A brief thought on caves...
The Act enables 'open air recreation' - which is taken to mean walking etc. but also apparently including activities such as rock climbing.
Does it enable caving? I'm not so sure.
Primarily the definition of 'open air recreation' appears to specifically preclude caving which does not take place in the open air.
As I mentioned earlier in the thread, the UKC opinion hangs on redefining 'open air recreation' as 'outdoor activities including caving' rather than 'recreation which occurs on the surface of the land'.
However, is that to say that if there is a small 'cave' which is has one side open to the sky then there should be no access? Such an approach would seem perverse.
There is, however, a difference between that and a situation that occurs when access is claimed for a part of a cave that is below access land and for which the entrance may be several hundred metres away.
Even putting aside the 'open air' argument, there has to be considered to be a difference in law between 'land' of the type the Act grants access to and a cave system below it.
As before, the fact that the hypothetical cave system is not specifically excluded would not mean it is included by default - if only because it is so different in character to the types of land which are the subject of the Act.
Where it becomes less clear is twofold:
1. Does the Act permit someone to access a cave entrance?
2. If permission to be within a cave system rests with the land owner; and the land owner's right to prevent access on their land is removed by the Act, does that not also apply to a cave system underneath it?
The first question is a very tricky one - I suspect the answer that a Court might give is that the Act may indeed give someone the right to go to a cave entrance and even (for example) to dangle themselves into it.
The second question is perhaps best answered by the definitions of 'open air recreation' and 'land'. To a reasonable person, a cave system is neither 'open air', nor is it 'land'. As such, the land owner's rights to refuse someone access to a cave system should not be affected by the Act.
My final consideration would be one of public safety. The Act does make reference to gates, fences and other barriers being permissible to prevent accidents - and from that point of view, I think a landowner would have the right to gate a cave (system) which they considered to pose a sufficient risk to people.
I simply don't see a Court forcing a landowner to remove barriers at a cave entrance, the absence of which could result in someone coming to harm.
Once again, the opinion of DEFRA that the Act does not give permission for caving is an important consideration - a court is more likely to side with them on the basis that they are the body which (effectively) created and now manages the legislation.
If DEFRA were to state that it was never their intention to allow unfettered access to the underworld, then a Court would have to accept that and would almost certainly have to interpret the 'open air recreation' and 'land' definitions as I have above.
However, were a Court challenge to result in a decision that caving is indeed an 'open air recreation' and that cave systems are covered by the definition of 'land' for the purposes of the Act, it wouldn't be a massive leap for landowners to apply to have the definitive maps changed to exclude the access points for cave systems on grounds of public safety. That would be game over - because if you can't get in, you can't explore the rest of the system.
My over-riding belief here is that caving community needs to look very closely at the potential benefits of having cave systems under Access Land includes in the right of access against the potential problems of such a decision being made.
There is great potential for a brief pyrrhic victory of enabling free access - only to be either reversed later or circumvented, with the result that access is lost to a lot more than was ever potentially gained.
Hello again darkness, my old friend...