Should BCA push ahead with a test case for CRoW access?
- Thread starter Brains
- Start date
Stuart France
Active member
You?re right in the sense that the proposed JR case challenges a Welsh Government decision (but not one of the Assembly as that?s equivalent of Parliament here).
But the point you are missing is that in Judicial Review cases the Court can make declarations or give clarifications about the law and give orders to the loser which we would ask to include the following:
(a) Caving is covered by ?open-air recreation? in the CROW Act
(b) Caving is covered by ?air and exercise? in the Law of Property Act
(c) Caves are covered by the term ?access land? in the CROW Act
(d) Caves are covered by the legal definition of ?land? given in the LPA - and thus by "access land" and so on
(e) The government decision to drop caving off their reform agenda must be reversed, and my application to join their reform working group in Wales must be accepted, and to appoint me.
Is that enough by way of potential benefits at national level set against the risks and cost of taking legal action at local level?
But the point you are missing is that in Judicial Review cases the Court can make declarations or give clarifications about the law and give orders to the loser which we would ask to include the following:
(a) Caving is covered by ?open-air recreation? in the CROW Act
(b) Caving is covered by ?air and exercise? in the Law of Property Act
(c) Caves are covered by the term ?access land? in the CROW Act
(d) Caves are covered by the legal definition of ?land? given in the LPA - and thus by "access land" and so on
(e) The government decision to drop caving off their reform agenda must be reversed, and my application to join their reform working group in Wales must be accepted, and to appoint me.
Is that enough by way of potential benefits at national level set against the risks and cost of taking legal action at local level?
Pete K
Well-known member
Of course this needs to be pursued, that is the direction that the BCA has been mandated to follow by a ballot of its members. If it doesn't, then surely it becomes a pointless entity with no place in this world. I'll put my hand in my pocket to help fund this if needed, although as an unemployed outdoor instructor in lockdown, I can't make ?50k!
Dave Tyson
Member
There is a very good chance of winning a JR and it may well be that NRW and WG will back down anyway as they really have not been able to provide any sensible arguments as to why caving should not be covered. As Pete notes, the BCA were mandated to back pushing for CROW to apply and they have sufficient reserves to justify funding the legal action.
One interesting feature in North Wales at present is that the Alyn Gorge seems to have decided to put 'geological time' on steroids and there have been very significant changes to the hydrology of the valley and associated caves over the last few years. Holes have opened up in various areas and water is now disappearing taking various surface paths with it. I am sure the NRW geologists and land managers would be very interested to know exactly what is happening underground - but they are precluded from visiting due to H&S. Of course, cavers could provide some information, but why the hell should we when they have shown no interest in helping us.
I am sure any requests to dig in the SSSI would fall on deaf ears as I once suggested putting some sample bottles in the main sinkhole over winter so check the max height of the water (hole out of bounds due to the hiberating bat) and they were very concerned about any damage putting wires around rocks or into the mud to hold them... As it was, the floor of the cavern dropped by about 5' over the winter taking some of the precious mud banks with it and an even bigger hole has opened up further along the valley!
Dave
One interesting feature in North Wales at present is that the Alyn Gorge seems to have decided to put 'geological time' on steroids and there have been very significant changes to the hydrology of the valley and associated caves over the last few years. Holes have opened up in various areas and water is now disappearing taking various surface paths with it. I am sure the NRW geologists and land managers would be very interested to know exactly what is happening underground - but they are precluded from visiting due to H&S. Of course, cavers could provide some information, but why the hell should we when they have shown no interest in helping us.
I am sure any requests to dig in the SSSI would fall on deaf ears as I once suggested putting some sample bottles in the main sinkhole over winter so check the max height of the water (hole out of bounds due to the hiberating bat) and they were very concerned about any damage putting wires around rocks or into the mud to hold them... As it was, the floor of the cavern dropped by about 5' over the winter taking some of the precious mud banks with it and an even bigger hole has opened up further along the valley!
Dave
darren
Member
If an organisation goes to judicial review and is found to be unreasonable, it could be found liable for the costs of all other parties involved.
Or so I am informed by an organisation that is set up to fight court cases.
I'm sure everyone who is suggesting a Judicial Review knows this and thinks the result is so certain it is not worth mentioning this risk.
I thought it was worth mentioning it just in case.
Or so I am informed by an organisation that is set up to fight court cases.
I'm sure everyone who is suggesting a Judicial Review knows this and thinks the result is so certain it is not worth mentioning this risk.
I thought it was worth mentioning it just in case.
braveduck
Active member
It would be very interesting in court if one of the handful of protagonists has to show they they have been advising
the Welsh Assembly against allowing cavers access to CROW .This certainly was the case with British CROW
application . It was admitted to me on UK Caving by one individual. Said individual looks like they still may be
at it . I think a freedom of information request would show some interesting results .
the Welsh Assembly against allowing cavers access to CROW .This certainly was the case with British CROW
application . It was admitted to me on UK Caving by one individual. Said individual looks like they still may be
at it . I think a freedom of information request would show some interesting results .
Martin Laverty
Active member
According to its constitution:
and the policy supported by a significant majority vote in favour of the view that CRoW does apply to caving,
The constitution's treatment of money appears to consist mainly of accumulating and holding it and has hardly anything on spending other than to prohibit any members enriching themselves...
So, I would say that BCA Council would be failing in its duty if it did not at the earliest possible opportunity expand on its recent spending decision and approve sufficient further budget from its reserves to either push ahead in its own name or to guarantee the immediate reimbursement of costs of a member pursuing an action in accordance with the stated aim and policy.
and the policy supported by a significant majority vote in favour of the view that CRoW does apply to caving,
The constitution's treatment of money appears to consist mainly of accumulating and holding it and has hardly anything on spending other than to prohibit any members enriching themselves...
So, I would say that BCA Council would be failing in its duty if it did not at the earliest possible opportunity expand on its recent spending decision and approve sufficient further budget from its reserves to either push ahead in its own name or to guarantee the immediate reimbursement of costs of a member pursuing an action in accordance with the stated aim and policy.
alastairgott
Well-known member
Sorry Darren, I guess you were right, I could have put my other post on here too. but you spotted it there too, case in question for Unincorporated associations and Judical reviews is: Aireborough Neighbourhood Development Forum v Leeds City Council & Ors [2020]
and it rules that an unincorporated association can serve for a judicial review in a public legal case. The BCA case is one in which an officer has been asked by the members to act on it's behalf, and the case is public in that it will affect people who go caving whether or not they are members of the British Caving Association.
Fail to see how an unincorporated association acting on behalf of its members and the interests of ALL people who want to go caving in the UK (and wales) can have their case being held as "unreasonable" (sorry Darren direct quote, not aimed at you, merely at the incredulous thought that a third party [BCA] could be held as being unreasonable in what is a legality between the Welsh Government and the people of the UK).
Sustainability.
A term which both NRW and the Welsh assembly use.
The welsh assembly defines it thus:
Natural resources wales are defined by UK government as:
Source: https://www.gov.uk/government/organisations/natural-resources-wales
In a 2007 Geodiversity document on the Clwydian range:
https://www.clwydianrangeanddeevalleyaonb.org.uk/files/1585454066-LGAP_Report_ENGLISH.pdf
The then project partners outlined how best to sustainably manage the Geodiversity of the Clwydian Range.
on page 31/32 there is a section summarising the document and in the Economic regeneration line it states:
Predominantly agricultural economy dependent on development of tourism; Small market towns on borders with small
ensure a holistic view and prevention of repeated effort. Encouragement of geotourism with leisure industry e.g. hill walking mountain biking, climbing & caving.
This document was intended by those that wrote it to be a REBOOT of the appreciation of the Geological environment of the Clwydian range. but it seems that the Credit Crunch of the time got in the way of this aspirational target.
Since this document was drafted, I have not seen any field meetings encouraged by government organisations for cavers to visit and appreciate the rich geological wonders of North wales. Indeed it was this year that BCA held its annual caving conference nearby, but I didn't hear of anyone sneaking out of the lectures to go to any of the caves locally.
The CROW act 2000 coined the term AONB, in the UK Governments 25 year environmental plan (which was drafted in consultation with the national association of AONB's (
and it rules that an unincorporated association can serve for a judicial review in a public legal case. The BCA case is one in which an officer has been asked by the members to act on it's behalf, and the case is public in that it will affect people who go caving whether or not they are members of the British Caving Association.
Fail to see how an unincorporated association acting on behalf of its members and the interests of ALL people who want to go caving in the UK (and wales) can have their case being held as "unreasonable" (sorry Darren direct quote, not aimed at you, merely at the incredulous thought that a third party [BCA] could be held as being unreasonable in what is a legality between the Welsh Government and the people of the UK).
Sustainability.
A term which both NRW and the Welsh assembly use.
The welsh assembly defines it thus:
sustainability ? taking a sensible, long-term view about what the organisation is trying to achieve and what it is doing to get there.
source: https://www.assembly.wales/en/abthome/about_us-commission_assembly_administration/comm-corporate-framework/Pages/governance_principles_supporting_provisions.aspxNatural resources wales are defined by UK government as:
ensures the environment and natural resources of Wales are sustainably maintained and used, now and in the future.
Source: https://www.gov.uk/government/organisations/natural-resources-wales
In a 2007 Geodiversity document on the Clwydian range:
https://www.clwydianrangeanddeevalleyaonb.org.uk/files/1585454066-LGAP_Report_ENGLISH.pdf
The then project partners outlined how best to sustainably manage the Geodiversity of the Clwydian Range.
on page 31/32 there is a section summarising the document and in the Economic regeneration line it states:
Predominantly agricultural economy dependent on development of tourism; Small market towns on borders with small
industry including ?new technology? many small rural craft industries that can be up-scaled & diversified; active existing programme of funding & regeneration; existence of rural development agency (Cadwyn Clwyd)
ensure a holistic view and prevention of repeated effort. Encouragement of geotourism with leisure industry e.g. hill walking mountain biking, climbing & caving.
This document was intended by those that wrote it to be a REBOOT of the appreciation of the Geological environment of the Clwydian range. but it seems that the Credit Crunch of the time got in the way of this aspirational target.
Since this document was drafted, I have not seen any field meetings encouraged by government organisations for cavers to visit and appreciate the rich geological wonders of North wales. Indeed it was this year that BCA held its annual caving conference nearby, but I didn't hear of anyone sneaking out of the lectures to go to any of the caves locally.
The CROW act 2000 coined the term AONB, in the UK Governments 25 year environmental plan (which was drafted in consultation with the national association of AONB's (
NAAONB)), Page 19 of the 25 year plan goes on to speak about the Natural Capital of the environment, with Forests given as one of their only examples of Natural Capital.
It is precisely the job of Governments to be opening up untapped Natural capital and shouting about the good economic impact this is having on towns such as Wrexham, but alas, we are here in the mire and the welsh government is trying to increase barriers to people who want to use the landscape and spend our money in the local economies which have been bypassed by the A55 and the A483.
UK Government 25 year environmental plan https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/693158/25-year-environment-plan.pdf
alastairgott
Well-known member
In fact the actions of NRW could be argued to be acting in contravention of the 25 year environmental plan, within the plan (page 27) it talks about boosting the long term resilience of "our homes, businesses and infrastructure" and also talks about reducing the risk of harm to people due to flooding,...
We know that NRW has blocked people from digging caves in the Alyn valley, and we also know that Miners in the last couple of centuries blocked up the natural caves running along the course of the Alyn river.
However, we are now in a position that only last year did the town of Cilcain see flooding! In an area with Caves underneath it, you know those things well renowned for taking water!!
https://www.bbc.co.uk/news/uk-wales-48600293
We know that NRW has blocked people from digging caves in the Alyn valley, and we also know that Miners in the last couple of centuries blocked up the natural caves running along the course of the Alyn river.
However, we are now in a position that only last year did the town of Cilcain see flooding! In an area with Caves underneath it, you know those things well renowned for taking water!!
https://www.bbc.co.uk/news/uk-wales-48600293
David Rose
Active member
In judicial reviews of government decisions of this nature, there is a cap on the liability to pay the other side's costs in the event of losing. It is ?10,000 for collective entities and ?5,000 in cases brought by individuals. Whatever transpires, the BCA will not be facing an enormous, open-ended drain on its resources.
Before any case proceeds, the court must give permission for this to happen. That means it accepts there is a point that merits testing. The law then provides the cap as a protection for claimants, who otherwise would in most cases not be able to take the risk.
Before any case proceeds, the court must give permission for this to happen. That means it accepts there is a point that merits testing. The law then provides the cap as a protection for claimants, who otherwise would in most cases not be able to take the risk.
darren
Member
David Rose said:
Thanks for that.
I was just interested in the the technicalities of how a test case would work.
The Trail Riders Federation frequently does this sort of thing and wins. It does have a large fighting fund and is structured according.
Some people do seem a bit prickly.
Pitlamp said:
The current BCA balance as per the treasurer's report to the April meeting was ?316,000. To my knowledge this has been built up year on year by membership surpluses. 8K in 2019, 19K in 2018, etc, etc. I don't think any of the BCA money is legacy money unlike that left to BCRA, CRO's etc. The new treasurer has stated something along the lines that no business or organisation needs to keep such huge reserves, and that cavers do not pay their subscriptions each year for BCA to hoard extra cash in low interest accounts. There is a need for BCA to keep some money for emergency running costs and to cover insurance excesses but that figure should only be 20-30% of the figure quoted above. For the first time in more than a decade (if ever) BCA are planning a deficit in spending for this year. There is absolutely no shortage of money for any spending that is properly proposed and agreed. Hope that helps
The Balcombe money definitely went to BCRA. Not sure if any restrictions were put on what it could be used for in the wording of the bequest. However, since it went to BCRA, it is sensible to assume it is used to further the aims of BCRA as defined in their constitution.
