Discussion on the post "The effect of changes in liability for Landowners under"

[Bottlebank]

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.

Yes, exactly so - the landowner would be liable for any cave opened by digging and not covered by the CROW legislation.

I think there are several separate issues here clouding this.

Does the landowner have liability in the following situations:

1. Caves that are already open - yes at the moment and probably not under CRoW

Will all caves that have been dug open prior to CRoW applying be treated as a natural feature, if not then:

2. Caves that have been previously dug open - does the landowner still have liability for the dug section under CRoW - I think yes but needs checking
3. Caves that have been previously dug open - does the landowner still have liability for the cave beyond the dug section under CRoW - needs checking - as Bob says the dig may be considered an entrance - but then again it may not

Then we have:

4. Digs started pre CRoW and not concluded prior to CRoW - yes
5. Digs started post CRoW - yes

And...

6. Caves that are dug open post CRoW - again does the landowner have liability for the cave beyond the dug section - possibly but needs checking - as 3.
7. Does all of this depend on the nature of the dig - i.e. if a few boulders were simply moved aside is this different to a blasted and shored shaft?

Should the BCA be getting legal advice on this sort of thing - in my view probably yes, and it should be published prior to the referendum.

Tony

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. 

Bob,

Would it be fair to rephrase that as you saying you suspect in certain circumstances the courts will not consider dug entrances to be simply a means of access? If so I think I'd agree.

All that said the main concern I have is that post CRoW landowners are more likely to refuse to accept liability for digs, more likely to consult their legal and insurance advisers (legal advice is free of charge to members of the CLA) and no solicitor worth his salt is going to advise his client to accept liability when there is no real benefit to him, and no need to do so. Diggers and professional cavers will almost certainly find it more difficult to get permissions.

At the same time it seems possible we'll have a drawn out Angler/Canoeist scenario which will make things even worse.

All of this to get easier access to a few areas and access to a handful of caves currently closed.

Tony

 

[bograt]

There are more situations to consider;

1. At the moment the landowner is responsible, hence liable, for everything under his land, including cave passage, if caves are incuded in the act, this liability will be lifted.

2. If a dig goes into an existing system (Garden Path, Titan etc.) it could be considered an alternative entrance and may carry different rulings to one that breaks into a completely new system.

3. If a farmer puts down hardcore in a gate entrance on CRoW land to improve access, then a rambler twists his ankle on that hardcore, who is liable?


I do wish people would stop comparing our situation to that of the anglers/canoeists, that controversy is between two bodies vying for the same resource and has no comparison with our case.

 

[Bottlebank]

I do wish people would stop comparing our situation to that of the anglers/canoeists, that controversy is between two bodies vying for the same resource and has no comparison with our case.

Fair enough, at the same if we're unlucky we'll beginning a long, heavily contested campaign which may last many years and lead to loss of access, do huge damage to landowner/caver relations and everything will be a right mess!

All of this to get easier access to a few areas and access to a handful of caves currently closed.

 

[graham]

All of this to get slightly easier access to a few areas and possible access to a handful of caves currently closed.

Fixed that for you.

 

[graham]

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.

None of which indicates that the entrance itself is indicated as a natural feature.

 

[Bottlebank]

All of this to get slightly easier access to a few areas and possible access to a handful of caves currently closed.

Fixed that for you.

Much better

It might be interesting to put up a poll on here to see if we can tease out an idea of how people might vote?

 

[bograt]

[Fair enough, at the same if we're unlucky we'll beginning a long, heavily contested campaign

Err, Excuse me, But as I understand it the vote is whether to continue with this approach, if the vote is no, then BCA will look for alternatives, they will not 'contest heavily', cavers are not like that!!!!

 

[martinm]

I do wish people would stop comparing our situation to that of the anglers/canoeists, that controversy is between two bodies vying for the same resource and has no comparison with our case.

Fair enough, at the same if we're unlucky we'll beginning a long, heavily contested campaign which may last many years and lead to loss of access, do huge damage to landowner/caver relations and everything will be a right mess!

All of this to get easier access to a few areas and access to a handful of caves currently closed.

With  all due respect Tony, that is is ridiculous.  Nobody  will be doing any 'heavily contested campaigns'..  It  will be done  (negotiated) with respect and  in consultation with the  landowners through the  regional councils  and their  officers.

There may be the odd 'loose cannon' if  you know what I mean, but  the vast majoriity of landowners / tenants / estates will only now deal with  with officially recognised people from  bodies such as the regional  councils or BCA, the  national caving  organisation, representing us and which includes  some very  experienced  and respected cavers.

 

[bograt]

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.

None of which indicates that the entrance itself is indicated as a natural feature.

These facts were intended as an explanation to the reason for the boundary, you have turned it into a political issue, maybe you should provide us with some FACTS?????

 

[graham]

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.

None of which indicates that the entrance itself is indicated as a natural feature.

These facts were intended as an explanation to the reason for the boundary, you have turned it into a political issue, maybe you should provide us with some FACTS?????

I'm not turning into a political issue I'm asking you to give some facts to back up this post:

]

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.

So, in this instance at least, NE consider an excavated entrance on SSSI and CRoW to be a natural feature?
We have a precedent.

Where you stated an opinion and then scuttled away, despite my asking you to back up this opinion with a citation from NE.

 

[caving_fox]

Should the BCA be getting legal advice on this sort of thing - in my view probably yes, and it should be published prior to the referendum.

The referendum isn't on whether CROW applies to caving. It is on whether the BCA should investigate whether CROW applies to caving and implications that might have.

There's no point in the BCA doing vast amounts of legal research if the majority of cavers turn round and say no we're happy with the status quo. That there are potential issues with liability - sure that needs to be raised as something to bear in mind, as one of the issues the BCA will have to investigate.

 

[Bottlebank]

[Fair enough, at the same if we're unlucky we'll beginning a long, heavily contested campaign

Err, Excuse me, But as I understand it the vote is whether to continue with this approach, if the vote is no, then BCA will look for alternatives, they will not 'contest heavily', cavers are not like that!!!!

Damian Weare has stated that the referendum question is:

"1) The question will be: "Should BCA, on your behalf, campaign for The Countryside and Rights of Way Act (2000) to apply to going underground?" The options will be "yes" or "no"."

We'll only find out if there will be a contested campaign if the answer is "yes" and Defra stick to their view that caving is not covered. It's at that point some landowners may decide to contest this.

Defra may change their view straight away, or we may be campaigning for years - no one knows.

I do wish people would stop comparing our situation to that of the anglers/canoeists, that controversy is between two bodies vying for the same resource and has no comparison with our case.

Fair enough, at the same if we're unlucky we'll beginning a long, heavily contested campaign which may last many years and lead to loss of access, do huge damage to landowner/caver relations and everything will be a right mess!

All of this to get easier access to a few areas and access to a handful of caves currently closed.

With  all due respect Tony, that is is ridiculous.  Nobody  will be doing any 'heavily contested campaigns'..  It  will be done  (negotiated) with respect and  in consultation with the  landowners through the  regional councils  and their  officers.

There may be the odd 'loose cannon' if  you know what I mean, but  the vast majoriity of landowners / tenants / estates will only now deal with  with officially recognised people from  bodies such as the regional  councils or BCA, the  national caving  organisation, representing us and which includes  some very  experienced  and respected cavers.

Mel,

See above, I think you've missed the point.

You seem to be detailing what would happen if Defra change their view. Actually you're describing the largely sensible process that goes on now. Telling a landowner his access agreement is toast and no longer applies isn't really negotiation at all.

 

[graham]

Good post, Bottlebank. 

 

[martinm]

Mel,

See above, I think you've missed the point.

You seem to be detailing what would happen if Defra change their view. Actually you're describing the largely sensible process that goes on now. Telling a landowner his access agreement is toast and no longer applies isn't really negotiation at all.

No, I think u r missing the point. No-one who is involved in C&A in any of the regional councils or BCA will go to a landowner and say your "access agreement is toast and no longer applies". They will continue to do what they do now and negotiate amicably and sensibly with said landowner! Most big landowners will only deal with 'officials' of those organisations, though that doesn't preclude individuals  negotiating agreements for access, digs, etc. In most places, nothing will change. Certainly not in the Peak. 

 

[graham]

Mel,

See above, I think you've missed the point.

You seem to be detailing what would happen if Defra change their view. Actually you're describing the largely sensible process that goes on now. Telling a landowner his access agreement is toast and no longer applies isn't really negotiation at all.

No, I think u r missing the point. No-one who is involved in C&A in any of the regional councils or BCA will go to a landowner and say your "access agreement is toast and no longer applies". They will continue to do what they do now and negotiate amicably and sensibly with said landowner! 

I am willing to wager that you are wrong about that.

 

[Bottlebank]

Mel,

See above, I think you've missed the point.

You seem to be detailing what would happen if Defra change their view. Actually you're describing the largely sensible process that goes on now. Telling a landowner his access agreement is toast and no longer applies isn't really negotiation at all.

No, I think u r missing the point. No-one who is involved in C&A in any of the regional councils or BCA will go to a landowner and say your "access agreement is toast and no longer applies". They will continue to do what they do now and negotiate amicably and sensibly with said landowner! 

Negotiate what? Unless they are trying to get a cave closed or gated there's little to negotiate. The regional councils will only control access on non CRoW land. They'll have no control any more over everyday access on CRoW land.

It's the pro CRoW lobby that want to tear up access agreements, not me.

The point I suggested you missed was what I meant by the campaign, which I clarified in my answer to Bograt.

 

[TheBitterEnd]

It's the pro CRoW lobby that want to tear up access agreements, not me.

No, no reasonable person in the CRoW applies camp wants to "tear up access agreements". "CRoW applies" prevents the landowners tearing up the access agreements and affording cavers little more rights than dogs.

If, for conservation or other reasons there was a reasonable access agreement, even on CRoW land, then those cavers who currently abide by access agreements would do so, pro-CRoW or not.

Let's not forget (and a trawl back through this forum and Descent will provide the facts) under the current system a handful of people ignore access agreements, cut locks of gates, damage stal and generally act like idiots. But most people act responsibly, THIS WILL NOT CHANGE under a "CRoW applies" system. There will still be a few idiots and a vast majority of responsible cavers

 

[martinm]

It's the pro CRoW lobby that want to tear up access agreements, not me.

No, no reasonable person in the CRoW applies camp wants to "tear up access agreements". "CRoW applies" prevents the landowners tearing up the access agreements and affording cavers little more rights than dogs.

If, for conservation or other reasons there was a reasonable access agreement, even on CRoW land, then those cavers who currently abide by access agreements would do so, pro-CRoW or not.

Let's not forget (and a trawl back through this forum and Descent will provide the facts) under the current system a handful of people ignore access agreements, cut locks of gates, damage stal and generally act like idiots. But most people act responsibly, THIS WILL NOT CHANGE under a "CRoW applies" system. There will still be a few idiots and a vast majority of responsible cavers

Spot on, TheBitterEnd,  esp. the last sentence. Most of us are responsible, but as you say "There will still be a few idiots" This CRoW business won't change that.

Giants Hole isn't on access land, but an out of the way chamber in the upper series got trashed a few years ago by persons unknown...

If there are access restrictions on caves at the moment, it isn't a matter of how long it will take to restore them, they are there already. It's just a matter of just a matter of justifying those restrictions. If there is already an access agreement in place, then people have already got access. No problem.

 

[graham]

No, no reasonable person in the CRoW applies camp wants to "tear up access agreements".

In that case there must be a lot of unreasonable people in that camp, as that is exactly the effect that their campaign would have were it to be successful.

 

[graham]

If there are access restrictions on caves at the moment, it isn't a matter of how long it will take to restore them, they are there already. It's just a matter of just a matter of justifying those restrictions. If there is already an access agreement in place, then people have already got access. No problem.

Still missing the point, Mel. If TBE's "unreasonable people" get their way then cave access agreements on access land aren't worth anything, unless you can get someone to impose something like a section 26 notice.

Can you do that?

Do you know what the relevant criteria might be?

Do you know how long the process might take?