Author Topic: Access to crags/caves  (Read 3160 times)

Offline Simon Wilson

  • forum hero
  • *****
  • Posts: 1645
    • IC Resin Anchor
Access to crags/caves
« on: July 06, 2017, 04:19:23 pm »
When is a cave a crag?

Gaping Gill is an established climbing route and climbing is allowed under CRoW. I can see no difference between aid climbing and doing it on SRT. So if Gaping Gill is recognised as climbing and allowed then surely all caves are.

https://www.ukclimbing.com/logbook/crag.php?id=4148

It high time this nonsense was cleared up. We could all just say we are climbing not caving?

Offline langcliffe

  • forum hero
  • *****
  • Posts: 2275
    • Caving Routes in the Northern Dales
Re: Access to crags/caves
« Reply #1 on: July 06, 2017, 04:21:11 pm »
I thought that it was all to do with daylight penetration? What we really need is an elaborate system of mirrors...

Offline Simon Wilson

  • forum hero
  • *****
  • Posts: 1645
    • IC Resin Anchor
Re: Access to crags/caves
« Reply #2 on: July 06, 2017, 04:45:33 pm »
I thought that it was all to do with daylight penetration? What we really need is an elaborate system of mirrors...

I think we can forget that daylight nonsense. Climbing is allowed 24hours with no mention of daylight.

Climbing is mentioned on the thread about Wales. The point I am making is that you can't clearly distinguish between caving and climbing.

Offline langcliffe

  • forum hero
  • *****
  • Posts: 2275
    • Caving Routes in the Northern Dales
Re: Access to crags/caves
« Reply #3 on: July 06, 2017, 05:15:24 pm »
I think we can forget that daylight nonsense.

Of course we can - and many of us do. The daylight nonsense is the interpretation put upon the legislation by the body tasked with implementing it. Haven't we been through all this ad nauseam?

Offline mikem

  • forum hero
  • *****
  • Posts: 2556
  • Mendip Caving Group
Re: Access to crags/caves
« Reply #4 on: July 06, 2017, 10:48:57 pm »
I thought that it was all to do with daylight penetration? What we really need is an elaborate system of mirrors...
Shame you can't "legally" get those mirrors to the cave! Of course, when the climb was originally done they were almost certainly trespassing...

Mike

Offline Simon Wilson

  • forum hero
  • *****
  • Posts: 1645
    • IC Resin Anchor
Re: Access to crags/caves
« Reply #5 on: July 07, 2017, 12:11:16 am »
I thought that it was all to do with daylight penetration? What we really need is an elaborate system of mirrors...
Shame you can't "legally" get those mirrors to the cave! Of course, when the climb was originally done they were almost certainly trespassing...

Mike

The term 'trespass' often gets misused. Being on land without the owners permission is not trespass and is also not against the law.

The original climbers would have been made very welcome by the owner at the time who was a caver and who, I have no doubt, would have been pleased to hear of the first ascent. I don't know how many times the climb has been done since but quite a few times. I know one person who has done it.

This is all besides the point. The point is that anybody has the right to climb it under the CRoW Act so we have the right in law to climb it using SRT.

Offline Madness

  • forum star
  • ****
  • Posts: 703
  • Wind-up merchant and general pain in the arse!
Re: Access to crags/caves
« Reply #6 on: July 07, 2017, 12:11:40 pm »
So, we all stop calling ourselves 'cavers' then and start calling ourselves 'subterranean rock climbers' then  ;)

Offline TheBitterEnd

  • forum hero
  • *****
  • Posts: 1461
  • KCC
    • KCC - Join an active club
'Never argue with a fool, onlookers may not be able to tell the difference.' — Mark Twain

Offline droid

  • forum hero
  • *****
  • Posts: 2226
  • WMRG
Re: Access to crags/caves
« Reply #8 on: July 07, 2017, 09:52:49 pm »
The term 'trespass' often gets misused. Being on land without the owners permission is not trespass and is also not against the law.


The Criminal Justice and Public Order Act 1994 says otherwise in certain circumstances.

It is still an Offence under Scottish law.
No longer 'Exceptionally antagonistic' 'Deliberately inflammatory'

Offline RobinGriffiths

  • junky
  • ****
  • Posts: 893
Re: Access to crags/caves
« Reply #9 on: July 07, 2017, 11:05:56 pm »
You can be scrumping wild fruit, leaves, flowers, stems (not roots) on someone's land, and if they tell you to piss off, you can take your ill gotten gains with you, as long as you aren't going to sell it.
Ooo, here we go, the law

"A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or other commercial purpose."

Nothing to do with caving, but it does illustrate that you have certain rights, even if you are trespassing.

Offline NewStuff

  • Vocal proponent of Open Access
  • forum star
  • ****
  • Posts: 728
  • www.dddwhcc.com
    • Deep Dark Dirty WetHoles
Re: Access to crags/caves
« Reply #10 on: July 08, 2017, 06:47:42 pm »
It's only a trespass when you are asked to leave by the landowner/agent. If you refuse, it's then a criminal trespass. MOD, Crown, rail etc being notable exceptions.
Permission? Wassat den?

Offline Bob Smith

  • new to all things i haven't seen before
  • junky
  • ****
  • Posts: 760
  • BEC
Re: Access to crags/caves
« Reply #11 on: July 08, 2017, 10:21:55 pm »
It's only a trespass when you are asked to leave by the landowner/agent.

I'm not sure that's correct, from my common law text book trespass against land is defined as;

"unjustifiable interference with land which is in the immediate and exclusive possession of another"

And I can find no reference to the necessity of being challenged by the landowner. Although if they didn't catch you doing it I'm not sure how they'd know.

IIRC correctly you don't even need to actually damage anything to commit a trespass against someone's land (I seem to remember a piece of case law involving the boom of a crane traversing a neighbouring property)

Offline blackholesun

  • menacing presence
  • **
  • Posts: 223
Re: Access to crags/caves
« Reply #12 on: July 09, 2017, 02:31:08 pm »
As far as I can tell, and from talking with urbex'ers and protestors, there are two types of trespass:

Trespass to Land
This is a civil offence and this is what Bob is talking about. If you wander on to someone's land, or dump your broken washing machine in their field, then you can be guilty of trespass to land. The police have no rights to get involved and you certainly shouldn't be arrested for this. The landowner may decide to sue you for damages or loss, but these will be hard to prove if you just wandered onto someone's land via an established path.

Aggravated Trespass (AT)
This is a criminal offence and many police officers will relish arresting you if they have the slightest suspicion that you've committed this. This is one of the justifications our public servants use to arrest you, briefly detain you, and then dearrest you once the occasion to exercise your lawful rights has passed. To be actually guilty of aggravated trespass you need to be, a) Trespassing and b) "Intentionally obstructing, disrupting, or intimidating others from carrying out ‘lawful activities’". Essentially, if you are asked to leave and don't immediately leave then you may be guilty of AT and face criminal prosecution.

https://www.justanswer.com/uk-law/8l3c3-sue-trespass-land-damages-done-land.html
https://www.lawteacher.net/lecture-notes/tort-law/trespass-to-land.php
https://greenandblackcross.org/guides/laws/5-trespass-aggravated-trespass/
http://www.cps.gov.uk/legal/s_to_u/trespass_and_nuisance_on_land/

Of course, for caving this raises some interesting questions.
First, assuming you were caught on CROW land, you could take it to court and launch a legal defence that way. However, this could be expensive and certain portions of the caving community would probably put a fatwa on your head.

Second, you can legally walk to the entrance of a cave on CROW land and at least as far as the daylight extends to. Therefore, you could not be accused of trespass if you were caught after exiting the cave, assuming you left as soon as possible and didn't interfere with anything. Nor could you be accused of trespass if you were caught walking to the cave unless the landowner was willing to walk to the cave with you and witness you enter.

Thirdly, to be charged with aggravated trespass on CROW land, the landowner would somehow have to prove that you were interfering with their lawful activities while you were underground. If they had some cheese maturation facility in the cave, then fair enough, you might get in the way. Perhaps if they wanted to go caving themselves? Maybe they want to avoid paying for disposal fees and are planning to dump some dead sheep down the exact pothole that you're planning to visit? Generally though, landowners aren't going to be doing anything lawful in a cave and so it would be impossible for you to interfere with it.

TLDR; As far as I can see, there's essentially no way to receive a criminal charge for caving on CROW land. Provided you don't damage anything, there's also no way to end up being forced to pay more than a small sum in a civil case. Furthermore, I think, in the highly unlikely event that someone was sued for caving on CROW land, many cavers (including myself) would be happy to contribute to any legal costs or judgements against them. 

Offline cavemanmike

  • forum star
  • ****
  • Posts: 552
  • ucet
Re: Access to crags/caves
« Reply #13 on: July 09, 2017, 04:00:17 pm »
Crowd funding can be a powerful movement and has been very successful in many cases so why not this  :o

Offline AR

  • Black shadow
  • forum hero
  • *****
  • Posts: 1064
  • PDMHS, ATAC, ANHMS
Re: Access to crags/caves
« Reply #14 on: July 09, 2017, 05:45:05 pm »
Thirdly, to be charged with aggravated trespass on CROW land, the landowner would somehow have to prove that you were interfering with their lawful activities while you were underground. If they had some cheese maturation facility in the cave, then fair enough, you might get in the way. Perhaps if they wanted to go caving themselves? Maybe they want to avoid paying for disposal fees and are planning to dump some dead sheep down the exact pothole that you're planning to visit? Generally though, landowners aren't going to be doing anything lawful in a cave and so it would be impossible for you to interfere with it.

Dumping dead livestock into a hole in the ground is defintely not a lawful activity, and I believe is explicitly forbidden by various bits of environmental and animal health legislation. So, if you come to the entrance and find Farmer Palmer with a dead sheep or two in the tipping trailer, he's on a very sticky wicket if he gives you the "Gerroff Moi Laand!" treatment...
Dirty old mines need love too....

Offline blackholesun

  • menacing presence
  • **
  • Posts: 223
Re: Access to crags/caves
« Reply #15 on: July 09, 2017, 06:46:16 pm »
I very much hope it'll never come to that, and I'm not entirely sure you're being serious, but I think that crowd funding a caver's defence against an aggressively litigious landowner could be a worthwhile act.

Yeah, I was mainly joking about the dumping of dead livestock, but I enjoyed the Farmer Palmer scene. And yes, it's been banned from '05. However, sheep are still always found down open pots, even ones that are fenced off. Perhaps I'm being unduly paranoid though; plenty of heavily decomposed sheep are just left out on open ground, along with barrels of chemicals or rusting machinery, so perhaps the farmers don't actually care enough to lob them down the nearest shaft. There was certainly no effort made to dump them in cases like the one many of us are familiar with: http://www.thestar.co.uk/news/ban-for-farmer-who-left-dead-sheep-to-rot-1-6444673


Offline Simon Wilson

  • forum hero
  • *****
  • Posts: 1645
    • IC Resin Anchor
Re: Access to crags/caves
« Reply #16 on: July 09, 2017, 09:41:56 pm »
Of course there are various types of trespass but none of them need concern us.

I will repeat what I said higher up the thread. Being on land without the owners permission is not trespass and is also not against the law. I do it very often. If you were to be challenged and asked to leave and you left without any argument then there would have been no act of trespass and no laws broken.

This is an important thing to know when we go caving on Access Land. DEFRA have said that we can enter caves on Access Land. The only thing they are in doubt about is how far into caves we are allowed to go and they have refused to be specific on this point. If you believe what DEFRA says and proceed into a cave anyway then the above would apply.

Offline Pitlamp

  • forum hero
  • *****
  • Posts: 4725
Re: Access to crags/caves
« Reply #17 on: July 10, 2017, 08:01:57 am »
I thought that it was all to do with daylight penetration? What we really need is an elaborate system of mirrors...
Shame you can't "legally" get those mirrors to the cave! Of course, when the climb was originally done they were almost certainly trespassing...

Mike

I don't think that's right Mike. The most recent documented free climb out of Main Shaft was just over 29 years ago. It was done during a proper meet at GG (organised by another club). In general the various (sporadic) occasions when climbs were attempted did have the blessing of the land owner. Some were performed during GG winch meets, which definitely had permission (and the kind support) of Dr. John Farrer. They span the period 1969 - 1988.

For anyone interested, there is a history of these free climbing attempts published (Northern Pennine Club Journal 2015, pages 73 - 76). It includes photographs of most of the main activists and all the main references except (for completeness): Baxter-Jones R, 1973, "The Pit and the Pendulum". Leeds University Climbing Club Journal 1973, pages 27 - 28.

Offline TheBitterEnd

  • forum hero
  • *****
  • Posts: 1461
  • KCC
    • KCC - Join an active club
Re: Access to crags/caves
« Reply #18 on: July 10, 2017, 01:29:47 pm »
Of course there are various types of trespass but none of them need concern us.

I will repeat what I said higher up the thread. Being on land without the owners permission is not trespass and is also not against the law. I do it very often. If you were to be challenged and asked to leave and you left without any argument then there would have been no act of trespass and no laws broken.

This is an important thing to know when we go caving on Access Land. DEFRA have said that we can enter caves on Access Land. The only thing they are in doubt about is how far into caves we are allowed to go and they have refused to be specific on this point. If you believe what DEFRA says and proceed into a cave anyway then the above would apply.


I guess that for individual, non-club cavers/trips then they can exercise their CRoW rights to the extent suggested by DEFRA but for club trips orgainised by CNCC member clubs there would seem to be (perhaps tacitcly) an agreement in place between the club, the CNCC and the landowner and I would expect that such an agreement could be seen as having more weight.

'Never argue with a fool, onlookers may not be able to tell the difference.' — Mark Twain

Offline zeroIsMe

  • Newbie
  • *
  • Posts: 7
Re: Access to crags/caves
« Reply #19 on: July 10, 2017, 02:07:18 pm »
Of course there are various types of trespass but none of them need concern us.

I will repeat what I said higher up the thread. Being on land without the owners permission is not trespass and is also not against the law. I do it very often. If you were to be challenged and asked to leave and you left without any argument then there would have been no act of trespass and no laws broken

Unfortunately you're wrong in regard to this. Your correct that it is not illegal, however to intentionally enter someone else's land without their permission is civil trespass. It becomes trespass as soon as you do it, not when/if you're asked to leave.

Exceptions apply in certain places such as railways or defence location's which are automatically criminal trespass. The police have no power over civil trespass unless you do not leave when asked, your causing obstruction or carrying out an illegal act while you're trespassing. Landowners or those acting on behalf of them such as security staff often have the wrong beliefs in regard to the law surrounding this but in my experience all police involvement has shown that the police do know their stuff and will correct the other party

Offline Simon Wilson

  • forum hero
  • *****
  • Posts: 1645
    • IC Resin Anchor
Re: Access to crags/caves
« Reply #20 on: July 10, 2017, 02:19:11 pm »
Of course there are various types of trespass but none of them need concern us.

I will repeat what I said higher up the thread. Being on land without the owners permission is not trespass and is also not against the law. I do it very often. If you were to be challenged and asked to leave and you left without any argument then there would have been no act of trespass and no laws broken

Unfortunately you're wrong in regard to this. Your correct that it is not illegal, however to intentionally enter someone else's land without their permission is civil trespass. It becomes trespass as soon as you do it, not when/if you're asked to leave.

Exceptions apply in certain places such as railways or defence location's which are automatically criminal trespass. The police have no power over civil trespass unless you do not leave when asked, your causing obstruction or carrying out an illegal act while you're trespassing. Landowners or those acting on behalf of them such as security staff often have the wrong beliefs in regard to the law surrounding this but in my experience all police involvement has shown that the police do know their stuff and will correct the other party

OK

https://www.askthe.police.uk/content/Q56.htm

Offline Simon Wilson

  • forum hero
  • *****
  • Posts: 1645
    • IC Resin Anchor
Re: Access to crags/caves
« Reply #21 on: July 10, 2017, 02:20:14 pm »
Of course there are various types of trespass but none of them need concern us.

I will repeat what I said higher up the thread. Being on land without the owners permission is not trespass and is also not against the law. I do it very often. If you were to be challenged and asked to leave and you left without any argument then there would have been no act of trespass and no laws broken.

This is an important thing to know when we go caving on Access Land. DEFRA have said that we can enter caves on Access Land. The only thing they are in doubt about is how far into caves we are allowed to go and they have refused to be specific on this point. If you believe what DEFRA says and proceed into a cave anyway then the above would apply.


I guess that for individual, non-club cavers/trips then they can exercise their CRoW rights to the extent suggested by DEFRA but for club trips orgainised by CNCC member clubs there would seem to be (perhaps tacitcly) an agreement in place between the club, the CNCC and the landowner and I would expect that such an agreement could be seen as having more weight.

This is why it needs clarifying.

Offline zeroIsMe

  • Newbie
  • *
  • Posts: 7
Re: Access to crags/caves
« Reply #22 on: July 10, 2017, 02:43:38 pm »

OK
The
https://www.askthe.police.uk/content/Q56.htm

I'm new here and really don't want to get in an argument with someone who is clearly a long term member, it's not really the way to make friends, I'm not sure though how that link shows it isn't trespass until you're caught though but I'm quite happy to agree to disagree   :thumbsup:

Offline Badlad

  • Administrator
  • forum hero
  • *****
  • Posts: 1631
Re: Access to crags/caves
« Reply #23 on: July 10, 2017, 03:55:53 pm »
Apologies in advance to all who have heard enough on this subject but...

It may be important to consider different designations of land type.  The subject of this thread is about 'access land' as defined under the Countryside and Rights of Way Act. See subsection (4) in particular;

2.—(1) Any person is entitled by virtue of this subsection to enter and
remain on any access land for the purposes of open-air recreation, if and
so long as -
(a) he does so without breaking or damaging any wall, fence, hedge,
stile or gate, and
(b) he observes the general restrictions in Schedule 2 and any other
restrictions imposed in relation to the land under Chapter II.
(2) Subsection (1) has effect subject to subsections (3) and (4) and to
the provisions of Chapter II.
(3) Subsection (1) does not entitle a person to enter or be on any land,
or do anything on any land, in contravention of any prohibition
contained in or having effect under any enactment, other than an
enactment contained in a local or private Act.
(4) If a person becomes a trespasser on any access land by failing to
comply with—
(a) subsection (1)(a),
(b) the general restrictions in Schedule 2, or
(c) any other restrictions imposed in relation to the land under
Chapter II,
he may not, within 72 hours after leaving that land, exercise his right
under subsection (1) to enter that land again or to enter other land in the
same ownership.

Whatever side of the CRoW fence you sit on there is no clear definition whether caving comes under the Act or not.  It may do, it may not.  If it does then you can go caving on access land without the landowner's permission.  If it does not then you would need landowner permission.  It is very unlikely that any landowner would wish to pursue the CRoW caving conundrum through the courts as the risks of losing a lot of money are great.  So, concerning trespass for caving on access land, in the worse case you will be expected to leave the land for 72 hours and not return as described in subsection (4). 

Offline zeroIsMe

  • Newbie
  • *
  • Posts: 7
Re: Access to crags/caves
« Reply #24 on: July 10, 2017, 04:47:38 pm »
Out of curiosity does the act define anywhere what it constitutes as "open air activity" as this could mean caving as your still technically within air just on a different level, or does it mean for example grassland? I think a lot of these things are left very open ended and need to wait until precedence is set through case law so it may be the unfortunate case that it's unanswered until people actually do get taken to court by a land owner