If CRoW applies to caving - some comments

[droid]

MORE 'landowner restrictions'? Where do you get that from?

Most of the 'anti' comment has beed with regard to conservation, of the type operated in Water Icicle....

[jasonbirder]

Sorry! I forgot the inflection of every word and nuance was judged rather than its intent...

I meant Access at the vagaries of landowner and/or controlling club whims and wishes...leaving them the opportunity to either continue to restrict access or have the option to further restrict access in the future as they choose...as opposed to having the right to access granted and protected...

[droid]

AS LONG AS the cave is on Access land.

Not criticising/nitpicking here: it's a pretty big caveat....

[jasonbirder]

I though that was a given in a discussion about Countryside Rights of Way and Open Access Land

[bograt]

As I mentioned in a previous thread, I would like the committee to look into the historic aspect of reasons for access restriction.
 I suspect that the majority of restrictions in the South are there for conservation of cave features and, if so, a mechanism for their retention should be sought.
 The fell permit system in the North, however, I suspect is a relic of the private land/ grouse shooting moor period and has been largely superceeded by the CRoW act, and should be treated as such.
 These two examples are not mutually exclusive and can be approached and acted upon according to their respective merits.
 There will be other reasons for access controls but until the research is done these remain unidentified.

Maybe the committee could look into formulating a set of guidelines of acceptable reasons for controlling access?
NOTE; I said guidelines, NOT rules

[Simon Wilson]

As I mentioned in a previous thread, I would like the committee to look into the historic aspect of reasons for access restriction.
 I suspect that the majority of restrictions in the South are there for conservation of cave features and, if so, a mechanism for their retention should be sought.
 The fell permit system in the North, however, I suspect is a relic of the private land/ grouse shooting moor period and has been largely superceeded by the CRoW act, and should be treated as such.
 These two examples are not mutually exclusive and can be approached and acted upon according to their respective merits.
 There will be other reasons for access controls but until the research is done these remain unidentified.

Maybe the committee could look into formulating a set of guidelines of accepable reasons for controlling access?
NOTE; I said guidelines, NOT rules

I think Bograt is right about the historical reasons for restrictions. This a useful comment and might help us understand the different approaches in the different regions and appreciate better each other points of view. Let's all please get into the spirit in which Bob started this topic and attempt to move forwards in finding a mutually acceptable stance. BCA is national and the legislation is national so the BCA has to have national policy.

[jasonbirder]

Whilst investigating historic Access agreements and restrictions would be a useful and interesting excercise...

I don't see it having anything to do with the BCA's stance on whether to push for clarification on whether caving is included or excluded from CRoW

In fact I don't see what peoples interpretation of the act has got to do with whether BCA pushes for clarification and indeed pushes for it be be included or not...

As a representative body the BCA should find out what the majority of its members want and ally itself with their wishes...

[Simon Wilson]

Which is the point I was making earlier.... Both the CSCC and the CNCCare strongly "anti-CRoW".....

Yet would anyone really suggest that amajority of active Northern AND Southern Cavers are in favour of more landowner restrictions and against better access?

The CNCC are not strongly anti-CRoW. I think it would probably be fair to say they were but you can't say that now. What you can say is that at the May committee meeting they were strongly in favour of supporting the view that clarification of the law would be a good thing. You can say that because the motion to support the motion at the BCA AGM was accepted unanimously. That is all you can say with certainty.

Simon Wilson, EPC elected CNCC Representative.

[Simon Wilson]

Whilst investigating historic Access agreements and restrictions would be a useful and interesting excercise...

I don't see it having anything to do with the BCA's stance on whether to push for clarification on whether caving is included or excluded from CRoW

In fact I don't see what peoples interpretation of the act has got to do with whether BCA pushes for clarification and indeed pushes for it be be included or not...

As a representative body the BCA should find out what the majority of its members want and ally itself with their wishes...

The members wishes about what? The time for the national body to represent the members wishes about whether or not they wanted CRoW to include caves was back in the 1990s. The law was passed in 2000. The problem at the moment is that there is disagreement about what the law is. It is strictly a legal question and the cavers wishes are irrelevant. Or am I mistaken and can NE be swayed one way or t'other?

[bograt]

Whilst investigating historic Access agreements and restrictions would be a useful and interesting excercise...

I don't see it having anything to do with the BCA's stance on whether to push for clarification on whether caving is included or excluded from CRoW

In fact I don't see what peoples interpretation of the act has got to do with whether BCA pushes for clarification and indeed pushes for it be be included or not...

As a representative body the BCA should find out what the majority of its members want and ally itself with their wishes...

Short of having an open (and expensive) referendum to all members, the BCA has to go by what is decided at open council meetings, one of these meetings decided to formulate a CRoW working party in response to caver demand for clarification.
 This working party then went ahead under BCA's remit and this culminated in a QC's advice that caving should be included in the act.
 At the last BCA open council meeting, the decision to pass the matter over to the BCA C&A  committee was made.
 What we are now discussing is the direction we would like that committee to take in the light of these developments.

[jasonbirder]

Caving is in a bit of a Limbo isn't it...
Many Cavers assume CRoW applies to caving and have been caving on access land without permits etc for quite some period of time without any problems...
But as its not a specifically included or excluded activity there will always be some friction over it until the point is clarified one way or another...
Whilst there currently exists a QC's legal opinion over its inclusion (whilst persuasive) its not definitive until either it is tested in court of clarified at a legislative level...
While it shouldn't be the case...the BCA stating it assumes caving is covered by CRoW and strongly supports that MAY influence the final decision...
And would give heart and support to cavers who feel their national body support them...rather than Landowners...If the BCA came in behind CRoW and ultimately it wasn't included and the status quo remained I think we could all get behind it...its the feeling that the BCA wants "to throw its members to the wolves" that's galling...
Can you imagine the outcry from their members if the BCU didn't so everything in its power to push for increased access for paddlers?
I'd like to (and I'm sure many others are the same) see the same backing from OUR body

[bograt]

Caving is in a bit of a Limbo isn't it...
Many Cavers assume CRoW applies to caving and have been caving on access land without permits etc for quite some period of time without any problems...
But as its not a specifically included or excluded activity there will always be some friction over it until the point is clarified one way or another...
Whilst there currently exists a QC's legal opinion over its inclusion (whilst persuasive) its not definitive until either it is tested in court of clarified at a legislative level...
While it shouldn't be the case...the BCA stating it assumes caving is covered by CRoW and strongly supports that MAY influence the final decision...
And would give heart and support to cavers who feel their national body support them...rather than Landowners...If the BCA came in behind CRoW and ultimately it wasn't included and the status quo remained I think we could all get behind it...its the feeling that the BCA wants "to throw its members to the wolves" that's galling...
Can you imagine the outcry from their members if the BCU didn't so everything in its power to push for increased access for paddlers?
I'd like to (and I'm sure many others are the same) see the same backing from OUR body

So.... make some constructive suggestions about what you would like your representative to take to the meeting, I'm sure Mel would be interested, this persistent negative carping and criticism is just wasting forum space.

[kay]

While it shouldn't be the case...the BCA stating it assumes caving is covered by CRoW and strongly supports that MAY influence the final decision...

I thought the BCA's opinion was that it currently has no stance on CRoW?

[bograt]

While it shouldn't be the case...the BCA stating it assumes caving is covered by CRoW and strongly supports that MAY influence the final decision...

I thought the BCA's opinion was that it currently has no stance on CRoW?

You are right Kay, the only reference to CRoW recently by BCA is to refer it to the C&A committee who have not yet met on the subject.

[Oceanrower]

But, unless I've missed something, the clubs haven't canvassed the opinion of their members (me!)

I'm very pleased to report that one of my clubs (WCMS. Well done) has been in touch asking for feeedback.

As a complete aside, having looked at the CSCC website, I was slightly surprised to see the YSS as a member club. Bloody hell, the south is bigger than I thought!

[mmilner]

While it shouldn't be the case...the BCA stating it assumes caving is covered by CRoW and strongly supports that MAY influence the final decision...

I thought the BCA's opinion was that it currently has no stance on CRoW?

You are right Kay, the only reference to CRoW recently by BCA is to refer it to the C&A committee who have not yet met on the subject.

Yep, it's on the agenda to be discussed.  I know for a fact that there are individuals within BCA with differing views on this. (Ie:- pro or against.) But none on the C&A committee as far as I am aware, so hopefully we will be able to come up with a independent stance that BCA as a whole will have to accept. (I think!)

Also don't forget that the BCA C&A officer/convener also works for NE and I also know that a senior person at NE will be made aware of the results in due course by BCA as a national body.

Fingers crossed!

[Peter Burgess]

Apparently, according to the CSCC, I'm against CROW access.

Though I don't remember either of the clubs I belong to asking me.........

Apparently you have now received the request from me for your view. Your avatar does not look much like any of the three members who have responded - can I take your stated opinion on here as your reply? Or have you responded by email? Or on the WCMS forum? Only if by some miracle I get a significant number of replies how do I know if you haven't responded twice somehow?

[Oceanrower]

I replied at 14:28 today by email. Does that help to narrow it down? I will also pm you to make sure.

[Peter Burgess]

I got the request for our view from CCC via a CCC officer who happens to be a WCMS member - I took it more as a reminder to do something, but I was never directly asked in any kind of circular. Of course, it might be that the actual request was directed at our secretary. I don't know. However, an email went out yesterday (Friday) within minutes of the reminder. I am also now aware of the advice to contact reps etc that was posted up on this forum earlier. However, it passed me by, what will the dilution of the important posts with all the utter drivel that came with it. Our members are pretty good at responding to emails that are of interest to them, so if I don't get many replies, I can make a reasonable assumption on their level of interest in this matter. But I live in hope (not the place in Derbyshire).

Oceanrower - thanks. Please PM me - nothing has arrived.

[Peter Burgess]

Update- you message was dumped into Spam - so I do have it. Thanks once more.

[Bob Mehew]

Some people have been pressing me for access to the 'instructions'.  I am offering this statement to help them understand the context of what already is in the public domain with what is not.

My interest in this subject started back at the CNCC AGM when Tim made the curious statement that Natural England had declared caving on the surface was an open air recreation.  I did a fair amount of research into CRoW including using legal data bases to search for meanings of words and previous cases using these words.  By late May I had built up a large 13 page document detailing my thoughts, though several areas relating to consultation papers and debates were incomplete as I had not obtained copies of them then.

Around that time I then produced a document which can be seen as Appendix 1 to the CRoW Working Group report to the BCA AGM, read pages 22 to 27 in the Officers Reports at http://british-caving.org.uk/wiki3/lib/exe/fetch.php?media=about:documents:general_meetings:agm_reports_2014.pdf which was a reduced (13 to 6 pages) version of my main work.  (I did edit out a number of items, including a discussion about open air cremations for example, see http://www.bailii.org/ew/cases/EWHC/Admin/2009/978.html if you are that intrigued.  It concluded that one could design a building which was open to the air as is required by a Hindu burial belief!)  I then got drawn into producing the 'instructions' and never got around to completing my May document. 

I have indicated elsewhere that we are holding back on releasing the 'instructions' until we have sought legal advice.  But for those who would like to have an idea of what is in the 'instructions' then it comprises of an introduction and four Parts.  The introduction provides a brief history, organisation and nature of caving plus some basic statistics of the number of caves on access land.  Part 1 covers early legislation from the 19 century up to the 1939 Access to the Mountains Act.  Part 2 deals with the National Parks and Access to the Countryside Act of 1949 and CRoW covering not only the parliamentary debates but also the precursor consultation papers and so forth.  Part 3 covers a detailed consideration of CRoW focusing on the meaning of the two phrases 'access land' and 'open air recreation'.  Part 4 covers material issued by Natural England and some email exchanges.  The 'instructions' only asked 'Arising from this work comes the principle question of whether the right of access as provided for in the Countryside and Rights of Way Act applies to caving'.

Much of what is in the Working Group Appendix is based on my May document and is also in the 'instructions' at Parts 3 and 4.  I will admit that the May document and the Annex is a bit light on the material in Part 4 of the 'instructions' on Natural England since much of that was informed by Tim's work.

So if you are that interested you can get an appreciation of that part of the 'instructions' covering the legal argument Parts 3 and 4 by reading Appendix 1 mentioned above.  And apologies to those of you who have already done so. 

Work on the parliamentary debates was done in a hurry and only documented as full copies of the debates and 2 documents providing the internet links for each debate.  PM me with your email address if you want a copy of the links.   Various quotes were used in the 'instructions'.  The most significant quote from all the debates has already been quoted in discussion on this forum at http://ukcaving.com/board/index.php?topic=16816.msg221779#msg221779.  I would recommend reading that part of the debate which covers the proposed amendment which sought to define open air recreation and the Minister's response.

I have thought about bringing up to date my May document.  There are two problems.  The first is whether I should up date the May document or issue it with known errors which I don't have the time to correct.  The second is the May document contains very little of the results of the study of the parliamentary debates.  So I conclude I am reluctant to issue it.

[bograt]

Thanks for that Bob,I hope it will go some way to pacify the dissenters.

 I would, however, like to take this opportunity to emphasise that anyone wishing to make a relevant comment on the debate should make their contribution to their regional representative NOW, as the national committee meeting to decide policy is imminent. (16th August, next Saturday!)

[Bob Mehew]

See http://british-caving.org.uk/wiki3/lib/exe/fetch.php?media=conservation_access:c_a_committee_meeting_140816_papers.pdf which I think has just been put up.

[bograt]

Thaks for that Bob,
                             Must check who's carrying the vote for us,also would encourage other folk to do the same!.

[mmilner]

Thaks for that Bob,
                             Must check who's carrying the vote for us,also would encourage other folk to do the same!.

Me and Pete Mellors are the DCAs reps. I think we are now pretty much in agreement on policy. Andrew now has the DCA report to the C&A meeting.