Author Topic: Discussion on the post "The effect of changes in liability for Landowners under"  (Read 21559 times)

Offline jasonbirder

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Whilst this is all very interesting...

Could someone please explain (in simple terms) how a landowners liability for works he allows to be carried out on his land will differ between now and if CRoW is interpreted to cover caving?

Presumably, currently there is a hypothetical but extremely unlikely scenario that exists where a landowner may be considered liable if someone falls down a shaft on his land that is isn't fenced off/marked with warning signs...and similarly there is a potential but unlikely scenario where he could be held to account if a capped entrance/lidded shaft/dig he allowed to be constructed on his land fails causing injury or death...

How will that scenario be any different if CRoW is interpreted to include caving?

Surely it will be EXACTLY the same?

Offline paul

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Please refer to this thread which is locked and stickied at the top. In many ways I wish the topic was not locked so I could post as serious reply, is it not possible for the moderators to "moderate" all posts to a particular thread before they publish them?
Global Moderator Comment In short: no.The posts of the vast majority of UKCaving.com members appear as soon as they press the "Post" button. A few, because of "misdemeanours" in the past, have been placed on "Moderated" status and their posts go to a "holding area" and are only then seen by everyone once a Moderator has approved the post. I don't think it would be popular with everyone of their posts didn't appear until they have been approved. We Moderators have other things to do in our lives (including caving - I have just returned from a weekend in the Dales and am on the Forum inbetween sorting out dirty caving gear and getting something to eat...) rather than spend hours reading every single post within a reasonable time and then approve them. We just expect users to abide by the Forum Acceptable Use Policy and to keep on topic and not to have slanging matches and petty personal bickering. If this were to be the case, ther would be no need for Moderation... :)
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Offline Bottlebank

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No one has discussed the liability of diggers here. Why would the digger not be part of any claim?

The land owner could argue that all but what was visible from the surface was down to the diggers as the landowner was never informed of the extent or nature of the dig.

Read the post I made earlier - "You need to think outside the box. Imagine for example the position if a group of D of E award kids who got lost in bad weather [sorry Bograt - walkers], spotted a dig, decided to shelter and one fell down a twenty metre shaft? The landowner would almost certainly be covered if it were an entirely natural entrance, but if he had allowed the entrance to be dug he would potentially be liable, as would the diggers."

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Offline mmilner

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No one has discussed the liability of diggers here. Why would the digger not be part of any claim?

The land owner could argue that all but what was visible from the surface was down to the diggers as the landowner was never informed of the extent or nature of the dig.

Read the post I made earlier - "You need to think outside the box. Imagine for example the position if a group of D of E award kids who got lost in bad weather [sorry Bograt - walkers], spotted a dig, decided to shelter and one fell down a twenty metre shaft? The landowner would almost certainly be covered if it were an entirely natural entrance, but if he had allowed the entrance to be dug he would potentially be liable, as would the diggers."

No the diggers would be liable. The landowner probably wouldn't know exactly what the situation was. If you are digging a 20m shaft YOU are responsible for making it safe and that means secure fencing/walling and hazard warning signs around the dig. This is  standard H&S stuff. (And common sense!)
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Online Mark Wright

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Using a bit of common health and safety sense, as Mel suggests, and installing and maintaining a suitable fence around the open dig would remove the hazard completely and so there should be no worries about liability as the accident would never happen.

If the diggers didn't secure the open dig and somebody did fall down and subsequently make a claim then the diggers will deserve everything that comes their way. I think it would be more likely though that the landowner would be held responsible. Not knowing what was going on on his land would certainly be no defence in court. The landowner would likely also be a lot richer than the diggers so the landowner would be the best person to try and claim from. The landowners insurers may well come knocking on the diggers door.

A test case would be the only way of knowing for sure so best put a fence up and cover everyones arses.

Mark

Offline mmilner

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Yep, Mark is probably spot on!
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Offline Bottlebank

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Yep, Mark is probably spot on!

Mel,

Mark is pretty much spot on, when digs on SSSI's are consented it's the landowners that receive consent to carry out work - at least according to the one's we have permission for - which makes the liability his as well as the diggers - who effectively act as "contracters" for the work carried out.

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Offline grahams

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Regarding SSSIs, the landowner often receives not inconsiderable sums of money from DEFRA to maintain the land to their requirements. The maintenance is periodically inspected by DEFRA. The owner of the SSSI behind our house for example, has to ensure that glade runs are maintained for rare butterflies and that the land is not over or under grazed. It's possible that our digging activities might be at odds with those requirements. DEFRA's MAGIC map provides a wealth of information regarding SSSIs, rights of way and CRoW amongst a mass of other information.

In addition, some limestone areas are protected by Limestone Pavement Orders. This could affect digs on places such as Scales Moor where shakeholes occur adjacent to pavement. See http://www.limestone-pavements.org.uk/legal.html.
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Offline mmilner

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Hmmm. Interesting points made above. Thanx. So on SSSIs diggers are effectively non paid contractors doing work for the landowner cos they consented to it...  :-\ Never thought of it like that...  :-\

Actually, that would explain why the National Trust require us to have BCA insurance before doing any work on their land...
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Offline Bottlebank

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Hmmm. Interesting points made above. Thanx. So on SSSIs diggers are effectively non paid contractors doing work for the landowner cos they consented to it...  :-\ Never thought of it like that...  :-\

Actually, that would explain why the National Trust require us to have BCA insurance before doing any work on their land...

Mel,

That's my understanding, but other may be able to shed more light on it.

The wording of the applications and consents I have is in the following format:

"To:
Landowner
Of:
Landowners Address
Natural England gives you consent to carry out, cause or permit to be carried out the operations as specified in the notice dated ../../...., on the land as specified in the notice :-"

I assume this is a fairly standard wording that would also be used for works carried out by a paid contracter.
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Offline Bottlebank

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Whilst this is all very interesting...

Could someone please explain (in simple terms) how a landowners liability for works he allows to be carried out on his land will differ between now and if CRoW is interpreted to cover caving?

Presumably, currently there is a hypothetical but extremely unlikely scenario that exists where a landowner may be considered liable if someone falls down a shaft on his land that is isn't fenced off/marked with warning signs...and similarly there is a potential but unlikely scenario where he could be held to account if a capped entrance/lidded shaft/dig he allowed to be constructed on his land fails causing injury or death...

How will that scenario be any different if CRoW is interpreted to include caving?

Surely it will be EXACTLY the same?

Sorry Jasonbirder, only just spotted this.

You are right the landowners liability for digging will be the same as now.

If you have a read of the statement at http://ukcaving.com/board/index.php?topic=17182.0 you'll see both sides accept that.

It's the implications of the reduction in liability for caving that cause concern.  Both sides also accept that the potential problems identified are real and that we could lose digging access and instructors could lose access, Bob doesn't feel this is a problem, I do (in a nutshell) be please read the statement in full - it explains it better than I am here.



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Offline mmilner

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I assume this is a fairly standard wording that would also be used for works carried out by a paid contracter.

Yep, I reckon u r probably right... Except then there would also be stuff about payment, H&S, etc. I guess.

I need to investigate this further with NE and Pete Mellors. Not on a national basis, just in my local area. It's all SSSI but no-one seems to know who 'owns' the river beds....

Oh, and I've just found out there are signed copies of DCAs access agreements, but they are not on the web site or in our access handbook. Will investigate further later this week...
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Online Aubrey

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There has not been a satisfactory reply to my question of potential landowner liability under CROW where the cave entrance has been dug,  i.e. it is not a natural feature.
If the cave entrance is not a natural feature then it seems likely that the cave cannot be considered to be covered by the CROW legislation, if that legislation does apply to caves.
Furthermore if the cave has been extended by digging then theoretically the extensions will not be accessible by right under CROW.
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Online Mark Wright

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Aubrey,

I would imagine most digs are natural features that have been enlarged. The same goes for any extensions within the cave that have been dug. Its not vey often that tunnels or shafts are driven through solid rock, except to get to the top of Titan!

Are you assuming a natural feature that has been enlarged is no longer a natural feature?

Mark

Offline graham

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Aubrey,

I would imagine most digs are natural features that have been enlarged. The same goes for any extensions within the cave that have been dug. Its not vey often that tunnels or shafts are driven through solid rock, except to get to the top of Titan!

Are you assuming a natural feature that has been enlarged is no longer a natural feature?

Mark



Mark

Firstly, any dig where naturally occurring sediment has been removed is clearly no longer a wholly natural feature. That will cover a significant proportion of British cave entrances.

Secondly, yes, a natural feature that has been enlarged is no longer a wholly natural feature. That will cover quite a few of the rest.

Oh, and Titan is by no means the only completely mined cave entrance. Manor Farm Swallet is another. The most recently used entrance to Lamb Leer is a third. I am sure there are quite a few examples around.

And here's a natural sink being enlarged and turned into a less than natural feature.

« Last Edit: October 27, 2014, 08:33:04 pm by graham »
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Online Aubrey

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Mark

Where the landowner has given permission for a cave dig to take place the postings above (about SSSIs) imply that he  is ultimately liable. Are you suggesting that a dig reverts to being a natural feature at some point and the landowners liability ceases?

Aubrey
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Online Mark Wright

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If the landowner has given permission (or not for that matter) then they will be ultimately liable for the cave dig. The liability is reduced by taking suitable and sufficient steps to remove the hazard with the installation and subsequent maintenance of a suitable and appropriate fence. If the diggers are doing their bit for landowner/caver relations they could take responsibility for the costs and erection and maintenance of the fence unless of course the landowner is a generous one or the local regional council has funds put aside for this.

I'm not suggesting that the dig 'reverts to being a natural feature', I'm suggesting (in most cases) its always been a natural feature. At some point in the past the sediments weren't there but it would still have been a natural feature. There are many cave entrances that have been heavily worn over the years by the passage of caving ropes cutting large grooves into the natural limestone feature. Does that mean those entrances are no longer wholly natural features?

Is 'Wholly Natural Feature' a term introduced to cause more confusion? Where did it come from?

Mark

 

Offline mmilner

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Is 'Wholly Natural Feature' a term introduced to cause more confusion? Where did it come from?

Mark

Blimey Mark, that is as bad as the term 'Open air recreation'! But a good point all the same. Is it in the CRoW legislation. Bob M would know, I'm sure...
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Offline bograt

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Someone may correct me, but isn't Garden Path incorporated into the SSSI?
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Offline mmilner

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Someone may correct me, but isn't Garden Path incorporated into the SSSI?

yep, indeed it is. Don't think upper entrance is though. (just outside I think.) Jenny recently sent me an email about this, maybe  to you too. can't remember atm. Too tired to check, am going bed now, will check tmrw. bysies.  :sleeping: (Just hope the neighbours keep quiet now, grrr.)
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Online Aubrey

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If the landowner has given permission (or not for that matter) then they will be ultimately liable for the cave dig.


If the dig is successful and vast natural cave passages are found somewhere below, the site is still a dig with landowner liability and therefore there is not open access under CROW.

Are you suggesting there is some point when this changes? If so where is that defined?


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Offline tony from suffolk

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If caves are to be regarded as CRoW, then by digging into them you're creating access to that facility. And I doubt if there are many "Wholly Natural" features in the UK.
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Offline graham

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If the landowner has given permission (or not for that matter) then they will be ultimately liable for the cave dig. The liability is reduced by taking suitable and sufficient steps to remove the hazard with the installation and subsequent maintenance of a suitable and appropriate fence. If the diggers are doing their bit for landowner/caver relations they could take responsibility for the costs and erection and maintenance of the fence unless of course the landowner is a generous one or the local regional council has funds put aside for this.

None of which has anything to do with CRoW. What you are describing, as both Bottlebank and Aubrey have alluded to in the past is the situation as it is now. You seem to be agreeing that this liability will not change should CRoW be made to apply to caves.

I'm not suggesting that the dig 'reverts to being a natural feature', I'm suggesting (in most cases) its always been a natural feature. At some point in the past the sediments weren't there but it would still have been a natural feature. There are many cave entrances that have been heavily worn over the years by the passage of caving ropes cutting large grooves into the natural limestone feature. Does that mean those entrances are no longer wholly natural features?

"At some point in the past the sediments weren't there." At an earlier point the rock wasn't there, either. When do you want to draw the line?

Is 'Wholly Natural Feature' a term introduced to cause more confusion? Where did it come from?

Probably from me, in an attempt to cause less confusion. Seemingly unsuccessfully. The point was to try to point up the vast grey area between entrances such as Porth yr Ogof or Rowten Pot  which are pretty damned natural and ones such as Manor Farm Swallet and Titan which are anything but.

It would be my guess that it was the complex nature of such issues that inclined DEFRA not to include caves in CRoW in the first place.
« Last Edit: October 28, 2014, 07:25:15 am by graham »
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Offline graham

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Someone may correct me, but isn't Garden Path incorporated into the SSSI?

yep, indeed it is. Don't think upper entrance is though. (just outside I think.) Jenny recently sent me an email about this, maybe  to you too. can't remember atm. Too tired to check, am going bed now, will check tmrw. bysies.  :sleeping: (Just hope the neighbours keep quiet now, grrr.)

Mel

I checked the position of Garden Path a while ago & the entrance did seem to be well within the shaded entrance indicating access land on their map.

Edit: Yup just checked again. Assuming the grid reference SK 16508 65982 is correct then Garden Path is on access land. I got that NGR from this page.
« Last Edit: October 28, 2014, 07:24:40 am by graham »
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Offline bograt

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]

Edit: Yup just checked again. Assuming the grid reference SK 16508 65982 is correct then Garden Path is on access land. I got that NGR from this page.

So, in this instance at least, NE consider an excavated entrance on SSSI and CRoW to be a natural feature?
 We have a precedent.
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