Author Topic: A big day for CRoW  (Read 6004 times)

Offline Stuart France

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Re: A big day for CRoW
« Reply #25 on: October 13, 2020, 10:56:40 pm »
To engineer a (civil) cave trespass case you need a cooperative stooge landowner who will sue a willing test case caver.  The aim of both sides is that the landowner loses the case.  Since he is conniving with the caver, it follows that the caver (or BCA) will have to foot the landowner’s inevitable costs when he loses the court case.  The landowner would have to demonstrate some meaningful loss or impact which would not in fact exist.

It is likely the court would discover the complainant and defendant were acting in unison and that the case was something of a sham.

So this is a very bad idea.

How about this one instead.  Someone applies to their county council to have some popular open cave turned into a Town/Village Green (TVG) on the grounds that people have used it for leisure without objection for 20+ years.  The cave is on CROW land.  The council has to decide if the cave is already open access or not, in other words whether TVG status is necessary in terms of providing public access to it.

Whatever the council decides, and it doesn't matter which way they go, they will end up in court on a JR concerning CROW access to caves.  If they say CROW applies, then you JR them arguing that it didn't, or vice versa, so the court has to make a decision on CROW.  A local council isn't Defra/WG/NRW and so isn't likely to mount much of a defence on a matter like turning a cave into a village green.

There's lots of way of going about this!

The question is whether there is a better use of BCA's money than legal cases - such as free issue power tools and dig materials and funding university caving club equipment.


Offline Jenny P

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Re: A big day for CRoW
« Reply #26 on: October 14, 2020, 02:21:44 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!

Part of the problem is that if you consult a dictionary the definition of "open air" is usually given as "out of doors".  Similarly, if you look up the definition of "outdoor", you find it is "open air".

In point of fact they are not synomymous since "out of doors" suggests outside a building with doors, whereas "open air" tends to suggest no built surroundings and only sky above you.  That's probably why so many centres etc. refer to "Outdoor Education" and happily take young people caving which is, of course, out of doors although not, strictly speaking, in the open air in that you can't see the sky.

So it all comes down to an issue of semantics and whether the CRoW legislation was correctly worded.  It's almost become a circular argument and we won't get any further until the next review of CRoW decides to widen the scope of the activities named as being allowed.  There was a proposed review in 2009 which quite specifically suggested that caving ought to be included under the legislation but the review didn't seem to go anywhere and, at that time, those supposedly speaking on behalf of BCA preferred that it didn't.  Now that we have the backing of the BCA membership in favour of CRoW applying to caves, we need to make sure that the next chance of a review is followed up properly and with determination.

Online Badlad

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Re: A big day for CRoW
« Reply #27 on: October 14, 2020, 03:23:18 pm »
I understand that there are still some worthwhile avenues to explore with the legal team.  The case may have legs yet.

Offline Fulk

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Re: A big day for CRoW
« Reply #28 on: October 14, 2020, 03:26:00 pm »
I don’t see why it’s relevant that caving should be considered by pedants as ‘outdoor’ or ‘open air’; surely the only thing that matters (as far as CROW is concerned) is simply getting to the cave. If there is free access, then fine, you do what you want when you get there; if not, then you have to work your way round it, perhaps with some sort of access arrangement.

Offline Jenny P

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Re: A big day for CRoW
« Reply #29 on: October 14, 2020, 03:44:00 pm »
I don’t see why it’s relevant that caving should be considered by pedants as ‘outdoor’ or ‘open air’; surely the only thing that matters (as far as CROW is concerned) is simply getting to the cave. If there is free access, then fine, you do what you want when you get there; if not, then you have to work your way round it, perhaps with some sort of access arrangement.

The reason why it's important is that, according to Defra et al., CRoW only refers to "open air" activities and they claim this is synonymous with "outdoor".  I'm sure that's why they have come up with this daft claim that you can legally (i.e. CRoW approved) descend an open shaft or pothole as long as you don't go out of daylight at the bottom. (Or, alternatively go into a large cave entrance on the side of a mountain as long as you don't go into the further reaches where it's dark!) Don't forget that under CRoW you are welcome to walk up to a cave, as long as you don't try to enter it beyond the reach of daylight, at which point it become "non-CRoW-approved".  So access to the entrance to a cave isn't a problem, it's access INTO a cave itself which is not allowed.

It's plainly daft and immensely frustrating to be banned by virtue of such silliness!


Offline Martin Laverty

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Re: A big day for CRoW
« Reply #30 on: October 14, 2020, 04:53:06 pm »
I don’t see why it’s relevant that caving should be considered by pedants as ‘outdoor’ or ‘open air’; surely the only thing that matters ... is simply getting to the cave. If there is free access, then fine, you do what you want when you get there; if not, then you have to work your way round it, perhaps with some sort of access arrangement.

I don't think I have ever seen the case of access to sea caves, which I assume is unhindered except by tides and storms, questioned. The Scottish legislation may well mean that the ingress under an owned land surface is indisputable to the lengthy sea caves there, but Wales has quite a few sea caves (some frequented by sea kayakers), and there are also caves in England in cliffs accessed from the shore - Arnside Cove Cave and  Beachy Head Cave come to mind... These may seem insignificant examples, but if we have to get into legal nitpicking, might this not be more materiel in the pro-access armoury?

Offline Fulk

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Re: A big day for CRoW
« Reply #31 on: October 14, 2020, 05:47:31 pm »
Quote
The reason why it's important is that, according to Defra et al., CRoW only refers to "open air" activities and they claim this is synonymous with "outdoor".  I'm sure that's why they have come up with this daft claim that you can legally (i.e. CRoW approved) descend an open shaft or pothole as long as you don't go out of daylight at the bottom. (Or, alternatively go into a large cave entrance on the side of a mountain as long as you don't go into the further reaches where it's dark!) Don't forget that under CRoW you are welcome to walk up to a cave, as long as you don't try to enter it beyond the reach of daylight, at which point it become "non-CRoW-approved".  So access to the entrance to a cave isn't a problem, it's access INTO a cave itself which is not allowed.

Does anybody think that in real life that is going to be an issue? Are we going to be followed across the moors by landowners, gamekeepers, farmer, bailiffs, coppers, judges, court representatives, do-gooders, busybodies, parliamentary officials or anybody else, who will be quite happy to watch us walk over CROW land to a cave without let or hindrance, and then pounce on us as soon as we are about to leave daylight?

Offline nearlywhite

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Re: A big day for CRoW
« Reply #32 on: October 14, 2020, 05:58:19 pm »
https://british-caving.org.uk/update-on-the-crow-judicial-review/

In case anyone wants the official press release!

Offline Ed

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Re: A big day for CRoW
« Reply #33 on: October 14, 2020, 06:53:43 pm »
Define extent of day light..... Surely that's as far as solar generated photons get to.....  :spank:

Offline mikem

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Re: A big day for CRoW
« Reply #34 on: October 14, 2020, 08:22:53 pm »
Day light is where you can see without artificial aid. Most of the coast is somewhat different in that private ownership only extends to the average high tide mark (or something along those lines).

Under current laws the landowner can only ask you to leave by the shortest possible route anyway - which is back onto the fell, where there is open access...

Online tony from suffolk

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Re: A big day for CRoW
« Reply #35 on: October 15, 2020, 08:25:15 am »
Define extent of day light..... Surely that's as far as solar generated photons get to.....  :spank:
So I guess you can't go down any caves at night. The more you drill down into this illogical stance on caves and CRoW, the more ridiculous it becomes.
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Online JoshW

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Re: A big day for CRoW
« Reply #36 on: October 15, 2020, 09:19:53 am »
Define extent of day light..... Surely that's as far as solar generated photons get to.....  :spank:

Series of mirrors set up from the entrance of a cave onwards? or some of those bizarre light tunnel things you can get installed in your house for a small fortune

Offline Ed

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Re: A big day for CRoW
« Reply #37 on: October 15, 2020, 11:59:20 am »
Define extent of day light..... Surely that's as far as solar generated photons get to.....  :spank:
So I guess you can't go down any caves at night. The more you drill down into this illogical stance on caves and CRoW, the more ridiculous it becomes.

Surely the wording prevents a walker  entering the likes of Attermire cave at night time....

Offline mikem

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Re: A big day for CRoW
« Reply #38 on: October 15, 2020, 12:08:24 pm »
But there is no after dark ban - your eyes can adjust to the lower light levels of stars or moon. All laws have a line drawn somewhere & many of them are fairly arbitrary.

Offline Ed

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Re: A big day for CRoW
« Reply #39 on: October 15, 2020, 03:35:11 pm »
But there is no after dark ban - your eyes can adjust to the lower light levels of stars or moon. All laws have a line drawn somewhere & many of them are fairly arbitrary.


doesn't mention after dark - DEFRA refer to DAYlight     

At night time / after sunset - there is no daylight so any cave is beyond the extent of daylight as it on the other side of the globe

Offline mikem

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Re: A big day for CRoW
« Reply #40 on: October 15, 2020, 03:50:30 pm »
Indeed, but so is the fellside & you're still allowed to walk on that.

Online PeteHall

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Re: A big day for CRoW
« Reply #41 on: October 15, 2020, 04:15:42 pm »
Perhaps this just means we'll have to cave at night, when it isn't possible to determine the extent of daylight?  :doubt:
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Offline mikem

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Re: A big day for CRoW
« Reply #42 on: October 15, 2020, 04:30:58 pm »
Not that it matters as we do actually have permission to enter most caves on access land anyway.

Offline Ed

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Re: A big day for CRoW
« Reply #43 on: October 15, 2020, 05:09:33 pm »
Perhaps this just means we'll have to cave at night, when it isn't possible to determine the extent of daylight?  :doubt:

Bit dodgy - it'll be dark  :o :lol:

Offline Jenny P

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Re: A big day for CRoW
« Reply #44 on: October 15, 2020, 06:28:59 pm »
Just don't forget that not all CRoW land is open moorland miles from anywhere where no-one is going to worry about you tramping across the land (as long as it's not a shooting estate).  If you look at the Mendip Hills and the White Peak of Derbyshire, both areas with extensive cave systems, the CRoW access land is in separate patches, sometimes even single large fields, mixed in with ordinary farmland. 

CRoW access land has to be "unimproved land", so a field of rough grazing which has never been mowed or ploughed may well qualify.  The reason for the odd patchwork of sometimes single fields in some areas is that, if the land was ploughed up during WWII in an attempt to grow crops, it cannot be classed as "unimproved" and is therefore not CRoW land.  So you have a mixture of farmland and fields, some of which is CRoW land and some not, so you will be right under the noses of farmers - many of whom don't take kindly to trespassers.  That's why it is important to clarify the law and to deal sensitvely with farmers and landowners in areas like this.

Offline Stuart France

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Re: A big day for CRoW
« Reply #45 on: October 15, 2020, 10:54:01 pm »
Forget all this light-penetrating-into-the-cave-entrance stuff.  That sort of nonsense from Defra might get discussed in court later on - if there is a ‘later on’.

This week’s court case was only a preliminary permission hearing.  All that we were asking for in court on Tuesday was the go-ahead to take our main case, i.e. the CROW caving matter, to a full court hearing.  Permission to do that was refused and I feel BCA should appeal.  The Court of Appeal is a paper process these days and relatively cheap to use - in legal terms.

It seems to me that the way the government goes about defending JR cases is to argue that no decision was ever made, or that the decision they made was not actually a decision, or if there was a clear decision then the government didn’t make it!  The aim is to wreck the claimant's case at the ‘seeking permission’ stage.  Thus the government never has to face the claimant’s real question later on - which in our instance is ‘does CROW etc apply to caving’.

In the 2016 JR case, started by myself and Nig Rogers, about CROW of course, NRW’s defence was to argue that a bat licence application submitted to them by some landowner could be ‘withdrawn’ by NRW.  Normal people would think that only an applicant can withdraw their own application.  But lawyers think this is an opportunity for endless legal argument for which they are paid.  The bat licence was in reality refused by NRW (which is therefore a justiciable decision of theirs) but NRW dressed it up to make it appear that no decision was made by saying NRW ‘withdrew’ the applicant’s application and this was done without the applicant’s knowledge.  Obviously the public body which has the duty to determine a licence application can’t withdraw it (i.e. they can only grant or refuse it) but that doesn’t stop their lawyers arguing that they can withdraw it so as to pretend that a grant/refuse decision was not made.

I’m sure you all can see the game.  Nig and I dropped our case as it was obvious we would be privately funding more of a court case about the meaning of the word “withdraw” and who is entitled to “withdraw” a licence application than the real case about CROW caving.

This time around the government is saying their advisory committee took the decision to exclude caving from the government’s access reform programme in Wales (which is intended only to broaden the public access) on the ground that caving is said by them to be outside the ambit of CROW.  This is equivalent to saying that SAGE decides on the government’s response to Covid and that SAGE at one and the same time may and may not discuss viruses.

I have to say Tuesday’s court hearing shattered my trust in British Justice.  I had expected every judge to keep an open mind until both sides had finished speaking and only then to reach a conclusion.  There are judges who ‘reserve’ their judgement for a couple of weeks while they think about what they heard and then publish a settled view.  But, as per the BCA statement which is linked above in this forum thread, that was not the case with our judge.

He was visibly taken aback not to find the government and NRW lawyers present in court but he quickly recovered and filled that void by asking the caving side all kinds of questions and making all kinds of suggestions that the absent defence team would otherwise have made themselves had they been present.  I cannot recall that he balanced this rather combative approach by putting himself into the defence corner and asking himself some awkward questions on our behalf having apparently become proxy defence team.  Anyway, it did not seem particularly even-handed to me.

In the end, as the BCA statement states, the judge turned his head away from the camera that was directly facing him and he looked continuously into some unseen screen while reading out his judgement without any hesitation, repetition or deviation.  Quite a steady matter-of-fact feel to this compared to his previous impromptu style.  I am struggling even now to understand how such a statement could not have been prepared almost entirely in advance.

NRW did not attend.  Defra sent a representative who said nothing.  The government as Defendant had stated in advance that they would not bother attending court as they thought it a waste of their time or public money.   However, less obvious explanations for choosing to be absent from court have also crossed my mind.


Online PeteHall

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Re: A big day for CRoW
« Reply #46 on: October 16, 2020, 08:22:35 am »
It seems to me that the way the government goes about defending JR cases is to argue that no decision was ever made, or that the decision they made was not actually a decision, or if there was a clear decision then the government didn’t make it!

It seems from what I've read that this pretty much sums it up.

And I'd speculate that the Welsh Government minister knows the same funny handshake as the judge too.

The whole thing stinks!  :furious:

You have to wonder if the Court of Appeal is any less crooked..
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Online Fjell

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Re: A big day for CRoW
« Reply #47 on: October 16, 2020, 08:58:53 am »
I suppose you have to be Welsh to know quite how petty things can get. Many flee. Would it not be better to go to the mother lode and and get someone to add the word “caving” to something? They did so only recently when it came to defining being outside. Can’t imagine anyone in London gives a toss either way.

I suspect that 90% of the value for CRoW has already been extracted, even for caving. Landowners have thrown in the towel on excluding people from upland areas, and are getting scared that things like commercial shooting are on the skids. Everyone needs friends.

The real issue is that CRoW doesn’t give you the right to do anything but transit with no damage. Digging holes in the ground isn’t covered, and nor (technically) are things like bolting. You still need permission and the fabled insurance. Or you decide to try and own key bits (which introduces the interesting scenario of also owning the liability).

Offline ILT

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Re: A big day for CRoW
« Reply #48 on: October 16, 2020, 09:01:45 am »
NRW did not attend.  Defra sent a representative who said nothing.  The government as Defendant had stated in advance that they would not bother attending court as they thought it a waste of their time or public money.   

To my entirely untrained mind this sounds like "we know we can't win so lets not bother"
or more cynically, "Aston assure us the new car will be delivered that morning"

Offline Stuart France

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Re: A big day for CRoW
« Reply #49 on: October 16, 2020, 09:45:50 am »
Quote
To my entirely untrained mind this sounds like "we know we can't win so lets not bother"

Possibly so, but to my entirely untrained mind this also sounds like "we know we will win so lets not bother" attending.

How many JR cases are there where the Defendant (WG) and the First Interested Party (NRW) don't turn up in court?  Is this unique?

Another curiousity of the CROW case is how Second Interested Party (Defra) became involved.  Apparently the court itself invited Defra to join.  In which case, is using the discretion of court officials to boost the fire power of one side in a particular case normal judicial practice in this country?

 

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