Author Topic: Loss of cave access, CROW and other things  (Read 118437 times)

Offline ian.p

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Re: Loss of cave access, CROW and other things
« Reply #250 on: March 22, 2013, 02:44:01 pm »
I understand you Ed - but perhaps there is something to be said for not nailing everything down absolutely in tablets of stone, so that cavers can exploit grey areas to their own advantage sometimes? (in an entirely responsible way of course!) Just a thought.

Agreed but i think some councils make there lives harder and the lives of cavers trying to access land harder then they need to be the system works alright for normal club cavers but as soon as you go outside the box you enter a whole new world of burocratic pain in my experiance. Ever tried to organise permits for a dye trace on leck fell? my best advice would be dont. Equally if your club is centered around taking young people caving expect to have to send at least 5 emails per permit explaining your not a outdoor persuits center doesnt seem to matter that you are registered as a BCA member club and have had the same argument every year for years with same individuals.

Offline Pitlamp

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Re: Loss of cave access, CROW and other things
« Reply #251 on: March 22, 2013, 02:59:47 pm »
Well, with hand on heart, I can honestly say I've never had anything but help, from the volunteers who make CNCC work, on occasions when I've had to ask for assistance in special circumstances.

At the end of the day CNCC is all about promoting the best possible access, in often difficult circumstances. Without the efforts of the various CNCC officers we'd all be much worse off. I just find myself wondering how often other cavers ever think of actually thanking those individuals who give so much of their time for our benefit. I have - and, boy, does it make a difference next time help is needed!

(Got to sign out of this discussion now due to other priorities. Cheerio all.)

Offline bograt

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Re: Loss of cave access, CROW and other things
« Reply #252 on: March 22, 2013, 04:38:01 pm »
http://www.legislation.gov.uk/ukpga/2000/37/introduction

Been confined to quarters today by white stuff so thought I'd do a bit of surfing. The above link is about the most comprehensive detail of what and what is not permissible under CRoW.

 I think the biggest problem is one of interpretation, CRow is established for "open air recreation", is this a fair description of caving?
 
Under the act landowners are exempt from claims against them for injuries sustained by "natural features" unless they are found to be "intentionally negligent", a criminal offence in itself.

The act also mandates the setting up of "Local Access Forums (or Fora)" to deal with issues arising from the legislation, set up under the auspices of the National Park Authority where relevant, Local Authority where not, perhaps this is where your regional councils could make representation on your behalf?
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Offline Stuart Anderson

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Re: Loss of cave access, CROW and other things
« Reply #253 on: March 22, 2013, 04:53:36 pm »
http://www.legislation.gov.uk/ukpga/2000/37/introduction
I think the biggest problem is one of interpretation, CRow is established for "open air recreation", is this a fair description of caving?

Part of many people's job as "outdoor" instructors is to take groups/people caving. This requires insurance; this insurance is bought as a package covering "outdoor pursuits". One of which is caving/potholing/mine exploration.

Many outdoor pursuit centres operate with caving as an activity alongside climbing, mountaineering etc.

It's not a great leap to make open air recreation analogous or synonymous with outdoor pursuits generally.

Of course it'd need a legal test, but I'd wager a years worth of my salary that an outcome would favour caving as an "open air recreation".

This is only third hand rumour but when representations were made by the likes of the BMC before the CRoW 2000 Act, NCA (as it was) was notable for it's not pushing for a case.  :shrug: Was this "policy" or just sh*t stirring?
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Offline bograt

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Re: Loss of cave access, CROW and other things
« Reply #254 on: March 22, 2013, 05:05:36 pm »
IIRC, at that time NCA was in a "state of flux".

Just remembered another bit in the legislation, visitors are not allowed to carry out a business on CRoW land, I wonder how outdoor centres get round that one with their climbing courses?
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Offline graham

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Re: Loss of cave access, CROW and other things
« Reply #255 on: March 22, 2013, 05:10:43 pm »
Just remembered another bit in the legislation, visitors are not allowed to carry out a business on CRoW land, I wonder how outdoor centres get round that one with their climbing courses?

I rather suspect that many of them ignore it. Not that long ago, I heard of a report on 'outdoor activities' relating to a specific piece of land. A number of bodies had been involved in putting it together, but that did not include the landowner who knew nothing about it until a copy found its way into his inbox. I don't think he was impressed.
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Offline paul

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Re: Loss of cave access, CROW and other things
« Reply #256 on: March 22, 2013, 05:11:27 pm »
I think the biggest problem is one of interpretation, CRow is established for "open air recreation", is this a fair description of caving?
From
Quote
05_important_information_for_access_users_faq_tcm6-26818.pdf
on www.naturalengland.org.uk:
Quote
What activities are allowed on access land?
The CROW Act gives people a right to use access land for the purposes of open air recreation.
Activities such as running, walking, bird watching and climbing are permitted but the new rights
do not extend to other activities such as camping and horse-riding.

Can I ride a horse or a bike across access land?
Horse-riders and cyclists continue to have the legal right to ride along public bridleways that
cross access land, but have no general right of access to areas of open country or registered
common land – though nothing prevents them continuing to use land they have used in the
past.
Landowners can choose to permit additional activities such as horse riding on an informal basis,
or can choose to dedicate their land for additional access rights if they want the rights to be
allowed permanently (for further information please refer to the CROW Section 16 page).
What activities are not included in the new rights?

The following list summarises key activities that are expressly excluded from the new rights of
access. You can find more details on these ‘general restrictions’ under Schedule 2 to the
CROW Act 2000:

+ Riding a horse or bicycle
+ Driving a vehicle (unless it is an invalid carriage)
+ Taking an animal, other than a dog
+ Camping
+ Organised games
+ Hang-gliding or paragliding
+ Using a metal detector
+ Commercially-run activities on the land
+ Swimming in, or using boats or sail boards on, non-tidal rivers, lakes and so on
+ Intentionally removing, damaging, or destroying any plant, shrub, tree or root
+ Lighting, causing or risking a fire
+ Damaging hedges, fences, walls, crops or anything else on the land
+ Leaving gates open, that are not propped or fastened open
+ Leaving litter
+ Intentionally disturbing livestock, wildlife or habitats
+ Posting any notices
+ Committing any criminal offence

The recreational activities on this list are not always prohibited on access land. There may be
other, existing rights or customs to do such things or the landowner may permit such uses. For
example, horse riders have the legal right to ride along public bridleways or byways that cross
access land and organised sports or commercially run events may be held with the landowner's
permission.
 


So certain things appear to be specifically prohibited (Horse Riding, Hang-gliding) while "Activities such as running, walking, bird watching and climbing are permitted". Perhaps this is just a list of "open air recreational" activities but it could easily include "caving"?
Surely in the spirit of the meaning of "open air recreation" caving would be included? I is wasier to list specific prohibitions than list all possible allowable activities such as playing with a kite or painitng or photographing landscapes or any other activity whcih would surley be thought of as "open air recreation". I'm sure that just because caving involves an enclosed space that wouldn't discount it as such.
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Offline Jopo

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Re: Loss of cave access, CROW and other things
« Reply #257 on: March 22, 2013, 05:19:56 pm »
Imagine.

Like a very large percentage of the population you think cavers are nuts. All the hassle they cause if there is a rescue - costing the community a bloody fortune!!

So you are landowner with a cave on your land. Someone turns up to negotiate access. In the process they mention that cavers will be covered by Landowners Liability insurance.

You wonder why? Climbers don't have insurance, walkers don't have insurance - why should cavers need it. It is much easier for me to say no - just in case. After all what do I care about nutcases who find it fun to cave.

If Landowner Liability insurance is unnecessary, and it is MY opinion that we do not, then why do we (the caving fraternity in general) insist we do?

I can understand why many club cavers believe that it is necessary to insure committee members against all sorts of liabilities perceived or real but why the Landowners Liability inclusion. My club has many older members who will never ever cave again but they also have to pay their whack.

We may just have created petard to hoist ourselves upon.


I accept that it may be too late to turn the clock back with the cat well out of the bag and if Third Party Liability insurance keeps hardworking and dedicated committee members happy it is a small price to pay.

Jopo

Offline Stuart Anderson

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Re: Loss of cave access, CROW and other things
« Reply #258 on: March 22, 2013, 05:21:36 pm »
IIRC, at that time NCA was in a "state of flux".

Just remembered another bit in the legislation, visitors are not allowed to carry out a business on CRoW land, I wonder how outdoor centres get round that one with their climbing courses?

Obviously can't speak for all of them; in my experience all the centres or organisations I've been involved with sought permission once and it was given freely, for as long as, I presume, CRoW was the pre-eminent Act of Parliament.

It's not just centres or instructors. My running club has to seek permission to run it's races. It's always granted.
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Offline bograt

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Re: Loss of cave access, CROW and other things
« Reply #259 on: March 22, 2013, 05:22:57 pm »
That was my opinion Paul, a test case could be raised at a LAF by a regional body, I would encourage this route since these things vary from area to area.
 
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Offline bograt

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Re: Loss of cave access, CROW and other things
« Reply #260 on: March 22, 2013, 05:28:32 pm »

You wonder why? Climbers don't have insurance,

I think you'll find that BCA insurance was originally based upon the BMC scheme.
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Offline Stuart Anderson

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Re: Loss of cave access, CROW and other things
« Reply #261 on: March 22, 2013, 05:30:26 pm »

You wonder why? Climbers don't have insurance,

I think you'll find that BCA insurance was originally based upon the BMC scheme.

But not all climbers are in BMC; and very few (if any) venues require insurance as prerequisite.
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Offline blackholesun

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Re: Loss of cave access, CROW and other things
« Reply #262 on: March 22, 2013, 06:09:23 pm »
I'm strongly in agreement with Paul :
"Surely in the spirit of the meaning of "open air recreation" caving would be included? I is wasier to list specific prohibitions than list all possible allowable activities such as playing with a kite or painitng or photographing landscapes or any other activity whcih would surley be thought of as "open air recreation"."

I would say (without any legal knowledge) this it is an "open air" activity as an open cave is, erm, open to the air. Gated caves and might be different, I don't know. Activities that aren't open air are usually thought to be inside an object with doors such as camping, staying in a caravan or car.

Take one example. It is possible to climb in Trow Gill (the gulley on the walk to GG) without any form of permit. Does that mean that one can also climb GG main hang without a permit? Surely these are both "open air" recreation. Following this, I think it would be perverse if the law allowed free/aid climbing but not abbing and prusiking. Therefore I can't see how cavers should need a permit, but climbers don't.


Offline TheBitterEnd

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Re: Loss of cave access, CROW and other things
« Reply #263 on: March 22, 2013, 07:11:05 pm »
As I said earlier, the people who wrote the legislation were sufficiently unsure of the scope of the term "open air recreation" that they put CAMPING in the list of exclusions, presumably just to be sure.
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Offline Roger W

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Re: Loss of cave access, CROW and other things
« Reply #264 on: March 22, 2013, 07:32:23 pm »
Camping surely has the idea of actually staying on the land, rather than walking across it, taking photographs and suchlike?
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Offline steviet_scg

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Re: Loss of cave access, CROW and other things
« Reply #265 on: March 22, 2013, 08:10:40 pm »
I can certainly see the logic that many have outlined - but probably also need to remember that Landowners can exclude people from CRoW land - sometimes temporarily but for the purposes of nature conservation and heritage preservation they can exclude or restrict access for any period, i.e. to help conserve the "flora, fauna or geological or physiographical features of the land in question" and having  "regard to any advice given to them by the relevant advisory body." they may decide that a permit system is required. In which case it may be immaterial whether caving is an open air recreation or not.

http://www.legislation.gov.uk/ukpga/2000/37/section/26

Offline Stuart Anderson

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Re: Loss of cave access, CROW and other things
« Reply #266 on: March 22, 2013, 08:13:44 pm »
Camping surely has the idea of actually staying on the land, rather than walking across it, taking photographs and suchlike?

Which is an interesting point. Camping (wild) has always (legally) required the permission of the landowner, yet who does? Go to Scotland (slightly different I guess) or Wales or the Lakes and it occurs all the time. Of course that doesn't make it right, but there is a tacit understanding that in certain areas it happens with no problems (in accordance with some inferred "rules" - above a certain height, no base camping, no fires etc.). Camping
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Offline martinr

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Re: Loss of cave access, CROW and other things
« Reply #267 on: March 22, 2013, 08:17:10 pm »
CROW ACT:

http://www.legislation.gov.uk/ukpga/2000/37/section/20

Quote
20 Codes of conduct and other information.

(1)In relation to England, it shall be the duty of the Countryside Agency [now Natural England] to issue, and from time to time revise, a code of conduct for the guidance of persons exercising the right conferred by section 2(1) and of persons interested in access land, and to take such other steps as appear to them expedient for securing—

(a)that the public are informed of the situation and extent of, and means of access to, access land, and
(b)that the public and persons interested in access land are informed of their respective rights and obligations

Natural England guidance:

http://www.naturalengland.org.uk/Images/05_important_information_for_access_users_FAQ_tcm6-26818.pdf

Quote
The media sometimes use the phrase 'right to roam'. Does this mean I can go where I
want?

Under the CROW Act people can walk, responsibly and subject to some common sense
restrictions, over areas of open country and registered common land in England and Wales.

These areas are included in the access land shown on OS Explorer maps and on the Crow
Access Maps website.

The legislation only provides a new right to walk over ‘access land’.

 ‘Access land’ is land that has been shown by the Countryside Agency on conclusive maps of open country and registered
common land, or land that has been voluntarily dedicated for CROW access. It excludes
excepted land and CROW Section 15 land.

You have a right to walk OVER access land. Not UNDER access land

QED

« Last Edit: March 22, 2013, 08:26:05 pm by martinr »

Offline langcliffe

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Re: Loss of cave access, CROW and other things
« Reply #268 on: March 22, 2013, 08:17:28 pm »
Landowners can exclude people from CRoW land - sometimes temporarily but for the purposes of nature conservation and heritage preservation they can exclude or restrict access for any period, i.e. to help conserve the "flora, fauna or geological or physiographical features of the land in question"

No they can't - only the " relevant authority" can. I had already highlighted the issues raised by this Section of the legislation in an earlier post in answer to a question from Alex.

Offline graham

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Re: Loss of cave access, CROW and other things
« Reply #269 on: March 22, 2013, 08:26:05 pm »
Quote
    ‘Access land’ is land that has been shown by the Countryside Agency on conclusive maps of open country and registered common land, or land that has been voluntarily dedicated for CROW access. It excludes excepted land and CROW Section 15 land.

With the exception of Ingleborough Cave which has been on the OS map for a century or so, are any other caves actually visible on the relevant maps?

Just asking.

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Offline steviet_scg

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Re: Loss of cave access, CROW and other things
« Reply #270 on: March 22, 2013, 08:39:51 pm »


No they can't - only the " relevant authority" can. I had already highlighted the issues raised by this Section of the legislation in an earlier post in answer to a question from Alex.

Apologies Langcliffe - on two counts - one I missed your earlier post (there was a lot of posts!) and secondly - yes, you are right and the relevant authority would either be the national park authority or the appropriate countryside body (or possibly the Forestry Commission).

Offline langcliffe

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Re: Loss of cave access, CROW and other things
« Reply #271 on: March 22, 2013, 08:41:18 pm »
QED

I did actually discuss the guidelines with a chap from DEFRA a few years ago, and he said that they were an interpretation, and had no legal standing. He went on to say that it would require a High Court judgement to determine whether a specific activity  was permitted or not.

Offline martinr

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Re: Loss of cave access, CROW and other things
« Reply #272 on: March 22, 2013, 08:45:10 pm »
QED

I did actually discuss the guidelines with a chap from DEFRA a few years ago, and he said that they were an interpretation, and had no legal standing. He went on to say that it would require a High Court judgement to determine whether a specific activity  was permitted or not.

Your man from DEFRA got it wrong then.

CROW requires NatEng to issue guidance. Their guidance says you can walk OVER access land. Until they revise their guidance, that is the state of the law.

Offline langcliffe

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Re: Loss of cave access, CROW and other things
« Reply #273 on: March 22, 2013, 08:49:37 pm »
would either be the national park authority or the appropriate countryside body (or possibly the Forestry Commission).

The legislation is quite specific about what constitutes a "relevant authority" in these circumstances - English Nature and the Historic Buildings and Monuments Commission for England in England, and the Countryside Council for Wales and the National Assembly for Wales (depending on the protection required).

The Forestry Commission and National Parks are not relevant authorities.

Offline langcliffe

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Re: Loss of cave access, CROW and other things
« Reply #274 on: March 22, 2013, 08:58:36 pm »
Your man from DEFRA got it wrong then.

CROW requires NatEng to issue guidance. Their guidance says you can walk OVER access land. Until they revise their guidance, that is the state of the law.

Well, I wouldn't like to get involved in too earnest a discussion on this, but I think that the point the guy was making was that whilst Natural England are obliged to provide guidelines, those guidelines can be challenged in the High Court.

It's exactly the same with the Inland Revenue. They are obliged to interpret tax law, but their interpretation is often challenged in the courts by those that can afford to. Neither the Inland Revenue nor Natural England have the power to legislate.