Wormster
11 years ago
"Tamarmole" wrote:

The only way a definitive answer will emerge is when the issue is tested in law - can we drop it till then.



See my post a few hours ago!! - this is my whole point, we can ALL postulate and pontificate until we are blue in the face, BUT, until the whole mess comes before the bar we are just wasting time and blowing smoke up each others a$$holes!
Better to regret something you have done - than to regret something you have not done.
ChrisJC
11 years ago
"Tamarmole" wrote:

The only way a definitive answer will emerge is when the issue is tested in law - can we drop it till then.



I did say that on UKC about 4 weeks ago!, and was ignored.

But I still hold that view.

Chris.
droid
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11 years ago
Ditto Chris. Unfortunately the politicos have to have their say.
rufenig
11 years ago
One point which may proove interesting.
There is a change in mining regulations underway.
"Mine regulations 2014" This (at the moment) is scheduled to come into effect on 1st March 2015.
These regulations consider "Tourist Mines" to be controled by the same regulations as working mines.
(Tourist mine is the wording in the act.)
So for some mines, even if they are on access land, there will be legislation which overides CROW.
I.M.H.O.:smartass:
Vanoord
11 years ago
As far as abandoned mines are concerned:

My brief reading of the Act is that it was not the intention to grant unfettered access.

Schedule 1 has a specific exclusion for surface quarrying, which I suspect is an unintended error of draftsmanship and certainly should not be taken to mean that surface quarries are exempt from access whilst underground quarries / mines are okay.

Even disregarding that, I don't see that a Court would ever be persuaded that the intention of the Act was to provide unfettered access to underground workings.

There are a couple of other bits lurking in the depths of the Act which may be salient, particularly those relating to areas containing activities which are granted permission under statutory powers being exempted - working mines would certainly fall under that and I suspect that a Court would extend that to abandoned ones as well.

There is also reference to the Act not giving powers to cross barriers which are put in place to prevent people having accidents, something which effectively legitimises landowners putting in place barriers at the entrance to a mine for safety reasons; and the Act specifically not giving powers for the 'rambler' to bypass, surmount or damage these to gain entry.

Even with an excellent barrister and an incompetent judge, I doubt any claim that the Act gives powers to enter mines would stand a bat's chance in hell in a Court of law.


Hello again darkness, my old friend...
Drillbilly.
11 years ago
I've just read the UKCaving thread.

I wonder, do these people actually go caving/read about the hobby/research anything...or do they just form various bodies, create more acronyms and layers of bullsh t?

BCA, DCUC, Regional Bodies.....I mean, what a load of total jerking off.

How about you just ditch all the crap, all the politics, all the nonsense, bad feeling, red tape, acronyms and layers and laters of total BS and just make your own arrangements and leave it there?

I honestly do feel like an alien in the company of these people. Is it just me or are they doing something very very wrong?

I'm also into classic cars, the first thing I didn't do was create a Great Britain Classic Car Club, Licencing authority, some acronyms, call an extraodinary general meeting about the use of cross ply tyres, confer with the CCTA about the modern application of tyres and the suitability of use in the context of highway enjoyment.

IT IS BULLSH T. STOP IT!!!!

Ignore these people and this nonsense!
Peter Burgess
11 years ago
Vanoord's last post is the sort of comment I was hoping for. I have great faith in the intelligence and thoughtful nature of this forum, otherwise I would not have started this topic. The moderation here is also way ahead of the UKCaving team. So provided people (a) don't slag each other off (b) stick to posting relevant comments (c) don't keep on repeating themselves, we should surely be able to conduct a far more civilised discussion here compared with the jungle law tactics employed on the caving forum.
BertyBasset
11 years ago
A case in point. An area of interest to me at the moment - pardon the extremely crap looking url -https://44d18053-a-62cb3a1a-s-sites.googlegroups.com/site/cavesofnortheastwales/14-caves-d-e/SWCC%20Newsletter%2071%201973%20p21%20%28Custom%29.jpg?attachauth=ANoY7coQrHGjPv_HFpFWMbnlk2HwOnw-OOl-f0aYebRCWTrftl_G-jEdLE_0k3o0GW0Hv-JDajEg3HUNDuQF_fRNUo3feRzkptnor46pNFC0OY-smAf2Y0m6XiuKduSKmwv2e1GDJG5i9kp2I9VZ7AO-vWY4pr5zFJ0Jg5SOObYw-_xL5QI4P9e7vd0ciDrSB5s-6f2bCIJQDE2Ov3QTfmAcMy2uAk5h6lKPc4L9-iLROSvp276PYDYBnVy_6ern5j7UkoSSiYhZcCmooWwpJsVwmkfb1VXMzw%3D%3D&attredirects=0 Not on CROW land, but cave extensively altered by mining. Would qualify as a cave. But the nearby Ffos-y-Bleiddiad which is pure mine wouldn't.
NewStuff
11 years ago
"Peter Burgess" wrote:

Vanoord's last post is the sort of comment I was hoping for. I have great faith in the intelligence and thoughtful nature of this forum, otherwise I would not have started this topic. The moderation here is also way ahead of the UKCaving team. So provided people (a) don't slag each other off (b) stick to posting relevant comments (c) don't keep on repeating themselves, we should surely be able to conduct a far more civilised discussion here compared with the jungle law tactics employed on the caving forum.




Anything purely mine will not be affected by CRoW, and it would be daft to think otherwise.

There you go, no slagging off, or "jungle tactics".

Mine exploration and Caving, while sharing a lot of similarities, have very different mindsets when it comes to access.

[mod]No personal digs, please :flowers:[/mod]
Searching for the ever elusive Underground Titty Bar.

DDDWH CC
Vanoord
11 years ago
I had a read of the UKC thread until I lost the will.

My feeling is that there is likely to be a difference between mines and caves, although not necessarily a wide one but still enough to make a difference.

I can see the UKC barrister's opinion's reasoning, but I think that as it hinges on classifying caving as an open air activity, it is liable to challenge.

The other significant weakness it had is that DEFRA would have been responsible for drafting the Act, so their point of view (ie that the Act was not intended to give rights of access to caves) is likely to be listened to by a Court.

It would, of course, depend on the Judge and while I can see it going either way, I would side with DEFRA's interpretation.

Turning to back to mines, the prospect raises itself that if someone were to start excavating a new mine, then would access automatically be granted under the Act?

That would be a very strange occurrence, and although there are parallels in other common law rights which might grant rights, land used for (surface) quarrying would be exempted.

Take an adit, for example: that is, by definition, on the surface. Therefore - on this technicality - it would be excluded, even if the area concerned is tiny.

However, the approach to that adit would have to be considered also part of the quarrying operation, so I would suggest that would also be excluded.

This, of course, is before the exclusions for works undertaken under statutory powers are considered (something my knowledge of is rather deficient).

I suspect that land covered by abandoned surface workings has been included in Access Land across the UK, which may give some the suggestion that underground workings would be similarly covered.

The difference - I think - comes from two specific points.

1. The exploration of abandoned mines is not, by definition, an open air activity taking place on land. It occurs below the land, far away from open air. On that basis, it would seem to have to have been specifically included in the Act rather than being deemed included through not being specifically excluded.

2. Abandoned mines are dangerous places and I don't accept that the intention of the Act was to allow free access to them as this would (a) risk public safety; and (b) put land owners at risk of legal challenge if an injury occurred.


Essentially, I think the Act gives us some very useful new powers to get to mines, but not to go into them.

If the power extended to a 'right to roam' underground, then in theory we could cut locks off - and land owners would be prevented from reinstating them; or indeed from blocking off adits with soil to prevent people getting in and coming to harm.

That is an entirely different situation to the right to walk across moors and fells and I don't see such an argument ever succeeding in a Court.

The problem will arise if people start thinking they have a right of entry - because that's a sure fire way of ending up with 100 tonnes of solid blocking an adit and a landowner sitting back and saying 'so sue me'.



Hello again darkness, my old friend...
royfellows
11 years ago
Drillbilly, Stu old friend, your last posting has made me really smile, if you only knew, but I dare not post on a public forum.

Would you believe that there are individuals involved who rarely go underground?
:lol:

Anyway, back to this thread. I really think the whole issue is a non starter, although the act creates criminal offences I think Mr V hits the nail on the head.
As far as any private civil or criminal action is concerned, can you really see anyone wanting to be the test case?

I think its time to put the matter to bed.

My avatar is a poor likeness.
Peter Burgess
11 years ago
DON'T, please DON'T read the UKCAVING thread. Read the BCA minutes - a reasoned discussion with all the relevant documents appended. Does anyone want the link?
Vanoord
11 years ago
"Peter Burgess" wrote:

DON'T, please DON'T read the UKCAVING thread. Read the BCA minutes - a reasoned discussion with all the relevant documents appended. Does anyone want the link?



You may as well post it!
Hello again darkness, my old friend...
Peter Burgess
11 years ago
OK - only I feel I am being ostracised for daring to mention something that, even if you don't want to think about it, is actually quite important to those who still get underground. ;)

http://british-caving.org.uk/wiki3/doku.php?id=conservation_access:minutes 
Peter Burgess
11 years ago
I will repeat again that I am not interesting in arguing about Open Access rights and wrongs, just would like to point out that people are putting mines into the same basket as caves, whereas up to now they have been outside any considerations as being exempt from the legislation.
Vanoord
11 years ago
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...
Peter Burgess
11 years ago
Brief? :lol: No comment - I might agree with what you say, but we've heard all this before elsewhere!
royfellows
11 years ago
Mr V, I agree completely and have to express admiration for the clarity of your logic and grasp of the issues.

But have to point out that the likelihood of an individual being prepared to come up with the money to be the 'test case' is extremely remote.

Your comment "brief pyrrhic victory" is very pertinent, didn't we see this in speed trap radar detectors?
My avatar is a poor likeness.
royfellows
11 years ago
Back to the thread, and a pertinent question.
Is this likely to go anywhere and will anything useful come out of it?

My avatar is a poor likeness.
Peter Burgess
11 years ago
"royfellows" wrote:

Back to the thread, and a pertinent question.
Is this likely to go anywhere and will anything useful come out of it?



Yes, and No. In that order. ::)

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