Premature action on CRoW?

[Peter Burgess]

I can point you to a court judgement made in 1810 whereby a landowner had to pay compensation to a mill owner because he diverted the flow of water that once fed his mill, by driving a drainage adit for his quarry into the strata that fed the spring that kept the mill turning.  I suspect there would have to be some adverse effect on a third party's financial circumstances for a civil judgement to be made against the person interfering with the water.

 

[RobinGriffiths]

So if a landowner can't place the gate underground where the mineral rights owner reigns, then presumably have to place it in the open air zone, which would impinge on open access. They'd have to find a zone that isn't open air and not in mineral rights. territory! - or maybe not. Looking for suitable emoticon for emphasis, but seeing as I'm in the pub 

 

[Clive G]

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

To be an open-air activity, the activity has to be unenclosed.

What I am saying is that, for example, a cave gate causes a hitherto unobstructed cave passage, 'free to the open air', to become enclosed and thereby no longer 'free to the open air'.

However, there may be an entrance to the same cave system elsewhere which remains unobstructed, so having a gate on one entrance doesn't necessarily have to mean that the entire cave system is enclosed - just the passage behind the gate.

It's all in the semantics, which is why you can't simply reduce this issue to 'yes' and 'no' responses.

 

[Ian Adams]

It's all in the semantics, which is why you can't simply reduce this issue to 'yes' and 'no' responses.

Yes you can if you there is a specific example and I was using one that you presented.  I will para-phrase and try again;

In the case of a cave entrance, assuming no gate or other obstruction that prevents the flow of air into the said cave, are you saying that this meets the definition of "open air" or "open to air" (whichever one you used)?

Just a "yes" or a "no" to that scenario please ....



Ian

 

[Clive G]

. . . having a gate on one entrance doesn't necessarily have to mean that the entire cave system is enclosed - just the passage behind the gate.

. . .

The passage behind the gate is enclosed in relation to the gated entrance, but not enclosed in relation to any other unobstructed (and humanly passable) entrance, should such an alternative entrance be known elsewhere.

 

[Peter Burgess]

How pathetic all this is. Air gets into caves through plenty of places other than man-sized holes. There can be but very few caves that don't have several places where air oozes in regardless of cavers physically altering them so their fat bottoms can squeeze in. Goodness knows why people are debating this "how many angels fit on the head of a pin" issue. It is entertaining however so don't let me stop you........

 

[Ian Adams]

Clive,

As Peter suggests, please don't stop .... can you please just answer the question asked instead of quoting something from somewhere else that you wrote yourself instead?

Here it is again;

In the case of a cave entrance, assuming no gate or other obstruction that prevents the flow of air into the said cave, are you saying that this meets the definition of "open air" or "open to air" (whichever one you used)?

Just a "yes" or a "no" to that scenario please ....



Ian

 

[Peter Burgess]

http://www.yesnobutton.com/answer.html

 

[Clive G]

It's all in the semantics, which is why you can't simply reduce this issue to 'yes' and 'no' responses.

Yes you can if you there is a specific example and I was using one that you presented.  I will para-phrase and try again;

In the case of a cave entrance, assuming no gate or other obstruction that prevents the flow of air into the said cave, are you saying that this meets the definition of "open air" or "open to air" (whichever one you used)?

Just a "yes" or a "no" to that scenario please ....



Ian

What I've tried to show is that a cave passage only becomes enclosed once the entrance which is being used to access that passage has an obstruction such as a cave gate.

So, under the scenario you give above, the answer would be 'yes' - because the passage is unobstructed and thereby unenclosed - but you couldn't go to another entrance to the same cave which is gated and seek access there on the basis that a passage elsewhere in the system, beyond the gate, is unenclosed.

The answer has to be relative to the entrance which is proposed to be used to access the cave and may not be valid in relation to other entrances that could be gated or otherwise obstructed.

 

[Peter Burgess]

What about an intermittent sump in a cave entrance. How does that complicate things?

 

[Ian Adams]

Thank you Clive, for identifying that the answer is yes (since there is no gate)

... we got there in the end



Ian

 

[bograt]

, Well done Peter, you didn't agree with the majority decision, so you stirred it up again  .

Four pages in two days, was that your target ?

 

[Peter Burgess]

Not at all. The purpose of the post was as explained right at the beginning. People seem to think it is sour grapes or some other less than honourable motive but that's not me. A small number have been chatting off this page so you have to take it from me that it's not just me that has concerns. Somewhere in all the above I think I said that I can accept the will expressed in the poll. It is the manner in which things have been taken forward that really disappoints me (and others who I suspect don't want to be exposed to the ridicule and deliberate misrepresentation that has been demonstrated here) . Cookie had it right. Lack of due process, or something. It's not just semantics.

 

[Clive G]

What about an intermittent sump in a cave entrance. How does that complicate things?

Well, that's Otter Hole, with its tidal sump, and, fortunately as far as answering the question goes, there's a gate there on the entrance, too!

I think what we're looking for is the distinction between 'enclosed' and 'unenclosed' cave passage. If there's a sump in the way in the entrance passage then the passage beyond, as relates to any entrance prior to the sump, has got to be 'enclosed'. However, if you could approach the sump via another unobstructed entrance, more than one passage away from the other side, then you could dive out through the sump, because you would have approached it via an unenclosed cave system. Once you were through the sump, having entered via an unenclosed cave system, you would be in the unenclosed entrance passage.

So, you would only have a right to pass the site of the sump via the single entrance passage which approached it from the surface if the sump had dried up sufficiently to form a duck or less at the time you were there.

 

[Peter Burgess]

Well a sump is not like a gate or a wall of rock. Technically anybody can pass through it, so there is no enclosure, just a different fluid to pass through.

 

[danthecavingman]

What about a pointed stick?

 

[Clive G]

Well a sump is not like a gate or a wall of rock. Technically anybody can pass through it, so there is no enclosure, just a different fluid to pass through.

If it's a flowing-water sump then air is likely to be being pulled through with it, depending on the flow rate. However, a static sump wouldn't be drawing any air through at all.

The key distinction which has to be met satisfactorily is between 'enclosed' and 'unenclosed' activities.

I'm having the thought that diving through sumps is something that would have to be clarified in the current legislation, given caving comes to be ordinarily accepted as being an unenclosed activity when carried out via unobstructed cave entrances.

 

[Peter Burgess]

If you had a duck with only a few inches of air space and compare it with a hole in the rock of the same size as the air space, one you can get through without diving and the other you can't get through under any circumstances. So water doesn't enclose a space in the same way that rock does, in that one will allow the passage of a caver and the other doesn't. So a sump doesn't enclose a space like rock does.

 

[jasonbirder]

A small number have been chatting off this page so you have to take it from me that it's not just me that has concerns.

I can just imagine loads of active cavers sitting around in the pub discussing the minutia of the BCA constitution...

Oh wait...I can't...

 

[Peter Burgess]

I am going to suggest another way to consider what is an open-air activity. Rather than say it is "outside" depending on whether there is some kind of connection with the outside world, whether it's a view of the sky, or whether you can see daylight, how about whether you are directly influenced by meteorological factors such as sun, rain or wind. We go "indoors" to escape the effects of the weather. We go "outdoors" to experience the direct effects of the weather. I said direct effects, like feeling the wind, the sun, or getting wet in the rain, or cold in the snow. Underground you are not partaking in open-air activity by that definition. Floods and underground streams are indirect effects by and large, insofar as they influence us as cavers. The cave floods because of the weather but the flood itself is not "weather", the rain is. So the only place you can say you are doing "open-air activity" when in a cave is when you can feel the wind, sun, or rain and that is not going to be very far into any cave bar a very few.