Premature action on CRoW?

[Ian Adams]

Clive,

Interesting definition of "open air" you have identified.

Am I right in thinking from your rather excellent definition, that "open air" in a cave extends from the entrance to a point where it can longer pass (such as a sump?)



Ian

 

[Simon Wilson]

Clive,

Interesting definition of "open air" you have identified.

Am I right in thinking from your rather excellent definition, that "open air" in a cave extends from the entrance to a point where it can longer pass (such as a sump?)



Ian

No problem Ian, we can sort that.

Ireby Sump with open-air.

 

[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. 

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'.

Ok then, simply ensure that the light you have trapped in the jar is held in the medium of air. Then, if challenged simply take off the lid, then you will have open air.

 

[Clive G]

Clive,

Interesting definition of "open air" you have identified.

Am I right in thinking from your rather excellent definition, that "open air" in a cave extends from the entrance to a point where it can longer pass (such as a sump?)



Ian

Taking the example of Agen Allwedd Lower Main Stream Passage downstream Sump 1, the free flow of air appears to be sealed off at the sump, but if you go up into Gothic Passage and Resurrection Passage, you can dry cave all the way to the balcony which overlooks the stream passage beyond downstream Sump 3.

Yet, even though a sump pool might appear closed to the open air (inside the cave), during times of spate, following heavy rain or a snow melt, the King's Road in Daren Cilau, which leads to St David's Streamway (closed by Terminal Sump at the World's End at the downstream end and St David's Sump at its upstream end), draughts strongly as a result of the air that has been drawn through the sumps by turbulent water. This effect is similarly experienced during times of spate in the Hard Rock Extensions.

This free circulation of air within the cave is clearly separate from the situation at the entrance which a caver may wish to use to enter the cave. One entrance could be closed to the open air, through having the likes of a gate in place, whereas other entrances (usually on land under different ownership) could exist elsewhere that are free to the open air - whereby to enjoy the right of 'open access' the alternative entrances would have to be found and used in preference to the entrance(s) closed to the open air.

If a gate was encountered some distance into an open-access cave, then the right of 'open access' would end at the gate.

So the issue that needs resolving is how and when cave gates can legally be installed, by whom, and what liabilities (if any) thereby ensue - depending on the cave access/management policy put in place to manage and conserve the cave.

 

[Simon Wilson]

Clive,

Interesting definition of "open air" you have identified.

Am I right in thinking from your rather excellent definition, that "open air" in a cave extends from the entrance to a point where it can longer pass (such as a sump?)



Ian

.. Terminal Sump at the World's End ...

This free circulation of air within the cave is clearly separate from the situation at the entrance which a caver may wish to use to ... preference to the entrance(s) closed to the open air.

If a gate was encountered some distance into an open-access cave, then the right of 'open access' would end at the gate.

So the issue that needs resolving is how and when cave gates can legally be installed, .... [simples]

Welcome to the party Clive. You're really getting into the spirit and I'm glad you remembered fancy dress.

 

[Ian Adams]

Clive,

Just to be clear on your point;

You are saying that unless the air is blocked (such as by a gate as you give as an example), the cave is "open to the air" ?



Ian

 

[Bob Mehew]

I think cremations, see http://www.bailii.org/ew/cases/EWHC/Admin/2009/978.html plus http://www.bailii.org/ew/cases/EWCA/Civ/2010/59.html and smoking, see http://www.legislation.gov.uk/uksi/2006/3368/contents/made might be of interest to this 'open' debate. 

As an aside how do the oxygen levels stay normal in a cave?  I can understanding CO2 being scrubbed out by water but can't see dissolution of oxygen from water being a sufficient driving force.  That makes me feel drafts must be involved.  (And apologies to Chris - the draft detector work is still (just) on my list of to dos.)  Perhaps a new thread?

edited to include third link

 

[Clive G]

Clive,

Just to be clear on your point;

You are saying that unless the air is blocked (such as by a gate as you give as an example), the cave is "open to the air" ?



Ian

The analogy I am appealing to is that of a house without doors or windows, whereby "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, by which I mean a cave negotiable by a person, so long as there is no gate in place, "the air inside the cave exchanges freely with the air outside the cave and the cave is 'free to the open air'."

The degree of obstruction to the open air by a cave gate is irrelevant under this line of argument, because a cave gate prevents the passage of people and any air escaping around the side of the gate is no different than air entering through cracks around (or beneath) a door or through an open window in a house.

 

[Pegasus]

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'.

Ok then, simply ensure that the light you have trapped in the jar is held in the medium of air. Then, if challenged simply take off the lid, then you will have open air.

Excellent 

 

[Clive G]

I think cremations, see http://www.bailii.org/ew/cases/EWHC/Admin/2009/978.html plus http://www.bailii.org/ew/cases/EWCA/Civ/2010/59.html and smoking, see http://www.legislation.gov.uk/uksi/2006/3368/contents/made might be of interest to this 'open' debate. 

As an aside how do the oxygen levels stay normal in a cave?  I can understanding CO2 being scrubbed out by water but can't see dissolution of oxygen from water being a sufficient driving force.  That makes me feel drafts must be involved.  (And apologies to Chris - the draft detector work is still (just) on my list of to dos.)  Perhaps a new thread?

edited to include third link

This is what I've noted on the subject of surface hunting for new caves, using cave draughts, in the Daren Cilau section of the Llangattock book:

[Surface] draughts [in the vicinity of limestone outcrops] being driven by a combination of factors: certainly differences in atmospheric pressure and temperature between the surface (or 'outside world') and hidden chasms, connected with an extensive cave network within the rock, but also by the release of air drawn through flooded conduits by subterranean water flow - especially during times of spate.

 

[Ian Adams]

Clive,

I appreciate your various analogies .... however, for the sake of clarity;

You are saying that unless the air is blocked (such as by a gate as you give as an example), the cave is "open to the air" ?



Ian

 

[Clive G]

The main question here is who is entitled to place a gate on or inside a cave?

I think the answer has to be the landowner (or their agents, heirs or assigns), but subject to any relevant legislation in place, including that concerning not obstructing caves where these are known to be visited by bats and used as bat roosts, etc.

I don't know what depth is normally associated with the ownership of freehold or leasehold land, but for most cave entrance series at a relatively shallow depth beneath the surface, the cave is likely to be owned or leased by the surface land owner.

Mineral rights legislation would only apply, I suspect, if the cave had been used as a mine at some time, and, provided it is a natural cave, solely in limestone rock, only then if any extraction was to take place from inside the cave. However, with man-made mineral mine workings, then it's likely the landowner couldn't even enter the workings without complying with certain set legislation, let alone start to make any material change within the mine workings themselves.

For the larger cave systems, which, once you get a significant distance into these systems, can be several hundred feet underground, it is likely that because of the depth of the cave beneath the surface, the surface landowner will not have sufficient title in their land ownership to exert any control over what happens at such a great depth.

In addition, should a landowner decide to gratuitously gate some or all the caves on their land, and not allow access, then I would hope it would be possible for people to be able to appeal to have the gates removed on the basis of prescriptive rights having been obtained through prior unhindered and uncontested access over a set number of years.

Of course, as soon as a landowner might start charging for entry through the cave gate then a whole new world of legal liabilities would open up for the landowner.

Ultimately, within reason and the law, provided the site is a natural cave, he who owns the entrance(s) . . . sets the rule (as per clause 4.6).

 

[Ian Adams]

Clive,

You are obviously very adept at being able to understand big pictures and I do appreciate your further analogies and paradigms.

However, we do need to press forward one step at a time and to do that, please could you confirm (yes or no will do) that;

You are saying that unless the air is blocked (such as by a gate as you give as an example), the cave is "open to the air" ?



Ian

 

[Bob Mehew]

The main question here is who is entitled to place a gate on or inside a cave?

Apologies to Clive but I think he is substantially wrong. 

I consider the person who is entitled to place the gate is the owner of that part of the land where the gate is to be located.  If on the surface, then it is the surface land owner.  If underground, then it is the mineral rights owner if that has been separated from the surface land owner rights. 

There is an interesting situation brought out by Roy's reference to the Countess of Lonsdale v Tesco where both have conflicting rights. 

The surface land owner can exert his rights all the way down, as reaffirmed by the Supreme Court in 2011.  (An oil company was forced to pay compensation to the surface land owner for letting their pipe run under his land at several thousand of feet down.)   

And in my view a place in the 'open air' requires more than a tenuous link to the 'out of doors countryside'.

 

[Peter Burgess]

Yeah, Clive, keep it simple - some members struggle with long sentences!

 

[Clive G]

Clive,

You are obviously very adept at being able to understand big pictures and I do appreciate your further analogies and paradigms.

However, we do need to press forward one step at a time and to do that, please could you confirm (yes or no will do) that;

You are saying that unless the air is blocked (such as by a gate as you give as an example), the cave is "open to the air" ?



Ian

This is the relevant section:

Likewise with a cave, by which I mean a cave negotiable by a person, so long as there is no gate in place, "the air inside the cave exchanges freely with the air outside the cave and the cave is 'free to the open air'."

 

[Rhys]

This is all good fun, but the relevant phrase in CROW Act is "open-air recreation", not "open to the air recreation".

Similarly, extent of daylight penetration is is merely a possible proxy measure for "open-air". Focussing too closely on how this differs by time of day, weather conditions etc is pretty pointless...

 

[Ian Adams]

I am very interested in what CliveG is saying and I am trying very hard to understand him and I am sure he has got it "bang on" (certainly his very clever and detailed argument has me hooked).

Clive ... PLEASE answer the question I have asked "Yes" or "No" ...

Thanks

Ian

 

[Clive G]

The main question here is who is entitled to place a gate on or inside a cave?

Apologies to Clive but I think he is substantially wrong. 

I consider the person who is entitled to place the gate is the owner of that part of the land where the gate is to be located.  If on the surface, then it is the surface land owner.  If underground, then it is the mineral rights owner if that has been separated from the surface land owner rights. 

There is an interesting situation brought out by Roy's reference to the Countess of Lonsdale v Tesco where both have conflicting rights. 

The surface land owner can exert his rights all the way down, as reaffirmed by the Supreme Court in 2011.  (An oil company was forced to pay compensation to the surface land owner for letting their pipe run under his land at several thousand of feet down.)   

And in my view a place in the 'open air' requires more than a tenuous link to the 'out of doors countryside'.

I mention mineral rights briefly, but I'm not dealing with man-made mine workings in my posting, rather natural cave systems, solely in limestone.

Sorry if I didn't make it clear, but by 'landowner' I mean the person who owns the land where the gate is to be situated at the cave entrance, or, alternatively, the landowner who owns the land vertically above the point in the cave where a gate is to be situated in the cave.

On the cave depth issue I haven't any reference to hand but certainly heard somewhere that the surface land owner doesn't have rights beneath a certain depth. Someone owning the mineral rights will be in a different position, but mineral rights are for the extraction of minerals and where natural cave systems exist that, for example, carry water and act as a drainage conduit for the land above, it may well be that even the mineral rights owners don't have the right to change or redirect such watercourses and thereby the surrounding cave passage(s).

 

[Ian Adams]

Clive,

Please, just "yes" or "no" ....?

Ian