Author Topic: A big day for CRoW  (Read 6029 times)

Offline Badlad

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A big day for CRoW
« on: October 13, 2020, 07:58:34 am »
Today's the day we hope to see some real movement on the CRoW debate - one way or the other. 

David Rose backed by the BCA (and your money) is in virtual court today for a preliminary hearing of the Judicial Review against the Welsh Government on CRoW.  Today the judge will decide whether to allow the case to proceed to a full hearing overturning the previous decision that the Welsh Government was not judicable (or whatever the legal word is).  Our solicitor and barrister have put forward a very strong and enlightening case.  The big guns of NRW and Defra have attached themselves to the case so let's hope it is enough to get our full day in court and the CRoW issue finally sorted. 

Good luck Dave and team

Online PeteHall

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Re: A big day for CRoW
« Reply #1 on: October 13, 2020, 08:18:24 am »
Good luck David!
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Offline Ian Ball

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Re: A big day for CRoW
« Reply #2 on: October 13, 2020, 08:59:21 am »
go well Mr Rose,

at the AGM David suggested we could join the public gallery so to speak?  Anyone know how to do that?

Offline Badlad

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Re: A big day for CRoW
« Reply #3 on: October 13, 2020, 09:23:45 am »
There has been links and codes sent to the Crow group and BCA exec by the legal team.  I'm not sure this is intended for wider public viewing so I wouldn't like to pass it on.  You were also advised to complete some tests yesterday to gain access today.  As long as the links work for me I'd be happy to offer a summary later on.

Offline ChrisJC

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Re: A big day for CRoW
« Reply #4 on: October 13, 2020, 10:21:55 am »
That is brilliant. Fingers crossed we can proceed to the next step.

Chris.
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Offline Badlad

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Re: A big day for CRoW
« Reply #5 on: October 13, 2020, 12:22:03 pm »
Hearing lasted nearly 1.5 hours with our barrister arguing the main points of the case to overturn the previous decision that our case was not reviewable.  Unfortunately the judge refused again to judicially review the decision against caving on the grounds that ARAG  were not making decisions on behalf of the Welsh Government and that they were only an advisory group.  The judge did not agree that the steering group of the ARAG was effectively making the decision to exclude caving on behalf of the Welsh Government.  To me it sounded like a very technical and nuanced argument but it means there is no opportunity to challenge on the substantive points of whether CRoW includes caving or not. 

So there are no more grounds for BCA to pursue the CRoW issue through this channel.  The status quo remains that there is ambiguity in the legislation and the CRoW act may or may not include caving.  NRW and Defra contest that it doesn't apply to caving and many others, including BCA, contest that it does.  This is likely to remain the case for many years to come as opportunities to challenge are few and far between.

One interesting point made by the judge was that cavers trespassing would more likely bring about a challenge on CRoW in law.  It seemed odd to hear a judge suggest it.

This is just my own very brief report on the hearing.  I sure Dave Rose and BCA will formally report in more detail at a suitable point in the future.

Online Ed

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Re: A big day for CRoW
« Reply #6 on: October 13, 2020, 01:02:54 pm »
So basically the judge is saying ARAG have no legal authority / remit so what ever they say can simply be ignored as it is only advice

Like the difference between Must /can not  and should not in regulations etc.. The former is legally enforceable the later is merely a request.

So the Welsh Gov now need to publish their own independent  diktat  on whether CRoW applies or not and not use that of the steering group.

In other words until WG publish their own  rules people are free to carry on as if CRoW does cover caving (or not if that is their preference) --- with a landower attempting taking civil action over something there isn't clear rule of they would be using a correct interpretation of the civil law.

I'd say that means any aggrieved landowner will have to push form a review by the WG

Online JoshW

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Re: A big day for CRoW
« Reply #7 on: October 13, 2020, 02:16:48 pm »
So basically the judge is saying ARAG have no legal authority / remit so what ever they say can simply be ignored as it is only advice

Like the difference between Must /can not  and should not in regulations etc.. The former is legally enforceable the later is merely a request.

So the Welsh Gov now need to publish their own independent  diktat  on whether CRoW applies or not and not use that of the steering group.

In other words until WG publish their own  rules people are free to carry on as if CRoW does cover caving (or not if that is their preference) --- with a landower attempting taking civil action over something there isn't clear rule of they would be using a correct interpretation of the civil law.

I'd say that means any aggrieved landowner will have to push form a review by the WG

this interpretation of BadLad's summary, to me, looks like a positive outcome, can continue to assume CRoW covers caving until someone else pushes to prove otherwise?

Someone smarter than me (shouldn't be difficult to find one of those) I'm sure will have a counter argument to my positivity?

Online mikem

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Re: A big day for CRoW
« Reply #8 on: October 13, 2020, 02:51:12 pm »
I thought the action was over their decision not to consider caving because "it wasn't an outdoor sport", so doesn't change the status CRoW!

Offline aricooperdavis

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Re: A big day for CRoW
« Reply #9 on: October 13, 2020, 03:31:44 pm »
One interesting point made by the judge was that cavers trespassing would more likely bring about a challenge on CRoW in law.  It seemed odd to hear a judge suggest it.

Could the BCA support a mass trespass? It would only be breaking the law in very a specific and limited way...

Offline Badlad

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Re: A big day for CRoW
« Reply #10 on: October 13, 2020, 03:34:17 pm »
The decision taken by the Access Reform Advisory Group was to exclude caving from the process on the grounds that, "Following a review of the history and policy of the CROW Act [Countryside and Rights of Way Act 2000], it was agreed that open air access does not include caving.”  This decision was made by the ARAG steering group which was chaired by Simon Pickering, the Welsh Government’s Head of Landscapes and Outdoor Recreation Team and made up from other members of the Welsh Government and administrated through a secretariat also part of the Welsh Government.

The judge didn't agree that the decision therefore amounted to a decision by the Welsh Government and was not judicially reviewable.
The subtle nuances of whether the steering group, who decided upon the policy the reform group had to meet, were actually a part of government or something else were not upheld by the judge.  The argument that the decision made by the steering group was effectively endorsed by the government did not win out. 

It appeared to me that the standard way out for government is to claim that decisions are not reviewable and make a case on that legal point and not the substantive argument.

The end result it that the status quo remains and we are none the wiser on whether CRoW applies to caving or not.  There has been no answer on that.  The judge awarded £1600 costs but BCA have to pick up the costs of our barrister and solicitor so an expensive undertaking for caving but one which the membership clearly indicated was worthwhile.


Offline Badlad

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Re: A big day for CRoW
« Reply #11 on: October 13, 2020, 03:38:05 pm »
One interesting point made by the judge was that cavers trespassing would more likely bring about a challenge on CRoW in law.  It seemed odd to hear a judge suggest it.

Could the BCA support a mass trespass? It would only be breaking the law in very a specific and limited way...

I get the joke  :), but actually no it wouldn't, the law is not clear on this point and has yet to be defined.

Offline Martin Laverty

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Re: A big day for CRoW
« Reply #12 on: October 13, 2020, 03:52:46 pm »
My understanding is that most, or even all, the points made in court are also written down beforehand in written submissions to the judge from both sides. Are these papers available from anywhere, as it rather seems to make a mockery of public justice if they aren't? Similarly, will the final judgement be published, and if so where?

I know a lot of work has gone on behind the scenes into answering some very specific points which the Welsh Government side tried to make, so people have had access to, at least, parts of them and see no reason for them to remain embargoed (if they ever were).

Online Ed

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Re: A big day for CRoW
« Reply #13 on: October 13, 2020, 04:36:37 pm »
It has cleared up the point that anything ARAG publish has no legal standing and isn't the definitive guidance from WG 
 
So unless WG publish its own legal "ruling (not guidance documents) - stating open air access does not include caving, it isn't excluded from CRoW


Online mikem

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Re: A big day for CRoW
« Reply #14 on: October 13, 2020, 05:07:15 pm »
This doesn't appear to have been posted before & is obviously just one possible interpretation:
https://darknessbelow.co.uk/the-definitive-opinion-on-crow-and-cave-access/

Offline NewStuff

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Re: A big day for CRoW
« Reply #15 on: October 13, 2020, 05:41:37 pm »
This doesn't appear to have been posted before & is obviously just one possible interpretation.

It's been linked before. Definitive my arsehole. It was, and remains, finger wagging and telling off.
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Online PeteHall

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Re: A big day for CRoW
« Reply #16 on: October 13, 2020, 05:45:48 pm »
This doesn't appear to have been posted before & is obviously just one possible interpretation:
https://darknessbelow.co.uk/the-definitive-opinion-on-crow-and-cave-access/

This article has definitely been discussed on here before. The basic premise is that "it's not on the map, so it isn't covered", I recall that the counter-argument is that the same could be applied to any feature on CRoW land not specifically detailed on the map, so for example, by this logic you could not climb a specific boulder because it wasn't depicted on the map.

Even if you believed it to be the case, it's not an argument that the Welsh Government (or their advisors) have made, so why provide them with potential ammunition to use against your own community?!? I just don't understand these people.
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Online mikem

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Re: A big day for CRoW
« Reply #17 on: October 13, 2020, 05:50:53 pm »
 :-\ Doesn't come up on search :shrug:
I was surprised that it didn't...

Offline Badlad

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Re: A big day for CRoW
« Reply #18 on: October 13, 2020, 06:03:46 pm »
If you want to see the arguments from the court, barrister etc, either those over whether the decision was judicially reviewable or the more substantive argument on the CRoW matter from both sides then I guess you would need to ask David Rose as he was the claimant.  The bundle in front of the judge was some 538 pages I recall.

The argument mikem posts about is well known to both sides (and the court) - so is the counter argument.  One thing that this process did disclose is that there is no new or unknown argument being brought by the WG, NRW, or Defra as they had to disclose that to the court.  The main substantive arguments remain the same for both sides and as Defra has repeatedly said only a court can make a definitive decision.  That will have to come another day - or may never come and a bit like Schrodinger's cat might be alive or dead and we'll never know until we open that box/judgement.

Offline hannahb

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Re: A big day for CRoW
« Reply #19 on: October 13, 2020, 07:11:42 pm »
The Department for Digital, Culture, Media & Sport recently classed caving as an outdoor sport (for Covid related stuff) - does this have any bearing? Or is the sticking point that it's not considered to be open air?

Offline Badlad

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Re: A big day for CRoW
« Reply #20 on: October 13, 2020, 07:28:15 pm »
The Department for Digital, Culture, Media & Sport recently classed caving as an outdoor sport (for Covid related stuff) - does this have any bearing? Or is the sticking point that it's not considered to be open air?

Yes in fact since the 1970's various government bodies have recognised caving as an outdoor activity.  However...

The phrase used is 'open air recreation' in the Act.  The legislation makes no attempt to define this phrase.  One dictionary definition suggests not enclosed spaces another outside, outdoors.  The minister at the times helpfully suggested that the act should include activities as widely as possible and exclude only those listed in the list of exclusions.  Anyway you can go around and around and there are valid arguments on both sides. 

Our argument is the right one of course  ;)

Online Fjell

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Re: A big day for CRoW
« Reply #21 on: October 13, 2020, 09:19:40 pm »
It's always a bit like objecting to development on the land next door. Vastly the best solution is to own the land. I am currently trying to do exactly that.

Similarly, getting the law written your way in the first place is best, and here we are....

Possibly owning the land is the best option in a few cases. BCA has plenty of cash it seems, and BMC have done it. Just think, if every BCA member chipped in a grand, that would be, what, £6 million? How much do you love your sport?

But it does raise the interesting issue that no landowner in their right mind (or their lawyers mind) is going to sue a caver for trespass on CRoW land, even if they could (and they generally can't that easily).

Offline Badlad

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Re: A big day for CRoW
« Reply #22 on: October 13, 2020, 09:24:22 pm »
But it does raise the interesting issue that no landowner in their right mind (or their lawyers mind) is going to sue a caver for trespass on CRoW land, even if they could.

Exactly  ;)

Offline Stuart France

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Re: A big day for CRoW
« Reply #23 on: October 13, 2020, 10:13:29 pm »
Although David Rose is the Claimant in this case and BCA is meeting his costs, I am the aggrieved party since ARAG refused me membership of its Working Groups on the grounds that ARAG believed caving is not “open air access” (as they put it), and so CROW does not apply to caving in their view, and so removing any ambiguity in CROW concerning caving via the government's new access reform programme will not be considered - all because CROW does not apply to caving.   Illogical I know!

I met the Deputy Minister in April 2019 and she asked me to write to her about what caving wanted regarding the upcoming sorting out of caving access in Wales within the upcoming reform programme that followed the Welsh Government public consultation which she had just trumpeted.

I did write, and she replied that she would get her “officials” to deal with this or words to that effect.  What actually happened is that an advisory committee called ARAG which was not (apparently) instructed by her "officials" dealt with it.  ARAG is chaired by WG’s Head of Landscape and Recreation called Simon Pickering.  WG and NRW provide the secretariat.  WG funds it directly or via NRW.  The judge today thought ARAG is not a part of WG and is purely advisory, has free rein, and is not publicly accountable.

It’s actually more complicated.  ARAG is split into two levels:  a upper level Steering Group that is non-advisory and is there to “manage” the programme via 5 people and all of them central government or NRW or local government employees and all appointed by central government, and three lower level Expert Groups which are volunteers drawn from interest groups like ramblers, climbers, landowners, water companies, fishing, kayaking, hang-gliders etc, appointed by the Steering Group to advise on Policy Intents which were defined by (guess who) the Steering Group - and thus directly or indirectly by the government or by their own invention depending on whom you believe.  To join an Expert Group you have to agree in advance to support the Policy Intents.

If Steering Group and its Policy Intents are not a part of Welsh Government and ARAG itself is non-government then it means an ad hoc group is somehow now in charge of defining future legislation which is nonsense so the premise that ARAG is non-government is nonsense too.

This is not necessarily the end of the matter as we could take our present case (i.e. asking a third time for permission to proceed with the main CROW case) to the Court of Appeal for not a lot of extra cost to BCA.  The CA would then decide the matter of whether our CROW case is allowed to go ahead and thus to overturn today’s judgement.

Alternatively, for example, we can try to get NRW to affirm its statutory advice to the public under CROW S.20 and JR their affirmation that CROW does not apply to caving in their view.  But they will then argue their general public advice was prepared too long ago to be reviewable by a court now and we’ll be back in the same game of the government wanting to argue over something other than CROW:  in such a case it would be the effective date of the alleged incorrect NRW advice for judicial purposes.  The case would then revolve around the smoke-screen of whether a policy affirmation is a new decision or not, in other words if it is eligible for JR or not.

Alternatively we could follow today's judge's incredible suggestion, if I heard this correctly, to engineer an alleged trespass case and get the access rights matter decided by a court in that way.

Alternatively we can ask the High Court for a Declaration that CROW applies or does not apply to caving because BCA is now uncertain as to how to correctly advise its members on whether all caving south of Scotland is trespass unless consented by the landowner because today’s case has solved nothing at all of importance and it leaves everything, as it was before, in limbo land.

Preventing the big legal questions from being addressed by erecting a smoke-screen issue in front of the main issues seems to be normal practice for government defence of JR cases.

Defending a case so as to leave things in limbo is not a win for the Welsh Government nor NRW because they have ducked the substantive questions by obstructing them from being decided by a court.



« Last Edit: October 13, 2020, 10:31:11 pm by Stuart France »

Offline alastairgott

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Re: A big day for CRoW
« Reply #24 on: October 13, 2020, 10:36:29 pm »
Hmm it's a bit much to say that the mass trespass had nothing to do with caving/caves. I have spent a short period tonight briefly researching and have found that a person called Ernest A. Baker (https://en.wikipedia.org/wiki/Ernest_A._Baker ) wrote a book on the "Moors, Crags and Caves of the High Peak and Neighbourhood (1900)".

It seems very unlikely that such an influential and timely book was not owned or used by the people involved in the mass trespass.

In fact to go one point further, one of the dozen signatories of the letter which was sent to the government campaigning for the CROW act was in fact one Ernest A baker. As referenced in Forbidden land: The Struggle for Access to Mountain and Moorland. pg 173. (Tom Stephenson, ‎Ann Holt, ‎Mike Harding · 1989)

https://books.google.co.uk/books?id=i89RAQAAIAAJ&lpg=PA173&ots=etytDMTiBL&dq=%22G.%20H.%20B.%20Ward%22%20%22caves%22%20-dale&pg=PA173#v=onepage&q=cave&f=false

 

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