Author Topic: Discussion on the post "The effect of changes in liability for Landowners under"  (Read 21573 times)

Offline graham

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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.

Do they? A citation would be nice.
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Offline al

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Not sure what Garden Path has to do with this discussion at all.
Yes it was excavated, but it doesn't constitute a danger to the public as it is locked.
Mind you, I'm surprised where the brown Crow access line is drawn here, as Garden Path is obviously in pasture - I suppose it's to do with the walls and other boundaries.
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Offline graham

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Not sure what Garden Path has to do with this discussion at all.
Yes it was excavated, but it doesn't constitute a danger to the public as it is locked.
Mind you, I'm surprised where the brown Crow access line is drawn here, as Garden Path is obviously in pasture - I suppose it's to do with the walls and other boundaries.

Won't be locked for long if some folks get their way ...
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Offline Bob Mehew

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Apologies for the delay in response but my weekend was wiped out by a family emergency and am just recovering from the aftermath.

Re natural feature. 

Sec 13 which amends the Occupiers Liability Acts states:

6(A) ...an occupier of the land owes (subject to subsection (6C) below) no duty by virtue of this section to any person in respect of—
(a) a risk resulting from the existence of any natural feature of the landscape, or any river, stream, ditch or pond whether or not a natural feature, or
(b) a risk of that person suffering injury when passing over, under or through any wall, fence or gate, except by proper use of the gate or of a stile.

(6B) For the purposes of subsection (6A) above, any plant, shrub or tree, of whatever origin, is to be regarded as a natural feature of the landscape.

(6C) Subsection (6A) does not prevent an occupier from owing a duty by virtue of this section in respect of any risk where the danger concerned is due to anything done by the occupier—
(a) with the intention of creating that risk, or
(b) being reckless as to whether that risk is created.”

 
Re CRoW applying to dug entrances, I claim dug entrances are a means of access, see http://ukcaving.com/board/index.php?topic=17137.msg225933#msg225933 but I fear only the courts will resolve this question which will depend upon the specific case. 

Re land owner liability re digs, my line of thinking is that it will depend upon what was agreed between the diggers and the land owner.  (And that could be either a verbal or written agreement.)  If the diggers agreed to fence the dig, then the state of the fence is the diggers liability and more importantly, their continued responsibility for keeping it in a satisfactory condition until they die or end the agreement.  My expectation is that under most casual agreements,  one might consider the diggers as 'occupiers'.  (After all they are depriving the land owner his normal right of use of that patch of land.)  And as a consequence, the SSSI PDO would apply to the diggers, as well as the land owner since W&C Sec 28E does say "The owner or occupier".  I am not sure if the diggers acting as a contractor would materially change this situation, though it would bring in other legal demands, notably H&S.  If no agreement was obtained, then the diggers could be construed as squatters and hence occupiers.  However following the squat / dig, I think the liability would then fall back onto the land owner for not removing the risk from the dig (who could then sue the diggers for the expense in doing so).     


Offline graham

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Bob, here's a thing. Instead of giving us yet more of your opinions, why not ask a proper lawyer?
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Offline bograt

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Bob, here's a thing. Instead of giving us yet more of your opinions, why not ask a proper lawyer?

Maybe because even a 'proper lawyer''s decision will only be poo-poo'ed as another opinion, as Bob and others have said; ' I fear only the courts will resolve this question which will depend upon the specific case.'

Mind you, I'm surprised where the brown Crow access line is drawn here, as Garden Path is obviously in pasture - I suppose it's to do with the walls and other boundaries.

The area is designated NNR SSSI on two counts ; 'Earth Heritage' i.e. the caves, and 'Calcerous Grassland' i.e. the plantlife. When drawing up the CRoW map, they used the NNR boundary.
« Last Edit: October 29, 2014, 12:42:42 pm by bograt »
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Offline Aubrey

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Bob quotes the following from the CROW legislation:


6(A) ...an occupier of the land owes (subject to subsection (6C) below) no duty by virtue of this section to any person in respect of—
(a) a risk resulting from the existence of any natural feature of the landscape, or any river, stream, ditch or pond whether or not a natural feature, or
(b) a risk of that person suffering injury when passing over, under or through any wall, fence or gate, except by proper use of the gate or of a stile.

All of that was written without any consideration of many cave entrances.
It is wishful thinking that these paragraphs could encompass any but naturally open caves, whether or not they have a gate fitted.

Just imaging the reaction in a court of law if someone was suggesting a shaft dug using explosives and supported with scaffolding and pipes was a natural feature.

The legal position needs to be clarified !!

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Offline graham

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Just imaging the reaction in a court of law if someone was suggesting a shaft dug using explosives and supported with scaffolding and pipes was a natural feature.

The legal position needs to be clarified !!

I quite agree, sadly some cavers don't really understand the issue.
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Offline Peter Burgess

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Stepping back from the detail, is not liability simply related to something a person has done or built, which differentiates "natural" from "not natural". So any alteration to anything that would otherwise be considered "undisturbed" involves a degree of liability.

Offline Aubrey

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Stepping back from the detail, is not liability simply related to something a person has done or built, which differentiates "natural" from "not natural". So any alteration to anything that would otherwise be considered "undisturbed" involves a degree of liability.

Yes, exactly so - the landowner would be liable for any cave opened by digging and not covered by the CROW legislation.


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Offline Bottlebank

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Stepping back from the detail, is not liability simply related to something a person has done or built, which differentiates "natural" from "not natural". So any alteration to anything that would otherwise be considered "undisturbed" involves a degree of liability.

Yes, exactly so - the landowner would be liable for any cave opened by digging and not covered by the CROW legislation.

I think there are several separate issues here clouding this.

Does the landowner have liability in the following situations:

1. Caves that are already open - yes at the moment and probably not under CRoW

Will all caves that have been dug open prior to CRoW applying be treated as a natural feature, if not then:
 
2. Caves that have been previously dug open - does the landowner still have liability for the dug section under CRoW - I think yes but needs checking
3. Caves that have been previously dug open - does the landowner still have liability for the cave beyond the dug section under CRoW - needs checking - as Bob says the dig may be considered an entrance - but then again it may not

Then we have:

4. Digs started pre CRoW and not concluded prior to CRoW - yes
5. Digs started post CRoW - yes

And...

6. Caves that are dug open post CRoW - again does the landowner have liability for the cave beyond the dug section - possibly but needs checking - as 3.
7. Does all of this depend on the nature of the dig - i.e. if a few boulders were simply moved aside is this different to a blasted and shored shaft?

Should the BCA be getting legal advice on this sort of thing - in my view probably yes, and it should be published prior to the referendum.

Tony

Re CRoW applying to dug entrances, I claim dug entrances are a means of access, see http://ukcaving.com/board/index.php?topic=17137.msg225933#msg225933 but I fear only the courts will resolve this question which will depend upon the specific case. 


Bob,

Would it be fair to rephrase that as you saying you suspect in certain circumstances the courts will not consider dug entrances to be simply a means of access? If so I think I'd agree.

All that said the main concern I have is that post CRoW landowners are more likely to refuse to accept liability for digs, more likely to consult their legal and insurance advisers (legal advice is free of charge to members of the CLA) and no solicitor worth his salt is going to advise his client to accept liability when there is no real benefit to him, and no need to do so. Diggers and professional cavers will almost certainly find it more difficult to get permissions.

At the same time it seems possible we'll have a drawn out Angler/Canoeist scenario which will make things even worse.

All of this to get easier access to a few areas and access to a handful of caves currently closed.

Tony
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Offline bograt

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There are more situations to consider;

1. At the moment the landowner is responsible, hence liable, for everything under his land, including cave passage, if caves are incuded in the act, this liability will be lifted.

2. If a dig goes into an existing system (Garden Path, Titan etc.) it could be considered an alternative entrance and may carry different rulings to one that breaks into a completely new system.

3. If a farmer puts down hardcore in a gate entrance on CRoW land to improve access, then a rambler twists his ankle on that hardcore, who is liable?


I do wish people would stop comparing our situation to that of the anglers/canoeists, that controversy is between two bodies vying for the same resource and has no comparison with our case.
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Offline Bottlebank

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I do wish people would stop comparing our situation to that of the anglers/canoeists, that controversy is between two bodies vying for the same resource and has no comparison with our case.

Fair enough, at the same if we're unlucky we'll beginning a long, heavily contested campaign which may last many years and lead to loss of access, do huge damage to landowner/caver relations and everything will be a right mess!

All of this to get easier access to a few areas and access to a handful of caves currently closed.
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Offline graham

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All of this to get slightly easier access to a few areas and possible access to a handful of caves currently closed.

Fixed that for you.
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Offline graham

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The area is designated NNR SSSI on two counts ; 'Earth Heritage' i.e. the caves, and 'Calcerous Grassland' i.e. the plantlife. When drawing up the CRoW map, they used the NNR boundary.

None of which indicates that the entrance itself is indicated as a natural feature.
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Offline Bottlebank

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All of this to get slightly easier access to a few areas and possible access to a handful of caves currently closed.

Fixed that for you.

Much better :-)

It might be interesting to put up a poll on here to see if we can tease out an idea of how people might vote?
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Offline bograt

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[Fair enough, at the same if we're unlucky we'll beginning a long, heavily contested campaign

Err, Excuse me, But as I understand it the vote is whether to continue with this approach, if the vote is no, then BCA will look for alternatives, they will not 'contest heavily', cavers are not like that!!!!
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Offline mmilner

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I do wish people would stop comparing our situation to that of the anglers/canoeists, that controversy is between two bodies vying for the same resource and has no comparison with our case.

Fair enough, at the same if we're unlucky we'll beginning a long, heavily contested campaign which may last many years and lead to loss of access, do huge damage to landowner/caver relations and everything will be a right mess!

All of this to get easier access to a few areas and access to a handful of caves currently closed.

With  all due respect Tony, that is is ridiculous.  Nobody  will be doing any 'heavily contested campaigns'..  It  will be done  (negotiated) with respect and  in consultation with the  landowners through the  regional councils  and their  officers.

There may be the odd 'loose cannon' if  you know what I mean, but  the vast majoriity of landowners / tenants / estates will only now deal with  with officially recognised people from   bodies such as the regional  councils or BCA, the  national caving  organisation, representing us and which includes  some very  experienced  and respected cavers.

Norbert Casteret (Ten Years Under the Earth) and Pierre Chevalier (Subterranean Climbers) were my inspiration to start caving. (And I'm still doing it.) Secretary, Darfar Potholing Club, the Peak District.

Offline bograt

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The area is designated NNR SSSI on two counts ; 'Earth Heritage' i.e. the caves, and 'Calcerous Grassland' i.e. the plantlife. When drawing up the CRoW map, they used the NNR boundary.

None of which indicates that the entrance itself is indicated as a natural feature.

These facts were intended as an explanation to the reason for the boundary, you have turned it into a political issue, maybe you should provide us with some FACTS?????
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Offline graham

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The area is designated NNR SSSI on two counts ; 'Earth Heritage' i.e. the caves, and 'Calcerous Grassland' i.e. the plantlife. When drawing up the CRoW map, they used the NNR boundary.

None of which indicates that the entrance itself is indicated as a natural feature.

These facts were intended as an explanation to the reason for the boundary, you have turned it into a political issue, maybe you should provide us with some FACTS?????

I'm not turning into a political issue I'm asking you to give some facts to back up this post:

]

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.

Where you stated an opinion and then scuttled away, despite my asking you to back up this opinion with a citation from NE.
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Offline caving_fox

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Should the BCA be getting legal advice on this sort of thing - in my view probably yes, and it should be published prior to the referendum.

The referendum isn't on whether CROW applies to caving. It is on whether the BCA should investigate whether CROW applies to caving and implications that might have.

There's no point in the BCA doing vast amounts of legal research if the majority of cavers turn round and say no we're happy with the status quo. That there are potential issues with liability - sure that needs to be raised as something to bear in mind, as one of the issues the BCA will have to investigate.
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Offline Bottlebank

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[Fair enough, at the same if we're unlucky we'll beginning a long, heavily contested campaign

Err, Excuse me, But as I understand it the vote is whether to continue with this approach, if the vote is no, then BCA will look for alternatives, they will not 'contest heavily', cavers are not like that!!!!



Damian Weare has stated that the referendum question is:

"1) The question will be: "Should BCA, on your behalf, campaign for The Countryside and Rights of Way Act (2000) to apply to going underground?" The options will be "yes" or "no"."

We'll only find out if there will be a contested campaign if the answer is "yes" and Defra stick to their view that caving is not covered. It's at that point some landowners may decide to contest this.

Defra may change their view straight away, or we may be campaigning for years - no one knows.

I do wish people would stop comparing our situation to that of the anglers/canoeists, that controversy is between two bodies vying for the same resource and has no comparison with our case.

Fair enough, at the same if we're unlucky we'll beginning a long, heavily contested campaign which may last many years and lead to loss of access, do huge damage to landowner/caver relations and everything will be a right mess!

All of this to get easier access to a few areas and access to a handful of caves currently closed.
With  all due respect Tony, that is is ridiculous.  Nobody  will be doing any 'heavily contested campaigns'..  It  will be done  (negotiated) with respect and  in consultation with the  landowners through the  regional councils  and their  officers.

There may be the odd 'loose cannon' if  you know what I mean, but  the vast majoriity of landowners / tenants / estates will only now deal with  with officially recognised people from   bodies such as the regional  councils or BCA, the  national caving  organisation, representing us and which includes  some very  experienced  and respected cavers.

Mel,

See above, I think you've missed the point.

You seem to be detailing what would happen if Defra change their view. Actually you're describing the largely sensible process that goes on now. Telling a landowner his access agreement is toast and no longer applies isn't really negotiation at all.
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Offline graham

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Good post, Bottlebank.  :thumbsup:
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Offline mmilner

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Mel,

See above, I think you've missed the point.

You seem to be detailing what would happen if Defra change their view. Actually you're describing the largely sensible process that goes on now. Telling a landowner his access agreement is toast and no longer applies isn't really negotiation at all.

No, I think u r missing the point. No-one who is involved in C&A in any of the regional councils or BCA will go to a landowner and say your "access agreement is toast and no longer applies". They will continue to do what they do now and negotiate amicably and sensibly with said landowner! Most big landowners will only deal with 'officials' of those organisations, though that doesn't preclude individuals  negotiating agreements for access, digs, etc. In most places, nothing will change. Certainly not in the Peak.  :coffee:
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Offline graham

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Mel,

See above, I think you've missed the point.

You seem to be detailing what would happen if Defra change their view. Actually you're describing the largely sensible process that goes on now. Telling a landowner his access agreement is toast and no longer applies isn't really negotiation at all.

No, I think u r missing the point. No-one who is involved in C&A in any of the regional councils or BCA will go to a landowner and say your "access agreement is toast and no longer applies". They will continue to do what they do now and negotiate amicably and sensibly with said landowner!  :coffee:

I am willing to wager that you are wrong about that.
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