Discussion on the post "The effect of changes in liability for Landowners under"
- Thread starter paul
- Start date
Mark Wright
Active member
If the landowner has given permission (or not for that matter) then they will be ultimately liable for the cave dig. The liability is reduced by taking suitable and sufficient steps to remove the hazard with the installation and subsequent maintenance of a suitable and appropriate fence. If the diggers are doing their bit for landowner/caver relations they could take responsibility for the costs and erection and maintenance of the fence unless of course the landowner is a generous one or the local regional council has funds put aside for this.
I'm not suggesting that the dig 'reverts to being a natural feature', I'm suggesting (in most cases) its always been a natural feature. At some point in the past the sediments weren't there but it would still have been a natural feature. There are many cave entrances that have been heavily worn over the years by the passage of caving ropes cutting large grooves into the natural limestone feature. Does that mean those entrances are no longer wholly natural features?
Is 'Wholly Natural Feature' a term introduced to cause more confusion? Where did it come from?
Mark
I'm not suggesting that the dig 'reverts to being a natural feature', I'm suggesting (in most cases) its always been a natural feature. At some point in the past the sediments weren't there but it would still have been a natural feature. There are many cave entrances that have been heavily worn over the years by the passage of caving ropes cutting large grooves into the natural limestone feature. Does that mean those entrances are no longer wholly natural features?
Is 'Wholly Natural Feature' a term introduced to cause more confusion? Where did it come from?
Mark
martinm
New member
bograt said:
yep, indeed it is. Don't think upper entrance is though. (just outside I think.) Jenny recently sent me an email about this, maybe to you too. can't remember atm. Too tired to check, am going bed now, will check tmrw. bysies.
(Just hope the neighbours keep quiet now, grrr.)
Aubrey
Member
Mark Wright said:
If the dig is successful and vast natural cave passages are found somewhere below, the site is still a dig with landowner liability and therefore there is not open access under CROW.
Are you suggesting there is some point when this changes? If so where is that defined?
tony from suffolk
Well-known member
If caves are to be regarded as CRoW, then by digging into them you're creating access to that facility. And I doubt if there are many "Wholly Natural" features in the UK.
graham
New member
Mark Wright said:
None of which has anything to do with CRoW. What you are describing, as both Bottlebank and Aubrey have alluded to in the past is the situation as it is now. You seem to be agreeing that this liability will not change should CRoW be made to apply to caves.
Mark Wright said:
"At some point in the past the sediments weren't there." At an earlier point the rock wasn't there, either. When do you want to draw the line?
Mark Wright said:
Probably from me, in an attempt to cause less confusion. Seemingly unsuccessfully. The point was to try to point up the vast grey area between entrances such as Porth yr Ogof or Rowten Pot which are pretty damned natural and ones such as Manor Farm Swallet and Titan which are anything but.
It would be my guess that it was the complex nature of such issues that inclined DEFRA not to include caves in CRoW in the first place.
graham
New member
mmilner said:bograt said:
yep, indeed it is. Don't think upper entrance is though. (just outside I think.) Jenny recently sent me an email about this, maybe to you too. can't remember atm. Too tired to check, am going bed now, will check tmrw. bysies.
Mel
I checked the position of Garden Path a while ago & the entrance did seem to be well within the shaded entrance indicating access land on their map.
Edit: Yup just checked again. Assuming the grid reference SK 16508 65982 is correct then Garden Path is on access land. I got that NGR from this page.
al
Member
Not sure what Garden Path has to do with this discussion at all.
Yes it was excavated, but it doesn't constitute a danger to the public as it is locked.
Mind you, I'm surprised where the brown Crow access line is drawn here, as Garden Path is obviously in pasture - I suppose it's to do with the walls and other boundaries.
Yes it was excavated, but it doesn't constitute a danger to the public as it is locked.
Mind you, I'm surprised where the brown Crow access line is drawn here, as Garden Path is obviously in pasture - I suppose it's to do with the walls and other boundaries.
Bob Mehew
Well-known member
Apologies for the delay in response but my weekend was wiped out by a family emergency and am just recovering from the aftermath.
Re natural feature.
Sec 13 which amends the Occupiers Liability Acts states:
6(A) ...an occupier of the land owes (subject to subsection (6C) below) no duty by virtue of this section to any person in respect of?
(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, or
(b) a risk of that person suffering injury when passing over, under or through any wall, fence or gate, except by proper use of the gate or of a stile.
(6B) For the purposes of subsection (6A) above, any plant, shrub or tree, of whatever origin, is to be regarded as a natural feature of the landscape.
(6C) Subsection (6A) does not prevent an occupier from owing a duty by virtue of this section in respect of any risk where the danger concerned is due to anything done by the occupier?
(a) with the intention of creating that risk, or
(b) being reckless as to whether that risk is created.?
Re CRoW applying to dug entrances, I claim dug entrances are a means of access, see http://ukcaving.com/board/index.php?topic=17137.msg225933#msg225933 but I fear only the courts will resolve this question which will depend upon the specific case.
Re land owner liability re digs, my line of thinking is that it will depend upon what was agreed between the diggers and the land owner. (And that could be either a verbal or written agreement.) If the diggers agreed to fence the dig, then the state of the fence is the diggers liability and more importantly, their continued responsibility for keeping it in a satisfactory condition until they die or end the agreement. My expectation is that under most casual agreements, one might consider the diggers as 'occupiers'. (After all they are depriving the land owner his normal right of use of that patch of land.) And as a consequence, the SSSI PDO would apply to the diggers, as well as the land owner since W&C Sec 28E does say "The owner or occupier". I am not sure if the diggers acting as a contractor would materially change this situation, though it would bring in other legal demands, notably H&S. If no agreement was obtained, then the diggers could be construed as squatters and hence occupiers. However following the squat / dig, I think the liability would then fall back onto the land owner for not removing the risk from the dig (who could then sue the diggers for the expense in doing so).
Re natural feature.
Sec 13 which amends the Occupiers Liability Acts states:
6(A) ...an occupier of the land owes (subject to subsection (6C) below) no duty by virtue of this section to any person in respect of?
(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, or
(b) a risk of that person suffering injury when passing over, under or through any wall, fence or gate, except by proper use of the gate or of a stile.
(6B) For the purposes of subsection (6A) above, any plant, shrub or tree, of whatever origin, is to be regarded as a natural feature of the landscape.
(6C) Subsection (6A) does not prevent an occupier from owing a duty by virtue of this section in respect of any risk where the danger concerned is due to anything done by the occupier?
(a) with the intention of creating that risk, or
(b) being reckless as to whether that risk is created.?
Re CRoW applying to dug entrances, I claim dug entrances are a means of access, see http://ukcaving.com/board/index.php?topic=17137.msg225933#msg225933 but I fear only the courts will resolve this question which will depend upon the specific case.
Re land owner liability re digs, my line of thinking is that it will depend upon what was agreed between the diggers and the land owner. (And that could be either a verbal or written agreement.) If the diggers agreed to fence the dig, then the state of the fence is the diggers liability and more importantly, their continued responsibility for keeping it in a satisfactory condition until they die or end the agreement. My expectation is that under most casual agreements, one might consider the diggers as 'occupiers'. (After all they are depriving the land owner his normal right of use of that patch of land.) And as a consequence, the SSSI PDO would apply to the diggers, as well as the land owner since W&C Sec 28E does say "The owner or occupier". I am not sure if the diggers acting as a contractor would materially change this situation, though it would bring in other legal demands, notably H&S. If no agreement was obtained, then the diggers could be construed as squatters and hence occupiers. However following the squat / dig, I think the liability would then fall back onto the land owner for not removing the risk from the dig (who could then sue the diggers for the expense in doing so).
bograt
Active member
graham said:
Maybe because even a 'proper lawyer''s decision will only be poo-poo'ed as another opinion, as Bob and others have said; ' I fear only the courts will resolve this question which will depend upon the specific case.'
al said:
The area is designated NNR SSSI on two counts ; 'Earth Heritage' i.e. the caves, and 'Calcerous Grassland' i.e. the plantlife. When drawing up the CRoW map, they used the NNR boundary.
Aubrey
Member
Bob quotes the following from the CROW legislation:
6(A) ...an occupier of the land owes (subject to subsection (6C) below) no duty by virtue of this section to any person in respect of?
(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, or
(b) a risk of that person suffering injury when passing over, under or through any wall, fence or gate, except by proper use of the gate or of a stile.
All of that was written without any consideration of many cave entrances.
It is wishful thinking that these paragraphs could encompass any but naturally open caves, whether or not they have a gate fitted.
Just imaging the reaction in a court of law if someone was suggesting a shaft dug using explosives and supported with scaffolding and pipes was a natural feature.
The legal position needs to be clarified !!
6(A) ...an occupier of the land owes (subject to subsection (6C) below) no duty by virtue of this section to any person in respect of?
(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, or
(b) a risk of that person suffering injury when passing over, under or through any wall, fence or gate, except by proper use of the gate or of a stile.
All of that was written without any consideration of many cave entrances.
It is wishful thinking that these paragraphs could encompass any but naturally open caves, whether or not they have a gate fitted.
Just imaging the reaction in a court of law if someone was suggesting a shaft dug using explosives and supported with scaffolding and pipes was a natural feature.
The legal position needs to be clarified !!
Peter Burgess
New member
Stepping back from the detail, is not liability simply related to something a person has done or built, which differentiates "natural" from "not natural". So any alteration to anything that would otherwise be considered "undisturbed" involves a degree of liability.
