I could have made it a lot longer...!


One more thought, rather more pertinent to this forum:

Through the creation of a mine and its subsequent abandonment, the UKC QC's approach would have it that access would become 'as of right'.

I would counter-argue that as the existence of a mine is solely due to the actions of the landowner (and their predecessors), the right to access it must be at their discretion.

It follows that as they giveth they may also take away: bulldozing a mine entrance would seem to be within their right as a landowner to modify their land as they wish.

Essentially, while a right of access may apply whilst the mine is there, collapse of the adit (by whatever means) would make that right impossible to exercise.

Otherwise, the ultimate inference would be that a landowner would be obliged to clear underground collapses in order to allow mine explorers to access the entire mine!

To take away the right of a landowner to restrict access to a mine on their land would be a very problematic step - it would, in all probability, lose a lot more access than it ever gained.

Indeed, we've already seen landowners blocking adits because of the fear of the CROW Act.


We'll all be a lot better off if people don't go barging across farmland and demanding access underground 'as of right' - that right certainly doesn't exist at the moment and may well never be granted by a Court of law.

The potential gains are very slight, but the potential losses are massive.

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[mod]Noted. I've had a prune of some of the off-topic stuff.

A degree of latitude is usually allowed within threads, so perhaps I've been a bit more harsh than usual - but this is probably an issue that deserves to be kept on-topic a bit more than others. [/mod]

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Vanoord you talk a lot of common sense,

As a landowner and someone who tried his damdness to re-open a Smallmine in South Wales,know`s to well the landowners permission for access is paramount,irrelevant if there is an existing mine on the site,without it nothing can progress.

To take a general view, whatever conclusions are reached on here are unlikely to alter matters, we can only sit back and await any developments, if indeed there are any.

Stirring the pot will do no good at all but the whole thing started in the caving community and we have good reason now to question the motivation of some individuals.

As a final point the QC’s opinion which seems to have started this is simply an opinion of an individual, the fact he’s a QC means not a jot and carries no weight in law, law is decided by parliament and the courts.

I seem to recall using the word "non starter" in an earlier posting?

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To take a general view, whatever conclusions are reached on here are unlikely to alter matters, we can only sit back and await any developments, if indeed there are any.

Stirring the pot will do no good at all but the whole thing started in the caving community and we have good reason now to question the motivation of some individuals.

As a final point the QC’s opinion which seems to have started this is simply an opinion of an individual, the fact he’s a QC means not a jot and carries no weight in law, law is decided by parliament and the courts.

I seem to recall using the word "non starter" in an earlier posting?

I would agree with that.

The opinion of a QC is merely that - it is an opinion, which is generally given to a client to advise them on the likely outcome of a possible legal case.

Without wishing to dwell on the opinion in question too much, it is relevant that it was written to support the case that underground access is covered by the CRoW Act.

I'm entirely unsure what the aim of the exercise is from the BCA's point of view, but that's a matter for another forum - not this one!


A lunchtime skim of the Act brings up the following, in Section 25:

(1) The relevant authority may by direction exclude or restrict access by virtue of section 2(1) in relation to any land during a specified period if the authority are satisfied—

...

(b) that, by reason of anything done, or proposed to be done, on the land or on adjacent land, the exclusion or restriction under this section of access to the land by virtue of section 2(1) to the extent provided by the direction is necessary for the purpose of avoiding danger to the public.

Basically, the Act has the powers within it to exclude certain areas - if they pose a danger to the public (as abandoned mines tend to do).

If there was ever a judgement that underground caves or mines became subject to the CRoW, their entrances could simply be excluded from the access land on public safety grounds.

Thus, any "victory" would almost certainly prove to be pyrrhic and short-lived.

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The opinion of a QC is merely that - it is an opinion, which is generally given to a client to advise them on the likely outcome of a possible legal case.

Without wishing to dwell on the opinion in question too much, it is relevant that it was written to support the case that underground access is covered by the CRoW Act.

A suspicious mind would think that someone was told what they wanted to hear?

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I don't think that's far off.

Although it may be more of a case of structuring the arguments that tend towards a certain conclusion rather than fabricating an argument to produce a desired result.

The whole case stands on widening the definition of "open-air recreation" to include caving - and to in mind, it falls down on that definition.

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Here's a thought for you....

My old chum who was a medic explained how it was possible to consider the inside of your intestines as outside of your body.

So, rather than considering your body as a lump of meat, it is actually a tube, but with the tube itself being considered as the body and the "non-tube" being considered outside.

For all intents and purposes, from a philosophical point of view, caving is an "outside" activity. It does not take place within a building. It's just that the particular bit of outdoors has a complex form.

If it is not considered an outdoor activity, there must be some specification which separates a pit/quarry (outside) from a mine (not outside).

Now, this sort of silliness would require a document and an appendix.

Anything requiring an appendix associated with a hobby is BS in my opinion.

'scuse my ignorance but what is CROW and what is the bottom line as regarding access to old mines.

Outdoor activity...activity outside of the outside of a door, indoor activity..activity within the inside of a door, if there's a door on the mine entrance any activity in the mine with the door shut would be inside activity?

Confused..so am I.

Lozz.

CRoW is the Countryside and Rights of Way act, which created the concept of access land in law whereby you can go beyond the confines of public rights of way on ground designated as access land - it's often referred to as "the right to roam".

At the present time the official guidance is that it does not confer the right to enter underground spaces so the bottom line is that in order to legitimately go into a disused mine on access land, you need the owner's permission.

Without going into too much detail of the convolutions of this (read the threads on UK caving if you want all the gory detail and to lose the will to live at the same time...), there have been moves by some sections of the caving community to get the BCA to approach NE/DEFRA about reconsidering the official guidance, specifically hinging on the definition of "open-air recreation", and a QC has been asked for opinion on this matter. This opinion has noted that the term is not tightly defined in law so unless someone brings a test case which will result in a judicial ruling to clarify the law, or the BCA decide to push the matter and persuade the relevant official bodies to change the official guidance, matters rest as stated above.

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Thanks for the explanation AR, I now have an idea about what this thread is about.

"At the present time the official guidance is that it does not confer the right to enter underground spaces so the bottom line is that in order to legitimately go into a disused mine on access land, you need the owner's permission"

The above seems to make sense.

Lozz.

Just to add to AR`s post,the CROW only applies to Common land,
On Private land ,without owners permission,stray from Rights of Way at ones own risk.

Just to add to AR`s post,the CROW only applies to Common land,
On Private land ,without owners permission,stray from Rights of Way at ones own risk.

The CRoW Act also covers land which is not Common Land but which is in private ownership.

http://www.ccw.gov.uk/enjoying-the-country/open-access-land/open-access-maps.aspx?lang=en 

Presumably Natural England have similar online maps.

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Crow gives you access to SOME land and is meant to beef up the protection on other land such as SSSI etc. As a quick 'guide' (you need a proper map to see the definitive areas) upland farmland would be CROW and anything that's green fields or growing any form of crop would not be.

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Drillbilly: your medic mate is quite right in what he said, I have been told similar.

But the relevence to the underground is zero, since the reason a gut is considered 'outside' the body is developmental. Guts developed from flat, nutrient absorbing surfaces wrapping round to create a tube.

Rather unlike the development of caves or mines.

You could argue that it is only the surface which is extended, so it's like a dip which becomes a trench becomes a tunnel becomes a complex "surface".

I think people trying to get holes included in the CRoW are sectionable. I've heard some pretty bloody stupid ideas, but that one takes the biscuit.

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.

Agree - just remember that Mine are not Caves.

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There is a point I feel I aught to make in hope of adding further clarity.

There is mention elsewhere on the Internet of definitions of words and usage of words in legislation. When any question of interpretation of a piece of law comes before a court the court will consider what the thinking was behind the law and the intentions of those who made it, this will override any other consideration.

Dictionary definitions mean not a jot, although arguments based on this may be put forward by the lawyers. Languages are continuously changing and evolving and lawmakers are aware of this and usually define certain words within the piece of legislation itself. Similarly, the meaning of word can be different between different pieces of legislation.

Something to bear in mind.

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I'm liking your signature line! :lol:

I have kept an eye on this thread and find it rather confusing. Firstly, Council's opinion is just that - a (hopefully) learned opinion. The courts will decide individual cases and parliament the legislation. The CRoW Act covers land, but not premises such a buildings and other structures. A mine would, surely, be categorised as a man-made structure in the same way as a buliding, even if ruinous or in just the same way as an abandoned factory. You can wander across moorland, but not into the barns and cottages that might happen to be there.