Author Topic: Loss of cave access, CROW and other things  (Read 123307 times)

Offline Stuart Anderson

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Re: Loss of cave access, CROW and other things
« Reply #550 on: March 28, 2013, 08:47:50 pm »
If some concensus could be reached, initially at Regional Council level, then nationally, it would most certainly help ease the way towards solving most of the current problems cavers are experiencing with regard to access on CRoW land.

How about the putting up of one of those online surveys things (I would have no idea if such a thing is available apart from Googling)?

Facebook, Twitter, maybe this site (owners permitting of course), plus an email to all club secretaries to forward to members etc. Simple question, some background, pro's and con's.

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Offline danthecavingman

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Re: Loss of cave access, CROW and other things
« Reply #551 on: March 28, 2013, 08:50:36 pm »
Nig,

Apologies, could you please repost Dave Judson's statement to save me trawling through all 22 pages of this thread. In any case, surely the stance of BCA is irrelevant to any cavers not signed up to or affiliated with BCA. Much the same as Walkers and Climbers don't have to belong to the Ramblers Association, or the BMC.

Thanks,

Dan.
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Offline Stuart Anderson

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Re: Loss of cave access, CROW and other things
« Reply #552 on: March 28, 2013, 08:57:17 pm »
Nig,

Apologies, could you please repost Dave Judson's statement to save me trawling through all 22 pages of this thread. In any case, surely the stance of BCA is irrelevant to any cavers not signed up to or affiliated with BCA. Much the same as Walkers and Climbers don't have to belong to the Ramblers Association, or the BMC.

Thanks,

Dan.

Lifted from another post on this thread:

The BCA view towards access to caves on CRoW land is unequivocal.

If you look at page 29 of Descent dated June/July 2010 (No. 214), there is a short piece entitled "Cavers and the Land". Written by David Judson (who the editorial introduction says "deals with legal issues relating to caving on behalf of BCA") it says;

CRoW does not give legal access to caves.

and

The law in England and Wales is thus absolutely clear: access to caves, whether or not on CRoW land, is entirely at the discretion of the landowner.

The editorial (presumably written by Chris Howes) describes the entire piece as;

....a clear statement for cavers covering cave and land ownership.

Also, as emphasis to the main article, it advises:

It's worth a careful read: these are the laws that govern where you can cave, and when and why you require those all important permissions and landowner agreements.


It's relevant if you're a caver as you need permits and you have to be in a club to get permits - QED affiliated to BCA. Which is a particular gripe of a lot of individuals.
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Offline blackholesun

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Re: Loss of cave access, CROW and other things
« Reply #553 on: March 28, 2013, 09:00:20 pm »
Nig,
That is also my interpretation.
I agree that reaching consensus and having this discussed with the BCA would certainly be desirable. However I think the purpose that it would mainly serve is that it would help to create some cohesion and direction within the caving community on this topic.

However, to some extent, it makes no difference what BCA or CNCC or the general caving community think as this is a legal issue. We can't legislate or judge in any number. Neither can the LAF, though they may be able to suggest what those who can might say.

I think Dan is correct in saying that the situation is currently not complicated. Predictions of any future side effects are never easy though.

If someone wants to go caving in Gaping Gill tomorrow and doesn't have a permit, membership of a club or insurance, I don't think there has been a single thing said on this thread that could be told to them to conclusively convince them that they are not legally able to do this.

Offline mikem

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Re: Loss of cave access, CROW and other things
« Reply #554 on: March 28, 2013, 09:11:54 pm »
CroW doesn't give legal access to caves, it also doesn't specifically prevent you entering caves, a legal decision could go either way so "not upsetting the applecart" may prove to be the best policy - unfortunately there's only one way to find out...

Mike

Offline NigR

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Re: Loss of cave access, CROW and other things
« Reply #555 on: March 28, 2013, 09:28:01 pm »
First time that's happened! I was typing out a reply to Dan only to find that someone else has done it for me, spot on!

So I'll reply to Stu instead:

Yes, it is hoped that all the things you suggest can be put into play to help persuade the caving establishment that their interpretation of the Act is not only incorrect but, more importantly, not in the best interests of British caving. If you have any thoughts as to what points any survey should include or what the precise wording should be, please do send them on to me.


Blackholesun, we appear to be on the same wavelength. However, even though it does boil down to be a legal issue, it would be nice to be in a situation where the governing bodies, whether regional or national, show a willingness to interpret the legislation as it stands in a way which would benefit their members. This is not the case at the present time and we must attempt to change their minds. As Stu has said, we now need to find the best ways to go about this. So far as legality goes, I reckon anyone could go caving tomorrow on CRoW land anywhere in Britain totally unafraid of legal comebacks from any source, landowners included. The only threat of any repercussions comes directly from the body (BCA) supposedly set up to represent (and support?) cavers and I find this a really sad state of affairs.

Offline Stuart Anderson

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Re: Loss of cave access, CROW and other things
« Reply #556 on: March 28, 2013, 09:29:42 pm »
CroW doesn't give legal access to caves, it also doesn't specifically prevent you entering caves, a legal decision could go either way so "not upsetting the applecart" may prove to be the best policy - unfortunately there's only one way to find out...

Mike

The nuclear option isn't the only option Mike. Asking through the proper and relevant bodies needn't mean the apple-cart is turned upside down and torched.
I've roamed and rambled and I've followed my footsteps
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Offline mikem

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Re: Loss of cave access, CROW and other things
« Reply #557 on: March 28, 2013, 09:41:28 pm »
True enough, but it hasn't done canoeing much good so far, they asked & were denied (not that the story has concluded yet)...

Mike

Offline danthecavingman

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Re: Loss of cave access, CROW and other things
« Reply #558 on: March 28, 2013, 09:41:55 pm »
So, the BCA Statement says:

"CRoW does not give legal access to caves" - yes it does. Quite clearly.

"The law in England and Wales is thus absolutely clear: access to caves, whether or not on CRoW land, is entirely at the discretion of the landowner."

Please could somebody produce this piece of law, so that we may have some evidence on which to debate this matter further. I for one, do not believe, that is is written in English Law, that this is the case. The point I debate here is the statement "whether or not on CRoW land". Anyone can see that on private land with no public access then we have no right to cave and access is at the Land Owner's say so.

I take issue with the part of the statement in Descent that goes as follows: "Think about it: free access to caves and potholes would be quite inoperable (and dangerous) in many situations, including such popular sites as Gaping Gill, Lancaster Hole, Ogof Ffynnon Ddu and Swildon's Hole"

If you re-phrase this, it seems that BCA are deliberately upping the perceived difficulties and dangers of allowing people underground - "Think about it: people being able to walk freely over access land wherever they wanted would be quite inoperable (and dangerous) in many situations" - sounds silly doesn't it?

In regard to caving, it is not 'inoperable' as it does not need to be operated. The perceived notion of danger is irrelevant. Climbing, walking, running, whatever you are doing all carry inherent risks posed by hazards that are part of the natural environment be they cliffs, bogs, caves, potholes etc.

The examples cited are also misleading. OFD is very carefully managed by CCW in conjunction with SWCC as it is part of the OFD National Nature Reserve. Swildon's Hole is 'managed' by the charging of a trespass fee as it lies on Private Land.

Have BCA issued this 'statement' in order to try and get out of having to act on cavers' behalfs to ensure that we can cave on CROW Land? Presumably as they think the status quo is acceptable.

I will leave this debate if someone can prove to me that the right to cave or not is at the Land owners discretion. I don't believe it is.

I go back to my earlier posts that suggest that people are stuck in the olden days and are unwilling to risk perceived repurcussions. As cavers we should be pushing for the same rights as other recreational land users, not rolling over or cowering behind our beards and doing nothing....

If we push for better access and it is granted then fine. If we push for better access and it turns out we can't have it, then we are stuck with the permit system and will have to accept that.

Dan.
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Offline Stuart Anderson

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Re: Loss of cave access, CROW and other things
« Reply #559 on: March 28, 2013, 09:49:55 pm »
True enough, but it hasn't done canoeing much good so far, they asked & were denied (not that the story has concluded yet)...

Mike

Is the difference not that virtually all the good stuff to paddle is access or egress on private land? As in not access land.
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Offline danthecavingman

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Re: Loss of cave access, CROW and other things
« Reply #560 on: March 28, 2013, 09:57:56 pm »
Stu,

That is the case, also Private fishing rights and the conflicts of interest are very much at the heart of it.

D.
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Offline blackholesun

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Re: Loss of cave access, CROW and other things
« Reply #561 on: March 28, 2013, 09:59:49 pm »
It looks like at least some of us are willing to stick with the current system then, at least temporarily, despite having some serious misgivings with its necessity. And it seems as if there's motivation to take this up with the BCA and CNCC. I agree, it would be good to have dialogue with them. After all, they do work to secure access and have done some incredibly useful things for caving through a lot of hard work.

Whilst this is occurring has anyone thought about contacting any landowners? I know that some places only deal with national organising bodies. However, (I know I always use it as my example), the Ingleborough (Farrer) estate deals directly with cavers. Would it be useful to write to them to explain how we wish to cave on Ingleborough and understand that there is a permit system and have previously used it, but that it seems to be fundamentally at odds with the CROW act? Perhaps they disagree with its interpretation. Perhaps not. I'd be interested to know.

Offline mikem

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Re: Loss of cave access, CROW and other things
« Reply #562 on: March 28, 2013, 10:01:21 pm »
They are, but a lot of the good stuff for white water paddlers is on open access land but is now specifically excluded from access rights under CRoW in England and Wales, however, paddling on rivers is not excluded under general law...

Mike

Offline damian

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Re: Loss of cave access, CROW and other things
« Reply #563 on: March 28, 2013, 10:44:21 pm »
I have now read most of this thread and will attempt to deal with some of the points made. Of course this is my own understanding of BCA’s position, rather than an official BCA statement, but I am fairly confident it is an accurate summary.

1) BCA is thoroughly democratic and has getting on for 6,000 individual and 150 club members. This can make it a real challenge to reflect everyone’s views and BCA is guided by the AGM and the many representatives who make up Council. Whether people like it or not, the best way to express views is to attend a meeting and have your say. This is certainly something BCA would really welcome. BCA should not be referred to as “they” but “we”.

2) The Regional Councils and Constituent Bodies of BCA (ACI, ASCT, BCRA, BCRC, CDG, CHECC, NAMHO and WPCST) are totally independent and BCA has no say in the way they choose to operate.

3) BCA’s guidance on the CRoW Act is clear: it does not cover caving. Indeed CRoW specifically allows access for “open-air recreation” and there is good reason to think that a Court may well decide caving does not fit this definition. A landowner owns everything below their land all the way to the centre of the earth and cavers therefore need to continue to seek the landowner’s permission.

4) On the whole cavers have good relations with landowners and enjoy reasonable access as a result. However, if the CRoW Act were shown to cover caving, then it is felt that cavers would find it very difficult to secure permission for digs. If it were to be the case that a newly-discovered cave on their land would instantly bring a stream of cavers every weekend walking to a part of their land that generally sees few visitors, and this would continue ad infinitum, then many landowners would have to think very hard before agreeing to the dig. Given the importance of digs to caving, and the generally good access we currently enjoy to caves, BCA doesn’t feel it is actually in cavers’ best interests to risk everything by seeking to have caving included in CRoW.

You may or may not agree with the above, but at the moment it is the accepted democratic view. If you want to try to change this, then you know what to do.

Damian Weare
BCA Secretary

Offline Stuart Anderson

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Re: Loss of cave access, CROW and other things
« Reply #564 on: March 28, 2013, 10:58:19 pm »
Thank you Damian.

Since you're here, what would the objection be to losing the off season for fells? Or losing the need for mid week permits?
I've roamed and rambled and I've followed my footsteps
To the sparkling sands of her diamond deserts
And all around me a voice was sounding
This land was made for you and me

Offline Badlad

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Re: Loss of cave access, CROW and other things
« Reply #565 on: March 28, 2013, 11:08:17 pm »

An enlightening post - thank you Damian.

It will be a shock to many cavers to learn that the national caving body think open access is not in their interests.  It doesn't represent a view I hear around here and one which will leave my BMC access officer friends dumbfounded!


Offline Stuart Anderson

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Re: Loss of cave access, CROW and other things
« Reply #566 on: March 28, 2013, 11:11:23 pm »
Thinking on about some of the issues Damian has reminded us; how about open CRoW on what is already available and permits for new entrance/system or a fixed period of time?
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Offline Rhys

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Re: Loss of cave access, CROW and other things
« Reply #567 on: March 28, 2013, 11:15:00 pm »
Now might be a good moment to re-post a link to the Dave Judson/BCA statement from 2010 on CROW. It's on this I think the mentionend Descent article was based:

 http://www.british-caving.org.uk/membership/landownership+caves_240310.pdf

We discussed it here at the time:

http://ukcaving.com/board/index.php?topic=9925.0;nowap

Offline Oceanrower

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Re: Loss of cave access, CROW and other things
« Reply #568 on: March 28, 2013, 11:21:54 pm »

I take issue with the part of the statement in Descent that goes as follows: "Think about it: free access to caves and potholes would be quite inoperable (and dangerous) in many situations, including such popular sites as Gaping Gill, Lancaster Hole, Ogof Ffynnon Ddu and Swildon's Hole"


Unless it's changed recently (i.e. in the last week or so) access to Swildon's Hole does have free access.

That is, access is free to all rather than free of charge.

AFAIK it seems to be quite operable (and not overly dangerous)

Offline NigR

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Re: Loss of cave access, CROW and other things
« Reply #569 on: March 28, 2013, 11:25:46 pm »
Thanks for the statement, Damian.

That's fine, we'll do this without your assistance.

Offline timwatts

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Re: Loss of cave access, CROW and other things
« Reply #570 on: March 28, 2013, 11:36:56 pm »
I've been holding off this debate for some time but reading it with great interest and feel that perhaps its time to voice my opinions.

The real motive for the debate centers around access being restricted for whatever reason.

I'm sure that we all agree that in the perfect world all access would be free and open for everyone, everyone would be responsible and educated, nothing would get damaged and everything would be perfect. Obviously not the case.

There are of course times where some restriction to access may be appropriate. Be it a cave, a mine, a rock climbing cliff whatever.

The standard modus operandi to my mind with ANY underground (or above ground activity even) should be:

Open Access for all unless a VERY strong case can be argued for and agreed upon for locking something down. I.e. protect pretties from wanker kids etc. But even then make permission as 'easy as possible' for legit cavers to obtain (Obviously there will be a sliding scale based of the individual cave).

In many cases this is exactly the case and I applaud all those who work hard, with all the right intentions.

The problem arises when human nature causes things to slip slightly. We are inherently a greedy species and many of us are obsessed with possession, and lets face it, if you've busted your guts finding access to something wonderful its very very to turn round sometimes and give it all away - i know, I've been there.

Therefore in my mind the standard modus operandi with ANY underground (or above ground activity even) should be:

Open Access for all unless a VERY strong case can be argued for and agreed upon for locking something down. I.e. protect pretties from wanker kids etc. But even then make the permission as 'easy as possible' for legit cavers to obtain (Obviously there will be a sliding scale based of the individual cave).

I keep hearing the 'the' BCA isn't there to police issue but lets consider this for a moment. Indeed Damien appears to confirm this general stance above. However, the BCA DOES have a black and white defined responsibility regarding who and what it accepts as membership

Ultimately it is a primary condition of becoming a BCA member club that (taken directly from: british-caving.org.uk/?page=121):

"1) The club has a major aim or objective that is in support of the sport of caving, mine exploration, cave science, cave & mine conservation or caver training."

Clearly, a club not supporting the activities of other BCA clubs would be directly contravening this and to my mind i would expect the BCA to discipline and member/club found to be being obtuse to this concept - the final straw being withdrawn from the membership.

If you are having serious problems with other BCA clubs or access body in obtaining access (for no good reason) then I suggest in the first instance advise the said body of your intentions and then advise the BCA that the said body is contravening the conditions of membership and ask them to act as appropriate in order to reach a satisfactory outcome.

The point being that the bias for access arrangement needs to be towards 'open' and any club or access body who appears to be being awkward with regard to this concept (potentially for empire building/selfish reasons rather than for a well defined and explained 'real' reason) should of course be challenged and as I've said above, is contravening the primary condition of BCA club membership.

Perhaps the BCA needs to be a little bit more aggressive in terms of ensuring their membership adheres its existing set of 'rules'?

There is a level of responsibility at all levels and the BCA officials, Member clubs/Access Bodies and individual BCA members all need to have a think about it.

--

If you're controlling access to a hole in the ground, are you honestly acting in the right way? Have you got a very strong and honest requirement to keep people out?

If you are asking for access, are you getting a sensible reason for being denied access? If not are you going be be responsible enough to other cavers to challange things?

If you are a BCA official, are you sure that the BCA is ensuring its membership is abiding by its own rules and are you prepared to take a responsibility on behalf of other paying members to ensure they do?


These are my own personal opinions!

Tim.
« Last Edit: March 28, 2013, 11:51:23 pm by timwatts »
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Offline Martin Laverty

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Re: Loss of cave access, CROW and other things
« Reply #571 on: March 29, 2013, 02:54:28 am »
The Countryside Council for Wales (Welsh equivalent of Natural England) have packaged their views on CRoW in Wales in a Frequently Asked Questions booklet available as a PDF from this page : http://www.ccw.gov.uk/enjoying-the-country/open-access-land/restrictions-on-access-land.aspx?lang=en

They preface it with "The answers given are only a guide and should not be taken as a definitive statement of the law." (my emphasis) but go on to explicitly ask "Does access on foot include pot holing and caving?" and reply "No. As the CRoW Act covers access for the purposes of open-air recreation, potholing and caving are not included in the right."

Oh dear - one wonders how much influence the BCA's legal officer's view influenced that answer.

In answer to a point raised earlier: "Is land worth less because it has been mapped as access land?" they reply that "There is no evidence that land is worth less as a result of the CRoW Act." OK, it doesn't mention caving - but for such a minority interest why would it?

On the effect on landowner's liablity thy ask "How does owners’ and occupiers’ liability change because land is accessible under the CRoW Act?" and reply "Occupiers are liable for the safety of people on their land under existing legislation. However, the CRoW Act changes the law so occupiers will have no duty of care in respect of risks that arise from natural features, rivers, streams, ponds, cliffs, ditches, or misuse of walls, fences or gates on their land, unless they deliberately created the risk or recklessly allowed it to arise. ..." You can't get less liable than that, and a cave is certainly a natural feature (with natural ventilation which is surely related to the free circulation of open-air).

And what of the sanctions available if disappearing underground were judged to be outside the implicit rights?
"How is trespass dealt with under the Act?" - "People who do not observe any exclusions or restrictions imposed on access land are trespassers and may be asked to leave by the landowner, occupier or someone empowered by any byelaws that may also apply to the land (e.g a warden). Their right of access to the land in question and to any other land in the same ownership is automatically suspended for 72 hours. Trespass on access land continues to be a civil wrong. However, breach of any byelaw, which can be enforced by wardens, would be a criminal offence with small penalties." Has anyone come across byelaws applicable to caving?

It does seem perverse to me that the BCA do not declare an explicit wish to for their Access Officer to promote the mutual goodwill of cavers towards landowners so as to move towards a general presumption of minimally-fettered access to caves, except for exceptional cases where archaeological or scientific factors come into play. Without the National Body on their side, how much harder it must be for the Regional Bodies to provide authoritative backup should it be asked for? And, while those who serve to sort out access squabbles and dole out permits and keys, replace locks, gates, etc. are doubtless to be thanked for their efforts, surely some should ponder whether the effort is always justified or just fossilised tradition?

Offline Badlad

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Re: Loss of cave access, CROW and other things
« Reply #572 on: March 29, 2013, 06:58:44 am »

It would be very useful if BCA would continue to engage with this debate.

One observation I have is that BCA appears to support a restrictive access system on CRoW (Leck Fell for example) because to allow open access may diminish cavers rights to dig new caves or entrances.  However, in South Wales, around Ogof Draenan doesn't BCA support a restrictive access system which discourages cavers from digging new caves or entrances to the point of filling them in with concrete.  Not very consistant and possible to drawn the conclusion that 'supporting restrictive access' is the common theme.  I really hope this isn't the truth.


Offline Pitlamp

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Re: Loss of cave access, CROW and other things
« Reply #573 on: March 29, 2013, 07:23:22 am »
Our national body has a system for having such things properly discussed.

Why not go to a meeting and ask? I'm sure you'll be made very welcome and taken seriously.

Offline mikem

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Re: Loss of cave access, CROW and other things
« Reply #574 on: March 29, 2013, 07:50:05 am »
On the effect on landowner's liablity thy ask "How does owners’ and occupiers’ liability change because land is accessible under the CRoW Act?" and reply "Occupiers are liable for the safety of people on their land under existing legislation. However, the CRoW Act changes the law so occupiers will have no duty of care in respect of risks that arise from natural features, rivers, streams, ponds, cliffs, ditches, or misuse of walls, fences or gates on their land, unless they deliberately created the risk or recklessly allowed it to arise. ..." You can't get less liable than that, and a cave is certainly a natural feature (with natural ventilation which is surely related to the free circulation of open-air).
The problem arises that many entrances were naturally blocked and have been dug out, so it's not as clear cut as that...

Mike

 

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