QC says cavers DO have access to caves under the CROW Act

[Alkapton]

A massive thank you to Dinah and all others involved....  Without the effort you put in there will never be progress.  Even a small step in the right direction is still a step.

 

[graham]

Graham, in the interests of transparency and an informed debate, it would be very useful if you would make the materials you mention widely available too. Will you ask Chris to put them on the website?

David

I made FoI requests to both NE and to DEFRA. I have asked for more on the second of those but have yet to be satisfied.

When I get time I intend to put a digest of them together for wider use. As there are many emails involved there is a high degree of repetition. I was rather hoping to get the additional material I have requested before I dd this so that it need not be done twice.

 

[graham]

... the barrack room lawyers of this forum (and their much vaunted citations to things they conveniently can't post on a public forum).

I bet that's aimed at me. 

Thing is I quoted what DEFRA have said & I wasn't believed. 

So ask them yourself.  :icon_321:

 

[Ian Adams]

A Huge thank you to David, Dinah, Tim, Bob, Jenny and all the others that have worked hard for the benefit of ALL cavers.

I hope the BCA now embrace this position and act in our best interests.

Thank you 

Ian

 

[RobinGriffiths]

This Defra guideline document places the emphasis more on low/high impact classification rather than the open air one.

https://www.gov.uk/public-rights-of-way-rights-and-responsibilities#public-rights-of-way

What are people able to do on CROW access land?
CROW gives the public the right of access on foot, which includes activities like walking, sightseeing, bird watching, picnicking, climbing and running.
High-impact activities, like cycling, fishing, horse riding, camping or driving a vehicle are not permitted under CROW. However, people can carry out these activities if they have done so with your permission or if activities are a local tradition.

 

[Alex]

So we will still need permits if we want to park on Leck fell as driving a vehicle is not covered under CROW act. So status quo. However if one were to park elsewhere and walk, there seems to be no legal reason to stop you, closed season or otherwise.

I am trying to think where its open Access (but currently requires permits) and you don't have to drive onto the land to visit the cave, I guess Fountains fell? I think your parking on Dalehead land.

 

[Fulk]

To the best of my knowledge the road up Leck Fell is a public highway maintained at local council expense, therefore anyone can use it (and park alongside it at the designated areas); CROW legislation presumably does not apply to public highways.

 

[Alex]

Oh nice looking good then.

 

[martinm]

A Huge thank you to David, Dinah, Tim, Bob, Jenny and all the others that have worked hard for the benefit of ALL cavers.

I hope the BCA now embrace this position and act in our best interests.

Thank you 

Ian

The posts by Robin and Alex above are probably spot on. Ian, BCA have been involved in the instigation of this (the CRoW working party) and will be holding a national C&A meeting on 16th August and no doubt this will be discussed in some detail. Conservation Officers and people with great experience of legal and access matters will also be attending. I'm sure it will be to the benefit of all cavers. (But might take time to filter through the 'system', as it were.) I'm sure your regional reps will get back to you in due course.

Mel.

 

[graham]

This Defra guideline document places the emphasis more on low/high impact classification rather than the open air one.

https://www.gov.uk/public-rights-of-way-rights-and-responsibilities#public-rights-of-way

What are people able to do on CROW access land?
CROW gives the public the right of access on foot, which includes activities like walking, sightseeing, bird watching, picnicking, climbing and running.
High-impact activities, like cycling, fishing, horse riding, camping or driving a vehicle are not permitted under CROW. However, people can carry out these activities if they have done so with your permission or if activities are a local tradition.

Interesting find, thank you. Caving is, of course a pretty damned high impact activity in a lot of places. Like, say, Easter Grotto.

 

[graham]

A Huge thank you to David, Dinah, Tim, Bob, Jenny and all the others that have worked hard for the benefit of ALL cavers.

I hope the BCA now embrace this position and act in our best interests.

Thank you 

Ian

Hmm, not all those people worked as hard as they might have done (I am not including the Roses in this).

Ms Rose states:

7. It is easy to see why Parliament was not intending to permit the public to access buildings. It is much harder to see why it should have been concerned to permit access only to locations with a view of the sky, or unconstrained air. Caving is an activity of the same kind as climbing, abseiling, scrambling, canyoning and walking, all of which are obviously intended to be included within CROW. There does not appear to be any policy reason for excluding caving from the scope of the Act.

She has clearly not been made aware, by those who briefed her, of two salient points. Firstly that caving is permitted under the Scottish legislation that went through at the same time. This clearly demonstrates that caving wasn't simply forgotten by the parliamentary  draughtsmen. Secondly, caving was not included in the act appertaining to England and Wales because NCA (as was) actively lobbied at the time for it to be excluded. I know this because I attended some of the relevant meetings when the then NCA C&A Officer was unable to do so himself. Now I know that some, including Jenny Potts, have recently been trying to re-write this inconvenient piece of history but I am afraid it is true. I was there. I am not the only one.

I am of the opinion that had Ms Rose been properly briefed then she may well have come to a completely different conclusion.

I am quite happy to repeat the above piece of history on oath in a court of law, though sadly I do not have an eidetic memory and cannot recall all the details of all of the meetings.

 

[bograt]

caving was not included in the act appertaining to England and Wales because NCA (as was) actively lobbied at the time for it to be excluded. I know this because I attended some of the relevant meetings when the then NCA C&A Officer was unable to do so himself. Now I know that some, including Jenny Potts, have recently been trying to re-write this inconvenient piece of history but I am afraid it is true. I was there. I am not the only one.

YUP!, strange how selective memory works innit?, like what happened to NCA shortly after this period ----?

 

[Badlad]

Dinah Rose QC considered over 700 pages of documentation in the submission alone.  She also commented that the submission was very well presented and better than some she has received from respected law firms.  This included the various positions and views of Natural England and DEFRA together with advice they had issued.  It also contained a lot of parliamentary debate and legislation as one of the key aspects was to show parliaments intent.  The QC was also briefed on the Land Reform (Scotland) Act 2003 and the supporting Scottish Outdoor Access Code ? approved by the Scottish Parliament in July 2004 which included caving.  A full history of the development of NCA and BCA was included together with the fact that responses were made to the CRoW consultation process from NCA, DCA and a number of other caving groups.  The consultation report makes clear that not all these responses were in agreement.  All of this and much more was considered by the QC.  The seven page opinion clearly gives weight to that which was considered important to the legal question in hand.  Just because certain things are not detailed in the opinion does not mean that they were not considered.

 

[graham]

YUP!, strange how selective memory works innit?, like what happened to NCA shortly after this period ----?

Aye, it transmogrified into BCA. Again, I even chaired some of the meetings which led to that happening, so I can remember them taking place. I'm not sure you were there, though.

 

[jasonbirder]

So...to be practical...does this mean I can do a trip into Boxhead Pot next week

 

[graham]

The seven page opinion clearly gives weight to that which was considered important to the legal question in hand.

I'm sure it did give weight to the bits that were important to the people who wanted the decision to come down on a particular side. That is, after all, how the adversarial nature of English law works. That's why barristers present different views in court.

See you in court, Badlad?

 

[Mike Wood]

This Defra guideline document places the emphasis more on low/high impact classification rather than the open air one.

https://www.gov.uk/public-rights-of-way-rights-and-responsibilities#public-rights-of-way

What are people able to do on CROW access land?
CROW gives the public the right of access on foot, which includes activities like walking, sightseeing, bird watching, picnicking, climbing and running.
High-impact activities, like cycling, fishing, horse riding, camping or driving a vehicle are not permitted under CROW. However, people can carry out these activities if they have done so with your permission or if activities are a local tradition.

Interesting find, thank you. Caving is, of course a pretty damned high impact activity in a lot of places. Like, say, Easter Grotto.

Or Rhino Rift.

 

[Rhys]

... the barrack room lawyers of this forum (and their much vaunted citations to things they conveniently can't post on a public forum).

I bet that's aimed at me. 

Thing is I quoted what DEFRA have said & I wasn't believed. 

So ask them yourself.  :icon_321:

I could go and ask DEFRA, but you'd probably argue that I hadn't asked the right questions. I look forward to reading the information that your questions gained.

Rhys

 

[Badlad]

I should also add that we tried to produce a balanced submission.  We did not just include documents which supported the pro access argument.  As I have said we included the consultation responses which were not all in agreement, and all legislative documentation which covered the passage of the Bill, and those which preceded it.

In response to Graham's various posts:

The QC was provided with both the DEFRA and Natural England view as they were provided.  If you have anything further you think we did not submit from your Freedom of Information request then please let me have it.  If you or anyone really has any documents which they consider would have made a difference to the QC opinion then I will forward them on to her and ask that question directly.

 

[graham]

... the barrack room lawyers of this forum (and their much vaunted citations to things they conveniently can't post on a public forum).

I bet that's aimed at me. 

Thing is I quoted what DEFRA have said & I wasn't believed. 

So ask them yourself.  :icon_321:

I could go and ask DEFRA, but you'd probably argue that I hadn't asked the right questions. I look forward to reading the information that your questions gained.

Rhys

Rhys

The following is a direct quote from an email received from NE. The response from DEFRA came as a pdf so is slightly more annoying to cut and paste, however the wording of the points is identical:

Below is a definitive QA on caves and CRoW ? this set of QAs have also been considered by Defra.



The open access rights under the Countryside and Rights of Way Act 2000 are for ?open air recreation? ? see section 2(1). For that reason, even where land is shown on the CROW maps, the legislation did not in our view create any new public rights to use cave systems beneath or within the mapped land. 


?      Do Caves qualify as mapped open country as defined under CROW? 

?      No, except possibly some large open caves on the side of mountains etc. In such cases the experience may remain essentially an open air one, depending on the configuration of the cave.


?      How does CROW apply to exploring natural underground voids? 

?      It does not.


?      Do Cavers have a right to explore natural caves within Open Access Land? 

?      See above. This does not prevent cavers (whether land is CROW-mapped or not) continuing to use particular cave systems, for example where this has been traditional, so long as the landowner continues to tolerate this or has given specific permission to do so.


?      What right do Commercial Cave Instructors have to access caves within CROW land with paid for caving training groups? 

?      None, but see the previous answer. 


So in our view these answers are definitive on the subject, though of course in the end interpretation of legislation is a matter for the courts:

I have posted this before but strangely the zealots (not you) will only accept the answers that they wish to hear.