CROW Act into law after decades of faffing about, including the attempt by Mrs Thatcher in the 1980s to create something akin to CROW.
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US statute works like that, UK isn't quite the same, where it's seen to be whether the action was in the spirit of the law, but we are moving more along US lines, as people try to push the bounds of what's acceptably within the law.
Climbing wasn't mentioned initially, but BMC campaigned for it to be included & was accepted, so Government guidance now says:
Climbing wasn't mentioned initially, but BMC campaigned for it to be included & was accepted, so Government guidance now says:
Caving is in the strange position that their suggested interpretation means you can enter up to the limit of daylight. But if you do go further then all the landowner can do is ask you to leave by the shortest possible route & as long as you don't cause damage or are aggressive the police won't get involved.
langcliffe
Well-known member
Guidelines do not necessarily reflect the legal situation.
Climbing was deemed to be steep walking. BMC was on the job.
WRT to caving, what is clear is that civil servants didn’t know it existed as a thing. And it’s still roughly on a par with zorbing. Unfortunately there are many other actors who will have an opinion on cave and mine access, not the least of which are certain environmental groups and quangos who think cavers are a menace and they have way more credibility in many official circles. Personally I think the only way to change things is to piggy-back on people like canoeists and swimmers as part of a populist surge and hope no-one notices in time. Caving on it’s own is toast.
Are there many examples of cavers being denied access to caves under Access Land? Since caving is not excluded in Schedule 2, and is "open-air" in the sense that it's not in a building, now reinforced by tents being open-air, is it not reasonable to expect that it's permitted?
Although some landowners, and DEFRA, disagree, on the basis of historical law British Canoeing "believes that there is a strong case to demonstrate an existing public right of navigation (PRN) on all navigable rivers." and therefore suggests that paddlers should be able to use natural rivers provided they respect other interests (my summarising). While campaigning for Parliament to change the law, BC have not gone to court. So far as I'm aware no paddlers following this advice have been subject to legal action; in a majority of cases, people now go paddling and are not prevented from doing so. The danger with going to court, as Darwell has found out, is that the decision may go against you.
I appreciate that the positions of caving and paddling are not exactly parallel, but unless there are issues I'm unaware of, I would favour hoping for a change of government and a widening of the scope of CROW, rather than legal action.
andrewmcleod
Well-known member
My point was that neither caving not climbing are mentioned in the Act. Theoretically someone could challenge the right to climb in court over CROW (albeit I rather suspect it would fail). Guidance is not the law, just the current understanding of the interpretation of the law.
Therefore your argument that caving is excluded because it isn't in the Act is arguably erroneous.
Tents are only allowed on the Dartmoor Commons because of the local bylaws, not CRoW. Caving has been deemed by some to be not in the open air - they aren't precisely analogous.
For canoeing there is also a similar debate about what constitutes navigable, as historic craft would not have survived some of the rivers that are regularly paddled nowadays.
For canoeing there is also a similar debate about what constitutes navigable, as historic craft would not have survived some of the rivers that are regularly paddled nowadays.
I think people need to think very carefully about allowing tents anywhere in a National Park. Be realistic about what would happen. The Parks in England are quite small, mostly not very wild at all, and we have nearly 70 million people. Most people with a tent are going to camp out of a car and set up a BBQ etc, in some places in very large numbers where it is accessible. There are no toilet facilities, so you get what you expect. That’s why we have campsites.
Hence Loch Lomond camping ban now after people abused the shores during covid. Rules are quite clear about not being alongside roads, but ignored by majority. The same with dogs, short leads are required during bird nesting season & anytime near livestock, but try telling that to some owners...
