Is it Lawful...?

[Hammy]

...to go Caving on Leck and Casterton Fells Without a Valid Permit?

I know it might seem a bit late in the day to be asking this but I've had a good look around the forum and elsewhere and can't find a direct answer to this question.

Maybe someone better informed than myself can find a link if its been discussed before.

I can find some interpretation of this but it would be interesting to see what the general consensus is first.

Just to clarify I am referring to ordinary sport and recreational caving - not digging, altering watercourses or commercial operations.

And I am referring to English law not BCA or CNCC law!

 

[underground]

Is it access land?

 

[Stu]

Is it access land?

Yes.... if you like walking to cave entrances.

 

[Stu]

The answer is, it's neither legal or illegal. It doesn't get a mention in CRoW either as a permitted activity or an excluded activity. You can't fly a model aircraft or kite as to cause offence though....

Always intrigued me as why that very specific piece got in, but the desire to legally walk to a cave, go underground and cause no offence or disruption to anyone, got left out. It's almost like someone couldn't be bothered to bring it up.

 

[cavermark]

This site gives maps that show what is designated access land.
http://magic.defra.gov.uk/
I'm not sure where you find out about restrictions or "closed" periods for shooting/lambing.

As Stu says, CROW only covers the legality of walking on access land. The legality of going underground on access land is a grey area....

 

[RobinGriffiths]

'Most recreational activities carried out by foot' apparently.

 

[underground]

Hmmm...

 

[Brains]

So... On access land I can legally walk to an entrance with all my kit, but if I then go underground this is into a grey area requiring clarification. Seems ideal for a test case

 

[graham]

Leaving aside, for the moment, the fascinating problems surrounding the CNCC, where's your problem? Which caves can you not go down?

 

[dunc]

That would be almost all of them if he's not in a club and only a DIM..


As for the comment on closed seasons, that only applies to cavers, the fells are open all year, apart from a possible 28 days (at least that's what it used to be) where a landowner can close the land for say land management etc.

 

[Stu]

Brains - yes.  And although myself and Graham have differeing views on this (you've probably guessed my side), this was done to death recently. I'll try to find the thread if someone doesn't beat me to it.

The result seems to be that BCA are "looking into the pushing for more access" though in the Dales the CNCC control that.

We'll see...


Sent from my GT-I9100 using Tapatalk

 

[graham]

That would be almost all of them if he's not in a club and only a DIM..

I'm not aware of a single cave on Mendip which he couldn't go down for that reason. I did specifically rule out the 'whole CNCC thing'.

I acknowledge that the question was about two bits of Yorkshire, rather than anywhere else, but the question is being answered by others in the context of CRoW which applies more widely than just those fells. I would suggest that as caving is not a permitted activity under that act, then - given that there is a widely known and understood access agreement in place - although not a criminal activity, a civil case for trespass might be brought. I am, here, ignoring the possibility of damage and thus criminal trespass as being a rather different matter.

Now, it may be that someone does feel it appropriate to test this out and get themselves sued for trespass, just to see how the courts would actually treat them. That's fine, if they can afford the legal fees (no legal aid in civil cases - sod all for anyone under the tories, mind) and if they want to give the landowners an excuse for revoking the access agreements that do exist, which is probably cheaper than taking the case to law from their point of view.

Any volunteers to go down in caving legend as the person who got access to the caves blocked for everybody?

 

[Ian Adams]

Wonderful post of usual stuff Graham 

CRoW was mentioned as a moot means to access the caves on the Fell lawfully -not to drag Mendips and the rest of the country into the question.

The "widely known and understood access agreement" is not widely known or understood by non-BCA members (who would have no choice but to approach landowners) and does not allow access for DIMs and is currently the subject of (let's say) "debate" on another thread. Furthermore, this "access arrangement" and the control thereof appears to be pivotal to a move to depose the incumbent CNCC officers. Not an entirely accurate statement you made there.

The "Tories" have very little to do with the access arrangements for caves and I am not entirely sure the UK governmental politics are the rightly placed to be discussed here.

And, as for a test case .... there would be no costs if you were representing yourself and, quite possibly, no order for costs against you even if you lost.

Seems odd, in any event, that the landowners (CRoW land) don't avail themselves of the "free" liability insurance afforded to them by the UK Government for people exercising their right to use the land for CRoW and, instead, rely on the BCA insurance.

Lawful access is indeterminate until there is legislative clarification or a test case and as already mentioned by others - this has been "done to death" on here already.



Ian

 

[NigR]

Now, it may be that someone does feel it appropriate to test this out and get themselves sued for trespass, just to see how the courts would actually treat them. That's fine, if they can afford the legal fees (no legal aid in civil cases - sod all for anyone under the tories, mind) and if they want to give the landowners an excuse for revoking the access agreements that do exist, which is probably cheaper than taking the case to law from their point of view.

Any volunteers to go down in caving legend as the person who got access to the caves blocked for everybody?

There would appear to be lots of willing volunteers. Otherwise, why are there so many people caving on Leck and Casterton Fells without valid permits each and every weekend of the year?

The current system does not work, has not worked for a long time and will not be made to work by attempting to use scare tactics such as this.

 

[Stu]

Guys, undoubtedly you all know my position on this (if not I'll see you at the revolution brothers and sisters), but since the BCA seem to have at least acknowledged that they're to look into it (Jenny?) any chance this can get left...? 

 

[graham]

Wonderful post of usual stuff Graham 

Facts don't change just 'cos you want them to.

CRoW was mentioned as a moot means to access the caves on the Fell lawfully -not to drag Mendips and the rest of the country into the question.

The law isn't different in Yorkshire, either.

The "widely known and understood access agreement" is not widely known or understood by non-BCA members (who would have no choice but to approach landowners) and does not allow access for DIMs and is currently the subject of (let's say) "debate" on another thread. Furthermore, this "access arrangement" and the control thereof appears to be pivotal to a move to depose the incumbent CNCC officers. Not an entirely accurate statement you made there.

I'd be rather surprised to learn that there are cavers who are unaware of the nature of the agreement, even if they are not party to it. I don't think there was anything innaccurate in what I said.

The "Tories" have very little to do with the access arrangements for caves and I am not entirely sure the UK governmental politics are the rightly placed to be discussed here.

Just an aside.

And, as for a test case .... there would be no costs if you were representing yourself and, quite possibly, no order for costs against you even if you lost.

Is that a risk you are willing to take? Good luck.

Seems odd, in any event, that the landowners (CRoW land) don't avail themselves of the "free" liability insurance afforded to them by the UK Government for people exercising their right to use the land for CRoW and, instead, rely on the BCA insurance.

Maybe, I don't know, I have not discussed this with them, given that the BCA cover is free to them they have no problem with this?

Lawful access is indeterminate until there is legislative clarification or a test case and as already mentioned by others - this has been "done to death" on here already.

Maybe it has, but if someone asks the question, what should one do? Ignore them? refer them to the CNCC website?

As for the test case thing. It's risky. The personal costs could be quite high. I'd not wish to bet my mortgage either way.

 

[danthecavingman]

Graham,

You are assuming the test case would find in favour of the land owner. I'm not so sure it would. This has been discussed at length elsewhere but given that rock climbing is allowed on access land then caving would seem a reasonable chance of being a permitted activity. The difference here, as has been discussed elsewhere at length is that the BMC made bloody sure that Climbing would be permitted when CROW went through whereas the BCA rolled over to organisations such as CNCC and did nothing to ensure caving was included for fear of rocking the boat. You seem to be entrenched in the same viewpoint. Given the problems CROW may have caused for land owners on Leck Fell regarding Grouse Shooting etc, I would have thought people on the fell, underground and out of sight would be preferable to having people excercising their 'right to roam' all over prime grouse moorland. There is no logical reason why a landowner would be against cavers going caving. They could do nothing to stop anyone walking to the cave entrance.

This is all a hangover form pre-CROW when cavers had to seek permission to go caving on private land because there was no right of access.

The right of access exists and as caving is not specifically excluded by the CROW act then a test case might be the way forward. If indeed, the landowner was sufficiently outraged by someone going caving that they could actually be bothered to bring the case. I suspect little interest for such a case exists. Landowners, estate managers and tenant farmers have a lot more to worry about than a few 'nutters' disapperaing beneath the ground for a few hours at a time on the weekend...

There is an obvious area of concern that is not covered by CROW and that is digging - this does need careful management either by a controlling body or by direct negotiation with the Land Owner. Digging on CROW land where there is a right of access for the public means there is more reason than ever to tread very carefully to ensure no harm could come to anyone as a result of digging activities.
The use of CROW land for commercial gain is also another area where discussion with the CNCC and Land Owner would be required.

A lot, if not all of this debate would be quite simply stopped if DIMs were to be allowed access to the contested areas. It is exclusion that is making people unhappy. Like it or not, the glory days of large caving clubs are past and restriction of access to individual BCA members seems unfair.

Any volunteers to go down in caving legend as the person who got access to the caves sorted for everybody?

 

[graham]

Graham,

You are assuming the test case would find in favour of the land owner.

No. I'm not. I'm merely pointing out the dangers of going to law. I know too much about the vagaries of the courts to say otherwise. I can tell you that if you took a case like this to virtually any law firm in the country, the first thing they'd do is ask for ?500 - or more - up front for costs. Mainly to put you off.

There is an obvious area of concern that is not covered by CROW and that is digging - this does need careful management either by a controlling body or by direct negotiation with the Land Owner. Digging on CROW land where there is a right of access for the public means there is more reason than ever to tread very carefully to ensure no harm could come to anyone as a result of digging activities.

If you were a landowner, would you allow a surface dig to go ahead if a consequence of its success would be a significant increase in uncontrolled access to that part of your land?

The use of CROW land for commercial gain is also another area where discussion with the CNCC and Land Owner would be required.

Isn't commercial activity completely outside the CRoW legsilation anyway?

A lot, if not all of this debate would be quite simply stopped if DIMs were to be allowed access to the contested areas. It is exclusion that is making people unhappy. Like it or not, the glory days of large caving clubs are past and restriction of access to individual BCA members seems unfair.

Quite agree.

 

[Ian Adams]

Wonderful post of usual stuff Graham 

Facts don't change just 'cos you want them to.

You expressed your opinion, not facts.

CRoW was mentioned as a moot means to access the caves on the Fell lawfully -not to drag Mendips and the rest of the country into the question.

The law isn't different in Yorkshire, either.

Stick to The Fell, that is what was asked.

The "widely known and understood access agreement" is not widely known or understood by non-BCA members (who would have no choice but to approach landowners) and does not allow access for DIMs and is currently the subject of (let's say) "debate" on another thread. Furthermore, this "access arrangement" and the control thereof appears to be pivotal to a move to depose the incumbent CNCC officers. Not an entirely accurate statement you made there.

I'd be rather surprised to learn that there are cavers who are unaware of the nature of the agreement, even if they are not party to it. I don't think there was anything innaccurate in what I said.

How can Non-BCA member even be aware of the CNCC  ?(don?t say Google because they would first need to know that such a body exists to google for). Some may know and others may not. Of course your post was inaccurate and politically misleading.

The "Tories" have very little to do with the access arrangements for caves and I am not entirely sure the UK governmental politics are the rightly placed to be discussed here.

Just an aside.

And, as for a test case .... there would be no costs if you were representing yourself and, quite possibly, no order for costs against you even if you lost.

Is that a risk you are willing to take? Good luck.

Personally, yes I would be happy to take it on (that is not a prelude). I wonder if the landowner would be as keen to?

Seems odd, in any event, that the landowners (CRoW land) don't avail themselves of the "free" liability insurance afforded to them by the UK Government for people exercising their right to use the land for CRoW and, instead, rely on the BCA insurance.

Maybe, I don't know, I have not discussed this with them, given that the BCA cover is free to them they have no problem with this?

Lawful access is indeterminate until there is legislative clarification or a test case and as already mentioned by others - this has been "done to death" on here already.

Maybe it has, but if someone asks the question, what should one do? Ignore them? refer them to the CNCC website?

Perhaps offer a concise pr?cis of the previous explosion ?




Ian

 

[Stu]

There is an obvious area of concern that is not covered by CROW and that is digging - this does need careful management either by a controlling body or by direct negotiation with the Land Owner. Digging on CROW land where there is a right of access for the public means there is more reason than ever to tread very carefully to ensure no harm could come to anyone as a result of digging activities.

The use of CROW land for commercial gain is also another area where discussion with the CNCC and Land Owner would be required.

[quote author=graham]Isn't commercial activity completely outside the CRoW legsilation anyway?[/quote]

Yes. Commercial operations need permission via the landowner. They must seek it themselves! Which seems to have caused some of the fuss in the first place what with a certain northern body not liking what appeared to be an arrangement in the making outwith of their control!