Paying for dyo

[prahja]

By the same argument when I give mates a lift and we split the fuel I become employed by them as a taxi driver. I can't speak for the insurer or the BCA, but I don't think this is an issue.

I think a better analogy is if you give a load of strangers a lift and they give an organisation or company a load of money but you get the benefit of free transport and free use of the car, then I?d have thought your insurer may be interested?

Anyway, I was asking about insurance for wardens in a cave and not about your car insurance - I suspect the policies may differ a little and I know nothing about your insurance policy so it?s not a good analogy at all in my opinion?.

 

[JoshW]

By the same argument when I give mates a lift and we split the fuel I become employed by them as a taxi driver. I can't speak for the insurer or the BCA, but I don't think this is an issue.

I looked into this a little bit before and I think in this instance, access to where you're going isn't dependent on your mates getting a lift with you. If you said I'm going to take you guys caving for a weekend, and you have to pay me a fiver, irrespective of whether you're getting a lift with me.

In this caving instance, you can't access that section of the cave without a warden (or effectively a guide in this instance) and it's part of the package that includes access, and therefore I see it difficult to not see how it's commercial, with, as Prahja pointed out, the financial gain being that the warden's don't have to pay this access fee.

Just to be clear - it sounds like you are speaking for the bca - is that right?

Not sure how Prahja has come to this conclusion though, Ari clearly say 'from my understanding' and signposts towards the insurance manager.

 

[prahja]

I think what Nick was saying is that charging for access has absolutely no impact on liability whatsoever. It doesn't matter whether the operation is free or charged, either a duty of care is owed or it isn't.

On a warden-led trip, the duty of care of a warden is very limited. In the main, cavers are responsible for their own competence and safety.

Volenti non fit injuria...

Thanks a lot. After reading the policy, my understanding was different given the leader is getting a benefit in kind. I?ll wait for a bca or dyo cag statement on if it is valid! (Unless you are speaking on behalf of bca, the insureror dyo cag? Or is this your personal view?)

 

[prahja]

Not sure how Prahja has come to this conclusion though, Ari clearly say 'from my understanding' and signposts towards the insurance manager.

I was just unsure and wanted to understand who was speaking and if they knew what they were talking about - I thought Ari was speaking from a point of knowledge. I didnt know if they were bca, dyo cag, etc. Ari?s statements just seemed pretty confident. I genuinely dont know about the insurance. I?d thought Nick was insurance officer but when Ari categorically said Nick?s comment wasnt bca policy I assumed he knew what bca policy was?.

 

[aricooperdavis]

Haha, sorry prahja, no I'm talking rubbish most of the time! I know that Nick can't speak on behalf of the BCA, which is why I was confident that he wasn't.

 

[mikem]

One of dyo's own access conditions is:

Under no circumstances may payment be made for caving in Dan yr Ogof. All caving must be of a non-commercial nature.

 

[nickwilliams]

I am no longer an officer of BCA, and my views are personal. However, I did run the BCA insurance scheme from 1993 up until 2016.

If the money is not changing hands in the course of a business activity then IMV the BCA insurance cover would apply. For it to be considered to be a commercial activity the money would have to end up being part of the income for an individual or a company which relies on that income, to at least some degree, for their livelihood.

Even paying wardens a nominal amount to offset some of the expense of their volunteer activities would not be considered to be a commercial activity. It is ridiculous to suggest that the ?benefit? of a warden not being charged a fee in return for them volunteering to lead a trip makes this in any way a commercial activity.

 

[Ed]

If I was a warden / DYO CAG I'd rather not gave to argue the point with HSE...

 

[Tony_B]

I never said they were.... The access control panel /wardens are. They need to fully aware of the potential impact and liability on themselves as they are charging for access... It now becomes a commercial enterprise - even if its not for profit.

Without making any comment on any other aspect of this matter, it would be a really good idea for people to stop spouting this sort of bollocks. It's exactly the reason why people like the management of show caves (and I'm not singling out DYO here) think that they have to demand that everybody have insurance, and/or that they will somehow be liable if experienced cavers, who are there entirely by their own choice, have an accident in their cave.

Thank you, Nick. At last, a voice of reason. An enormous amount of the time that DYO CAP members spend in meetings - whether online or in person - and in email correspondence, is devoted to reassuring the management of the showcave on exactly this point.

 

[RestingCaver]

On a more general question of cave ownership. How does that work? Is it purely limited to cave under the surface land that the company owns? Or does it extend under other landowners land? Or maybe they lease underground under someone else's land? Maybe mineral rights based? Or do the company just own and control the access point? Bit OT, but would be interesting to know

Ownership of the mineral rights (and access to them) can be separate from the surface. The Land Registry may hold the information if the DYO title is registered and if it is should reveal if the mineral rights are owned over the same or a wider area than the surface ownership.

 

[Stuart France]

The show cave company bought the mineral rights off Nantygwared Farm some decades ago concerning the upland areas that the farm owns.  The rest, I understand, is owned by Welsh Water, managed for public access by the National Park, and the mineral rights for that land still belong to Welsh Water.

There's no chance of opening any new commercial quarry up there nor any competitor show cave offering a vertical experience with a lift to deposit tourists (and cavers) straight into the Elephant's Arsehole etc...  The national park, which is the planning authority here, would not be too keen on scarring the landscape, and NRW would have something to say too as it's an SSSI.

 

[RestingCaver]

"The show cave company bought the mineral rights off Nantygwared Farm some decades ago concerning the upland areas that the farm owns.  The rest, I understand, is owned by Welsh Water, managed for public access by the National Park, and the mineral rights for that land still belong to Welsh Water."

Thanks Stuart. If this is correct then it means that under the current law (CRoW Act) the show cave can expect to exclude third party access from caves within those areas where they own both surface area and/or mineral rights, or to agree access as they are currently so inclined.

If Dwr Cymru owns the land and minerals within which the projected extensions of DYO are to be discovered then it is they, not the show cave that will control the upper access, (until the legislation changes to confirm that caving access is included within CRoW Act land). Getting permission to dig from Dwr Cymru, within a SSSI would be a separate challenge.

Once new upper entrances are "discovered" then it is likely that the grille at the end of the DYO show cave will be locked as the sign there states will happen. Maybe through-trips will still be possible from the resurgence end in such a scenario but a wider agreement would be necessary if cavers entering those entrances from Dwr Cymru land were to be allowed to exit caves in the Show Caves ownership. It's complicated.

 

[Scrappycaver]

"The show cave company bought the mineral rights off Nantygwared Farm some decades ago concerning the upland areas that the farm owns.  The rest, I understand, is owned by Welsh Water, managed for public access by the National Park, and the mineral rights for that land still belong to Welsh Water."

Thanks Stuart. If this is correct then it means that under the current law (CRoW Act) the show cave can expect to exclude third party access from caves within those areas where they own both surface area and/or mineral rights, or to agree access as they are currently so inclined.

If Dwr Cymru owns the land and minerals within which the projected extensions of DYO are to be discovered then it is they, not the show cave that will control the upper access, (until the legislation changes to confirm that caving access is included within CRoW Act land). Getting permission to dig from Dwr Cymru, within a SSSI would be a separate challenge.

Once new upper entrances are "discovered" then it is likely that the grille at the end of the DYO show cave will be locked as the sign there states will happen. Maybe through-trips will still be possible from the resurgence end in such a scenario but a wider agreement would be necessary if cavers entering those entrances from Dwr Cymru land were to be allowed to exit caves in the Show Caves ownership. It's complicated.

I believe the top entrance fee will be in the region of ?10 per head. This will  contribute towards any shuttering materials needed to maintain future access and a few tins of soup .

Sent from my SM-G935F using Tapatalk

 

[Stuart France]

It is pretty simple really: land is 3D in law.  Whoever owns the land owns the access rights to the material the land is made of and the air space above it, to the centre of the earth and the end of the universe, only in theory, which is the medieval dictum: Cuius est solum, eius est usque ad coelum et ad inferos.

These days the 3D aspect is limited to only a reasonable depth or height.  It is not all the way to heaven and hell as in the latin dictum.  For example, you personally cannot charge an airline a trespass fee for flying through your airspace which happens to be a commercial route otherwise airports and flightpaths would be impractical.  Monumental numbers of wayleave agreements with homeowners and commercial property would be needed.  Similarly, modern case law suggest rights going downwards are limited to what you can in practical terms reasonably exploit for yourself.

Mineral rights can be sold off separately from land which splits off a right to exploit the minerals commercially as distinct say from farming the land surface commercially.  The existence of mineral rights, whether explicitly created by their sale or remaining integral with the land if not sold off, is irrelevant to public access rights.

For example, limestone pavements at Malham are bare minerals appearing at the surface.  Someone owns that land;  someone owns its mineral rights;  they would be the same person or entity unless the mineral rights had been sold.  You can walk on that grass or rock because (a) it?s CROW Access Land, (b) there are footpaths and other rights of way.  You can go rock climbing legally too where you are on the minerals until you fall off and then you are in the landowner's airspace for a few moments and finally land on their grass or fall down their cave.

On the other hand, public access may be limited by by-laws which can apply to NT land or NNRs.  CROW and LPA both provide the means of limiting public access too, for reasons such as public safety or conservation in specific cases.  SSSI status of itself is irrelevant since WCA offers no means to limit public access to SSSI land.

There is no difference between walking on bare limestone above Malham Cove and walking on bare limestone anywhere else - like in cave.  We?ve just had a Judicial Review where the Welsh Government and its allies have walked over burning red hot coals for 2 years to try to stop a court case that would have determined the principle that an access right to land means an access right to caves too.

My view is the government can never bring a court case against cavers on this matter, and they would do their utmost to stop anyone else trying it by joining their case as an interested party and then frustrating it.  The government clearly does not want an explicit and crystal clear right of access to caves to come into existence thus it simply can?t handle the uncertainty of what any judge might rule.  It's paralysed and so it's fallback position is relying on an argument that the general grant of access in CROW is not general enough to cover caves.  It's saying an unspecific term was cunningly crafted so as to deliberately exclude caving so as not to have to bother adding caving to the explicit list of banned activities in Schedule 2 of the Act.  This is close enough to nonsense to fear litigation on it.

Mineral rights simply don?t come into it.  They concern commercial exploitation.  You can walk on the minerals of the limestone pavements above DYO on Access Land as of right (these are on Welsh Water land) and you can walk on limestone pavements on the land belonging to the farm too as of right where it is Access Land.  This is regardless of the fact that the farm sold its mineral rights to DYO, and regardless of mineral right ownership in Welsh Water's area, and regardless of whether you are on the minerals or on the grass be that for walking, running, climbing, caving or anything else that is not  on the banned list.