Author Topic: Drws Cefn- the next instalment?  (Read 10315 times)

Offline Brains

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Re: Drws Cefn- the next instalment?
« Reply #25 on: February 21, 2016, 12:48:20 pm »
AFAIK the coal board retained the mineral rights at the time of sale, therefore it can be reasonably argued that the present landowner is irrelevant to underground exploration or perhaps even surface digging.

If the cave was already (dug) open BEFORE the CRoW act became law, then that issue may prove to be a red herring.

With the current legal process, to wilfully block the entrance could be seen as contempt of court, being a malicious attempt to circumvent the law?

IMO a quick resoloution is the best way forward...

Offline martinr

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Re: Drws Cefn- the next instalment?
« Reply #26 on: February 21, 2016, 01:07:27 pm »
....

With the current legal process, to wilfully block the entrance could be seen as contempt of court, being a malicious attempt to circumvent the law?
.....

With respect, that is nonsense. It hasn't reached court*, there can be no contempt.

* AFAIK

Offline NewStuff

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Re: Drws Cefn- the next instalment?
« Reply #27 on: February 21, 2016, 01:19:55 pm »
They have, as I understand it, been given notice of the intention to proceed with the legal avenue. I would think any concrete would need to be kept firmly in the mixer until the legal proceeding are finished.
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Offline cavermark

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Re: Drws Cefn- the next instalment?
« Reply #28 on: February 21, 2016, 03:06:38 pm »

I have publicly stated my own hope and wish that the whole CROW issue could be decided by persuasion, without recourse to the courts. Unfortunately thus far DEFRA, NE and NRW have shown themselves to be intransigent and unreasonable, unwilling to budge an inch from a legally perverse position - that cavers can enter systems on access land freely as far as the daylight ends, but can go no further.


My impression was that the "official" negotiations via the BCA were in early stages and that a softly, softly, considered approach was being followed. Which has by no means reached a dead end yet...

Offline David Rose

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Re: Drws Cefn- the next instalment?
« Reply #29 on: February 21, 2016, 04:26:47 pm »
There are no official "negotiations" as such - only a BCA lobbying effort led by Tim Allen which has been very effective in building support from other outdoor bodies, MPs etc, and which will continue. All cavers should be grateful for the many hours' effort he and others have been putting in.

Even if the Drws situation does end up in court, then this campaign will continue. The two are not mutually exclusive. 

Offline Badlad

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Re: Drws Cefn- the next instalment?
« Reply #30 on: February 21, 2016, 04:55:11 pm »
Dear all

The BCA campaign for CRoW to apply to recreational caving is progressing very well, as has been reported to Council meetings and on this forum.  As the BCA is but a minnow in the outdoor recreational sector, the strategy is to gather wide support from other organisations in order to influence and bring pressure for change on those in authority.  I believe this is also very positive for British caving and regardless of what happens at Drws Cefn these efforts will continue.

The BCA is very unlikely to pursue the legal route.  It would not want the financial risk let alone taking account of the many other considerations.  If it did choose to make a legal challenge I doubt very much that it would make it over the Drws Cefn/Ogof Draenen system.  This is a cave which is subject to a bitter dispute between cavers which has been escalating for many years drawing more and more people and organisations into it.  It reflects very badly on British caving and is the responsibility of ALL those who have actively contributed to the situation. 

If BCA did decide to mount a legal challenge I would recommend they chose a cave where cavers were in agreement, where the landowner was broadly supportive or at least ambivalent and where the authority had expressed a sympathy with the national association's view. 

Having said that, judicial review is the legal right of every UK citizen and NGO if they feel that a decision taken by a local authority should be challenged.  Those challenging NRW are perfectly entitled to do so and whether the BCA, NRW, PDCMG, the landowners or anyone else doesn't like it, they seem to have all missed the opportunity to do anything about it now.

If the judicial review process goes through to a conclusion I hope that it brings a positive result and that those involved get what they are wishing for.

Offline tony from suffolk

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Re: Drws Cefn- the next instalment?
« Reply #31 on: February 21, 2016, 04:59:51 pm »
I have publicly stated my own hope and wish that the whole CROW issue could be decided by persuasion, without recourse to the courts. Unfortunately thus far DEFRA, NE and NRW have shown themselves to be intransigent and unreasonable, unwilling to budge an inch from a legally perverse position - that cavers can enter systems on access land freely as far as the daylight ends, but can go no further.
... And it's difficult to imagine a more perverse and utterly ridiculous stance, only possible by being concocted by civil servants desperately scrabbling around to justify their completely untenable stance on this. I mean, how unbelievably crass can you get?

I've been dealing with this stuff all my working life. Just watch what happens when the judiciary beams in and brings logic to bear. They'll all scuttle off back to their little holes and plead ignorance.
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Offline Rhys

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Re: Drws Cefn- the next instalment?
« Reply #32 on: February 22, 2016, 10:32:12 am »
As I understand it, the digging was not on the surface but underground, in order to connect Drws to the main Draenen system. Digging already takes place underground in many caves without the permission of the landowner who happens to own the entrance, on both CROW and non-CROW land.

Ok, I hadn't realized that it wasn't a surface dig.  My point about needing landowner permission (and therefore goodwill) for surface digs still has some relevance I feel.

The following quote suggests that Drws Cefn started as a surface dig.

The entrance to Drws Cefn is a completely natural feature (a small vertical pothole) that became infilled with glacial deposits at the end of the last ice age. These deposits were then removed to reveal the open cave passage which lay beneath. Further on, this passage was indeed enlarged artificially during the course of its exploration but this is no different to what you find with many caves, including the original Ogof Draenen entrance.

Offline David Rose

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Re: Drws Cefn- the next instalment?
« Reply #33 on: February 22, 2016, 10:58:10 am »
If CROW were recognised as applying to caves, would the past removal of some glacial infill from a natural entrance mean that this entrance would not be covered by the Act's provisions? I very much doubt it. Consider: a climber might well removes loose flakes or trundle boulders from a new route before making the first ascent. If the crag were on CROW access land, would this make any difference? I don't think so.

I think this argument over the history of Drws Cefn is irrelevant now. As I said before, the cave is there. It exists and is open. If CROW applies to caves, then that is how it should stay. The same should apply to many other entrances on CROW land from which infill was once removed.

Offline Simon Wilson

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Re: Drws Cefn- the next instalment?
« Reply #34 on: February 22, 2016, 11:04:50 am »
In addition, people have been filling in caves for thousands of years. So a great many digs are the reopening of caves which where naturally open in the past.

Offline Rhys

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Re: Drws Cefn- the next instalment?
« Reply #35 on: February 22, 2016, 11:44:50 am »
David and Simon

You are both effectively saying that if CROW applies to caving, then it also gives a right to surface cave digging. It has generally been agreed that this would not be the case.

Perhaps the judical review might consider this point.

Offline droid

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Re: Drws Cefn- the next instalment?
« Reply #36 on: February 22, 2016, 12:03:57 pm »
David seems to be talking about past removal of fill, Simon about future removal.

Two different things.
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Offline Alex

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Re: Drws Cefn- the next instalment?
« Reply #37 on: February 22, 2016, 12:18:00 pm »
I think they are saying it applies to caves already opened now but would not apply to anything opened in the future, once and if the act is re-interpreted. There is also SSI permission for digs needed.
Anything I say is represents my own opinion and not that of a any club/organisation that I am a member of (unless its good of course)

Offline David Rose

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Re: Drws Cefn- the next instalment?
« Reply #38 on: February 22, 2016, 12:34:54 pm »
Yes, Alex, that is what I am saying. In my opinion, this is the only reasonable approach. If it were held that CROW did not apply to caves that had once been dug open, imagine the situation with a system such as Gaping Gill - where some entrances have always been open, and others have required varying degrees of digging. Or, for that matter, Easegill. It didn't take long to get into Lancaster Hole, but it was only entered after the removal of infill. The fact this happened in the 1940s makes no difference, so far as I can see. 

Offline David Rose

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Re: Drws Cefn- the next instalment?
« Reply #39 on: February 22, 2016, 12:37:05 pm »
To be specific: I'm saying CROW should apply to caves that have been dug into - but wouldn't grant unrestricted rights to dig on the surface elsewhere.

Offline Simon Wilson

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Re: Drws Cefn- the next instalment?
« Reply #40 on: February 22, 2016, 01:01:41 pm »
Yes. And the point I was making was tangential. What I said has nothing to do with the law and nothing to do with landowner's permission. I great many surface digs are the reopening of caves that have been filled in a long time ago which is why they are often of archaeological interest. So my point is to do with conservation and ethics. The cave was there before humans and we are just continuing a process of human interaction with the natural landscape.

Offline bograt

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Re: Drws Cefn- the next instalment?
« Reply #41 on: February 22, 2016, 01:22:58 pm »
Surely this branch of this thread is irrelevant, as I see it the, Drws Cefn entrance was opened in 1996/1997, the CRoW act was passed in 2000, this means the entrance was in existence before the act was passed, any activity before the act is of no consequence.
Furthermore, I understand that the present owners acquired the land after the entrance was opened, so they got it knowing about the cave ---.

I am sure that any action to change the natural characteristics of CRoW land as it was when the act was passed will require special permission, this was applied for and refused IIRC.--
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Offline Madness

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Re: Drws Cefn- the next instalment?
« Reply #42 on: February 22, 2016, 01:29:04 pm »
So, lets just say that the legal action over Drws Cefn takes place and the court rules for 'the establishment' (and lets not forget that the court is part of 'the establishment'), the ruling might be that CRoW does not apply to caving.

Then what? MP's, organisations etc are less likely to give support to a cause the has be ruled against in a English Court of Law.

Is the risk justifiable at the moment? A couple of cavers wanting to prove a point might spoil it for future cavers.

Just as a matter of record, My stance is that CRoW does/should apply to caving and that we should give the BCA efforts a chance before acting as individuals. In my opimion a large body of support is more likely to have success than a couple of individuals.

Offline Rhys

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Re: Drws Cefn- the next instalment?
« Reply #43 on: February 22, 2016, 02:05:10 pm »
David and Simon

Thank you for your clarifications.

Offline David Rose

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Re: Drws Cefn- the next instalment?
« Reply #44 on: February 22, 2016, 02:52:52 pm »
I do not follow why it would be harder to get support if cavers had lost a court action. First,  it might be that a later court action over a different cave where circumstances were different might have a different result. A judgment would be binding only if it took place in the Court of Appeal. Secondly, history is full of examples of successful campaigns to change the law or its interpretation. (NB that at present, we are talking about interpreting existing law, not changing it.)

Offline Madness

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Re: Drws Cefn- the next instalment?
« Reply #45 on: February 22, 2016, 10:20:12 pm »
So, if a court were to rule that caving was not included in CRoW, you believe that it wouldn't make any difference to what the BCA are trying to achieve?

Would the BCA then challenge the ruling at a court of appeal?

I'm happy to admit that I know little about how our legal system works,but surely once a legal precedent is set it gets that bit harder to argue your case.

Offline David Rose

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Re: Drws Cefn- the next instalment?
« Reply #46 on: February 22, 2016, 10:54:59 pm »
A judicial review about Drws would not be binding on any subsequent cases, unless one or other side appealed and the cavers lost. However, a defeat in the first tier (administrative) court would certainly be a setback, though not a crushing one.

My main concern at this point is to try to ensure that those planning the action and their advisors are clear that there aren't any special factors in play at Drws that might make defeat there more likely than at some other site. These are technical issues way beyond my knowledge. If there are no such factors, I believe that any caver who supports the view that CROW should apply to caving ought therefore to support the proposed litigation as strongly as possible.

The reason is simple: victory over Drws would probably mean DEFRA, NRW and NE would change their policy. I already find it surprising that they can be contemplating spending taxpayers' money in order to defend the closure of a cave on CROW land. Doing so again somewhere else would look indefensible, especially in light of the broad support the BCA campaign is now attracting. The BCA lobbying campaign and the legal action may end up achieving a synergy that enhances the impact of both. 

Offline Jopo

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Re: Drws Cefn- the next instalment?
« Reply #47 on: February 23, 2016, 12:38:52 am »


, especially in light of the broad support the BCA campaign is now attracting.

Without getting embroiled in the core argument I wonder where statements such as this come from.
As far as I can make out from the contributors to all of the threads covering this topic if you said there were 50 in support and 50 against you would be being very generous. It is easy to make a claim on support - after all newspapers and politicians do it all the time.

Please explain how you justify such a statement.

Jopo

Offline Brains

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Re: Drws Cefn- the next instalment?
« Reply #48 on: February 23, 2016, 07:42:13 am »
Would the referendum they had on the topic, mandating BCA to work for a pro clarification, not be considered enough?

Offline Peter Burgess

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Re: Drws Cefn- the next instalment?
« Reply #49 on: February 23, 2016, 08:32:05 am »
That was support attracted some while ago. The comment was about support being attracted now, with the word "especially", implying a significantly greater level of support than was previously expressed. It is just as likely that cavers are now having some misgivings over how they voted, in the light of how a few cavers are now behaving. One can't really tell as it would require another test of opinion, which is not going to happen.