Premature action on CRoW?

[BCA Chair]

I believe a simple summary of the BCA Council's view is that:
a) 4.5 has no relevance if the land owner has no legal right to withhold access.
b) There is a strong view that CRoW does apply to going caving.
c) That it is acceptable to seek a reinterpretation of CRoW.
d) Tim has been empowered on behalf of BCA to seek such a reinterpretation. 
e) It would require a change in the constitution to seek a change to the words in CRoW to make it clear that CRoW does apply to going caving.
(...)
No doubt the poor BCA Secretary will comment if he feels I have misrepresented BCA Council's view.

Apart from the fact that it is indeed 4.6 that we are discussing, I think Bob has accuratly summarise the general view of Council. I should add - because I don't think it's been mentioned in this thread yet - that the June 2015 AGM agreed the following:

This meeting confirms that the Constitution allows BCA to seek clarification from DEFRA and Natural England on their existing guidance on The CRoW Act and its application to caving.

 

[Simon Wilson]

I bet Benny Rothman et al. weren't worrying about constitutions when they planned and carried out the Kinder Mass Trespass in 1932.

We all off to Fountains Fell then?

Pay attention. A year ago access to Fountains Fell changed. There are now no permits and all you need to do is make a courtesy call at the appropriate farm.

The CroW act might well have had an effect on helping Mr. Coates to change his mind.

My apologies! Knuckles presented for the ruler!


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I'm sure Alan Speight and Johnny Latimer the CNCC Access Officer will accept your apology.

It isn't just Fountains where access is a lot improved and things are moving along behind the scenes in other areas. I believe the CRoW act has had an effect in several ways. One thing is that landowners know that they couldn't police a permit system on CRoW Access Land.

 

[David Rose]

Thank you Clive for this excellent post.

To clarify the point you raised yesterday in the the Drws Cefn thread: there are some activities explicitly excluded from the provisions of the CROW Act - for example, quad biking. Caving is not one of them. Moreover, there is good evidence that the parliamentarians that debated the Act always intended caving to come within its scope. We (Tim, Bob and the others who have been involved in this) argue that its current interpretation by Defra and Natural England, that cavers are free to descend entrance shafts or go into horizontal entrances but only so far as they remain in sight of daylight, is legally perverse, and does not reflect parliament's intention or any declared public policy.  This is the nub of the issue.

 

[jasonbirder]

There was a pretty clear majority in the BCA referendum in favour of supporting CRoW access...

But I guess a few back-room lawyers believe they can delay and circumvent that decision by quoting subsection (b) paragraph 27 of Article XXVI dated 185 in the hope of diverting a democratic decision by the club members...

The BCA isn't some dry legal document...its whatever the Cavers that constitute it decide...and they've made their decision pretty clear...

 

[Sue White]

cavers are free to descend entrance shafts or go into horizontal entrances but only so far as they remain in sight of daylight

Right then chappies, all we need to do to satisfy NE is set up a system of carefully positioned mirrors in the relevant caves to ensure sufficient daylight penetration. But no caving at night time you naughty little cavers!

 

[Simon Wilson]

Is there a legal definition of 'daylight'?

I think that NE might have to specify a number of luxes.

Tim, perhaps you could ask NE this question and if we get an answer on the number of luxes then I will propose that the CNCC buy a light meter.

https://en.wikipedia.org/wiki/Lux

Surely NE would also have to say whether their interpretation means that the daylight has to be visible at the time that you are in the cave or if you can go into the cave as far as daylight could be seen on the sunniest day. What if you got delayed in the cave and it went dark while you were in there? I think it would have to be the latter so that the CNCC can place a marker in every cave. If you have ever walked about in GG main chamber with your light turned off you will know that the amount you can see varies a lot according to the time of day, cloudiness and the amount of water flowing etc.

 

[ttxela]

None of that is really necessary, simply seal a small amount of daylight in a glass jar before you go underground and keep it handy to show any inspectors you meet down there. 

 

[Peter Burgess]

I am reluctant to make any further comment on this, but would ask you respectfully to consider the following:

I live in a large estate, and for some reason there are a lot of left-hand drive cars owned by many of the residents. The local residents' association decided that perhaps it would be much safer and more convenient for everyone if we changed the rules so that we could all drive on the right hand side of the road within the estate. So a poll was set up, and every resident was asked to choose whether they wanted to drive on the left hand side of the road or on the right hand side. Because so many residents thought they woud benefit from being able to drive on the right, a significant majority voted for it. I recall something like two thirds or more wanted the change.

So the local association agreed to push to get the change in place, but when they looked deeper into the issue, it was discovered that they would have to get a change in the legislation to allow this. The association agreed that it would be best to wait until the legislation had been changed before any further moves could be made to fulfill the wishes of the majority. Nevertheless, many residents were simply too impatient and did not want to wait. So they started to use the other side of the road regardless. Well, that started to create problems as you can imagine. The problem was brought before the local police, who confirmed that until the law had been changed, everybody should continue to use the left hand side of the road, and to leave the enforcement of the traffic rules to them. Even so, the police agreed that it would be beneficial to everyone once the law had been amended.

Unfortunately, even the traffic police started to use the right hand side of the road and there was then nobody to call upon to bring the estate to order, and to ensure that the transition that had been agreed would happen using due process and within the agreed framework.

The result was a significant amount of unnecessary road rage and long-lasting embitterment between residents who otherwise all shared the same values and a common desire to get along together peacefully. And if you bothered to ask any one of the residents who voted to maintain the status quo, every one of them would tell you that they were happy to accept the change as they believed that proper use of the democratic process was probably the way all local issues should be decided.

As for how the police behaved, that is a matter that is still being investigated. When the police don't enforce their own rules, who else is there to call upon?

Feel free to pull the analogy apart. I am certain some of you will be happy to do so. It will keep us amused on a Friday.

 

[Simon Wilson]

None of that is really necessary, simply seal a small amount of daylight in a glass jar before you go underground and keep it handy to show any inspectors you meet down there. 

Don't be so daft. It would have to be a light proof container obviously.

 

[Ouan]

The BCA constitution section 4.6. "That the owners and tenants of property containing caves have the right to grant or withhold access" should be revised to something along the lines of "4.6. That the owners and tenants of property containing caves, where they have the legal right to do so, have the right to grant or withhold access." This is irrespective of whether CRoW is shown to apply to caving.

 

[MarkS]

Peter, I think the important difference between your analogy and the issue in this thread is that Tim is simply seeking clarification of a currently unclear law, not for a change or exception to a very clear law.

I agree with the posts above that say the BCA should ensure they act constitutionally. It appears that the issue here is that the point in question (is it OK for the BCA to seek clarification of the law as it stands) is not directly addressed in the constitution. As the opening few posts above point out, different BCA committee members have put forward different takes on this.

To me it seems that the common sense approach in this situation, having just polled the membership on this issue, would be to act positively on the back of the poll result.

I think many of us appreciate Tim's efforts on this.

 

[cap n chris]

Correct me if I'm wrong but doesn't CRoW apply to Access land and, if so, it remains the case that landowners of AL can close it off to the public for something like 25 times a year for periods of up to 2-3 days, i.e. six months of weekends. If this is true then even if CRoW applies to land it still doesn't mean there's a carte blanche to do as you wish, whenever you wish, wherever you wish.

 

[Pitlamp]

cavers are free to descend entrance shafts or go into horizontal entrances but only so far as they remain in sight of daylight

Right then chappies, all we need to do to satisfy NE is set up a system of carefully positioned mirrors in the relevant caves to ensure sufficient daylight penetration. But no caving at night time you naughty little cavers!

        Lovely!

Thank you for bringing in a much needed spot of humour, to keep things in perspective!

 

[Pitlamp]

P.S. anyone got access to a cheap supply of optic fibres . . . . ? 

 

[Bob Mehew]

None of that is really necessary, simply seal a small amount of daylight in a glass jar before you go underground and keep it handy to show any inspectors you meet down there. 

Sorry to be a wet blanket but I think day light is a bit of a red hearing.  One of the key phrases is 'open-air' (with or without a hyphen) qualifying recreation.  I have a distinct impression that the interpretation by DEFRA hinges on the claim that a cave does not have 'open air'. 

 

[Stu]

Correct me if I'm wrong but doesn't CRoW apply to Access land and, if so, it remains the case that landowners of AL can close it off to the public for something like 25 times a year for periods of up to 2-3 days, i.e. six months of weekends. If this is true then even if CRoW applies to land it still doesn't mean there's a carte blanche to do as you wish, whenever you wish, wherever you wish.

22 Exclusion or restriction at discretion of owner and others.

(1)Subject to subsections (2) and (6), an entitled person may, by giving notice to the relevant authority in accordance with regulations under section 32(1)(a), exclude or restrict access by virtue of section 2(1) to any land on one or more days specified in the notice.

(2)The number of days on which any entitled person excludes or restricts under this section access by virtue of section 2(1) to any land must not in any calendar year exceed the relevant maximum.

(3)In this section "entitled person", in relation to any land, means?

(a)the owner of the land, and

(b)any other person having an interest in the land and falling within a prescribed description.

(4)Subject to subsection (5), in this section "the relevant maximum" means twenty-eight.

(5)If regulations are made under subsection (3)(b), the regulations must provide that, in cases where there are two or more entitled persons having different interests in the land, the relevant maximum in relation to each of them is to be determined in accordance with the regulations, but so that the number of days on which access by virtue of section 2(1) to any land may be excluded or restricted under this section in any calendar year does not exceed twenty-eight.

(6)An entitled person may not under this section exclude or restrict access by virtue of section 2(1) to any land on?

(a)Christmas Day or Good Friday, or

(b)any day which is a bank holiday under the M1Banking and Financial Dealings Act 1971 in England and Wales.

(7)An entitled person may not under this section exclude or restrict access by virtue of section 2(1) to any land?

(a)on more than four days in any calendar year which are either Saturday or Sunday,

(b)on any Saturday in the period beginning with 1st June and ending with 11th August in any year,

(c)on any Sunday in the period beginning with 1st June and ending with 30th September in any year.

(8)Regulations may provide that any exclusion or restriction under subsection (1) of access by virtue of section 2(1) to any land must relate to an area of land the boundaries of which are determined in accordance with the regulations.

 

[Alex]

Is it me or have we not already been over this a million times already?

 

[ah147]

Other problem with your analogy is the fact that it was an estate/housing association rule that contradicted with a national law.

Here, cavers are using their own rules to act against their own vote!

That said, I can see your point.


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[Simon Wilson]

Is it me or have we not already been over this a million times already?

Shussh, don't spoil the fun. 

 

[Clive G]

None of that is really necessary, simply seal a small amount of daylight in a glass jar before you go underground and keep it handy to show any inspectors you meet down there. 

Sorry to be a wet blanket but I think day light is a bit of a red hearing.  One of the key phrases is 'open-air' (with or without a hyphen) qualifying recreation.  I have a distinct impression that the interpretation by DEFRA hinges on the claim that a cave does not have 'open air'.

Perhaps there's the answer here in the definition of 'open air'?

If a building has no doors and windows then it is in free communication with the open air. However, as soon as you place doors and windows in position (given the building has an effective roof) then the building has its own air trapped inside and is no longer 'free to the open air'.

Likewise with a cave. If a cave has an unobstructed entrance then the air inside the cave exchanges freely with the air outside the cave and the cave is 'free to the open air'. Many caves in South Wales draught inwards during the colder winter months and outwards during the summer. However, I do recall the entrance to Tatham Wife Hole in the White Scar area of Ingleborough in the Yorkshire Dales draughting out with very welcome warm air, like a volcano, one very cold winter, when there was deep snow cover on the ground. By counter to this, when a cave has a gate across its entrance then the air is, to one degree or another, trapped inside the cave, and the cave is closed to the open air.