Caving and CRoW
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The CRoW debate
ON 24 July 2014 Wild Places Publishing was asked to host an Opinion prepared by a QC which considered aspects of the Countryside and Rights of Way Act 2000 (CRoW), which came into force in 2005, and its interpretation relating to caving. The document was placed online at the same time as the following Introduction with its links to background information and other resources. On 31 July another request was made, this time to host a An Alternative View discussing points raised in the QC's Opinion. It should be noted that neither of these documents represent BCA policy; a BCA meeting was held on 16 August 2014 and work towards a formal policy is reported to be proceeding.
All cavers should carefully consider these documents and the arguments presented through the pages of Descent (see below).
CRoW and how it has been interpreted by authorities such as Natural England and Natural Resources Wales has been covered widely in Descent – in particular, see Descent (235) for an analysis of caves on CRoW land in Northern England, Descent (237) for a closer look at what rights the act actually confers and how it is being interpreted, and Descent (238) for an authoritative letter rounding up the discussion points. The status and arguments for change were published by a BCA Working Party as a Report and Appendix.
Those interested in delving further into the matter should consult the original CRoW ACT 2000 (but note that some aspects are due to or have been updated from the original, under 2006 legislation, and are marked as such in this linked document). The law has been placed into lay language by both Natural England (this page links to several useful documents examining aspects of the law, including maps of open access land, restrictions under the Act, and your rights relating to access and activities specifically banned by the law) and Natural Resources Wales (which still uses the former Countryside Council for Wales documentation). The fact that part of these documents as written are interpretations is an important point, as these web pages explain how the two organisations apply the law and this is, of course, the matter relating to caving under current discussion.
This is a vast arena of documentation and discussion. For those seeking a short overview, CCW produced a pdf covering frequently asked questions. A document prepared by the Yorkshire Dales National Park covers the same ground in greater detail via links.
Much of the argument to exclude caving as a right comes from interpretation of the CRoW wording 'open-air recreation', where Natural England and Natural Resources Wales consider that this does not including caving beyond sight of open sky. Obviously, whatever cavers decide they wish to see happen, this would be moot without a legal framework to challenge this interpretation. A legal opinion was sought by three independent cavers, resulting in an Opinion by Dinah Rose QC released on 24 July and hosted here on the Descent website; the document may be downloaded from the link above, and is reproduced below.
All cavers should consider these documents as essential reading. In the end, it will be up to you to decide the best course for the future of British caving, in the sense of whether and how to present Natural England and Natural Resources Wales with a compelling argument that would establish caving access on CRoW land as a right, or to remain with the status quo. The problem is that with any possible increase in access by right, there come the issues of continued landowner relationships (where whatever happens, the landowner will continue to control the right to dig) and conservation. Your opinions are being sought by BCA via your regional caving councils, in advance of a meeting in mid-August 2014, so please take the time to consider all angles and feed back your thoughts.
Opinion on CRoW and Caving
IN THE MATTER OF:
MEMBERS OF THE BRITISH CAVING ASSOCIATION
THE APPLICATION OF THE COUNTRYSIDE AND RIGHTS OF WAY ACT 2000 TO CAVING
1. I am asked to advise members of the British Caving Association whether the right of public access to the countryside for the purposes of open-air recreation, which is provided under the Countryside and Rights of Way Act 2000 (“CROW”), applies where access is being sought for the purpose of recreational caving.
Summary of conclusions
2. In summary, for the reasons set out below, in my view:
3. Accordingly, I consider that the right of access granted under CROW should properly be read as applicable to access to land for the purpose of recreational caving.
4. The activity of caving or potholing with which this opinion is concerned has been defined in my instructions as being normally an act of progression through passages in rock which usually have a “roof” of rock, but which may include large entrances or shafts which are open to the sky. Death’s Head Hole, for example, has an entrance shaft open to the sky which is 80m deep. The passages may be natural, or may be abandoned mines. Some natural caves have entrances which have been dug out or enlarged. Some caves have structures, which may include gates or other barriers (such as a lid), at their entrances, through which cavers pass to enter the cave system.
5. Caving may include abseiling, climbing, scrambling, walking and crawling, frequently through water.
6. Caves are normally found in limestone. The geographical areas in England and Wales which contain the most significant cave systems are Derbyshire (the Peak District), Lancashire, the Yorkshire Dales, the Mendip Hills in Somerset, and South Wales.
The statutory framework
7. CROW’s preamble describes its purpose, as far as is material, in the following terms:
8. Part I of CROW is headed “Access to the Countryside”, and Chapter 1 establishes a new statutory right of access to certain types of land.
9. Section 2(1) of CROW provides:
10. The central issues with which this opinion is concerned are thus the meaning of “access land” and the meaning of “open-air recreation”.
11. “Access land” is defined by section 1(1). It includes any land which:
but does not include excepted land or land treated by section 15(1) as accessible to the public apart from CROW.
12. I am instructed that in England, there are some caves which are on registered common land, and some which are on dedicated land (including land belonging to the Forestry Commission), but that the great majority of English caves lie on land which has been identified in the appropriate maps as “open country”. I am told that there is no equivalent analysis for Wales.
13. “Open country” is defined at section 1(2) as meaning land which:
14. The “appropriate countryside body” is defined in the same section as Natural England (in relation to England) and the Natural Resources Body for Wales, in relation to Wales.
15. By paragraph 2 of Schedule 1 to CROW, land covered by buildings or the curtilage of such land is “excepted land”, excluded from the definition of access land set out above.
16. By paragraph 14 of Schedule 1, a building includes any structure or erection, but does not include any fence or wall, or anything which is “a means of access” as defined by section 34 of CROW.
17. By section 34, a means of access includes:
18. In stark contrast to the elaborate definition of access land summarised above, CROW does not define the term “open-air recreation”.
19. My instructions have carefully tracked the legislative history of the use of this term. It appears originally to have derived from the Access to Mountains Act 1939, which was never brought into force. It was then included in section 5 of the National Parks and Access to the Countryside Act 1949 (“the 1949 Act”).
20. Section 5(2) of the 1949 Act defines areas to be designated as national parks as “those extensive tracts of country in England to which it appears to Natural England that by reason of (a) their natural beauty, and (b) the opportunities they afford for open-air recreation, having regard both to their character and to their position in relation to centres of population, it is especially desirable that the necessary measures shall be taken …”.
21. There is no definition of the term “open-air recreation” in this earlier legislation.
22. The 1949 Act was, however, preceded by the report of a committee, known as the Hobhouse Report. That Report uses the term “open-air recreation” (also without defining it). It also includes an Appendix which discusses the proposed national parks. In relation to the Peak District, it states:
23. The same Appendix states, in relation to the Yorkshire Dales:
24. This material provides some support for the notion that the phrase “open-air recreation” was originally envisaged as encompassing caving, just as it included climbing, walking and other similar activities.
Principles of statutory construction
25. The function of a court when construing legislation is to interpret it in accordance with the intention of Parliament. Key principles include the following:
26. As set out above the category of “open country” is the most important form of access land on which cave systems are situated. As I understand it, for most of the relevant areas, there are caves which simply fall within an area designated as open country on a relevant map. There are, however, at least two instances (Eldon Pot in Derbyshire, and Marble Steps in Yorkshire) in which the cave entrance has been excluded (for unknown reasons) from the area identified as open country on the map. In those cases, the requirements of section 1(1) would not be met, and the cave entrance would not be situated in open country as defined in the legislation.
27. However, in cases where the cave entrance and cave system falls within the area identified as open country on the map, there is no reason under the legislation to regard the cave as not being situated on access land.
28. Natural England has suggested in email correspondence with Tim Allen of the BCA that caves systems might not properly be regarded as being covered by the CROW maps of mountain, moor, heath, down or registered common land (“MMHDC”), because the content of the maps is “driven by what is on the surface of the land as opposed to what is underneath it”, and caves “by definition” are not MMHDC.
29. I consider this to be a bad argument in law. The relevant question under CROW which determines whether a particular piece of land is to be defined as open country is whether it is shown as “open country” on the appropriate map. It will be so shown if it appears to Natural England to consist “predominantly” of MMHDC. Features within the area shown on the map which do not themselves consist of MMHDC are nevertheless “open country” if they are in an area which predominantly consists of such features, and are accordingly marked on the map as open country.
30. Natural England have stated in the same email correspondence that they consider the term “open-air” recreation to be different from, and narrower than, “outdoor recreation”. They consider caves which are “enclosed from the air” to fall outside this definition. They accept, however, that “some large open caves on the side of mountains” would fall within the definition in CROW.
31. There is a superficial attraction to this approach, based narrowly on the language of the legislation. However, in my view, more considered appreciation of the context and history of the term, and the overall statutory purpose, leads to the conclusion that Natural England’s construction is incorrect.
32. The Oxford English Dictionary defines “open-air” as meaning:
33. The Collins Dictionary defines the term slightly differently, as follows:
34. Both of these definitions, on analysis, contain two somewhat different strands of meaning: (1) outdoors – ie., outside a building; and (2) the place where air is unconfined, and open to the weather.
35. The term must be read in its proper context, and in accordance with the purpose of the legislation. The definition of “access land” contained in CROW, as set out above, specifically excludes land within a building. CROW, like the 1949 Act in which the term previously appeared, is clearly concerned with enabling access to the countryside to promote the enjoyment by members of the public of healthy, outdoor activities. The Hobhouse Report, considered above, lends support to this approach. It is of some significance that the authors of that Report appear to have considered that caving was a form of open-air recreation, in the sense that it was an outdoor activity which was frequently carried out in the areas to be designated as National Parks.
36. Overall, in my view, the context and purpose of the legislation support the interpretation of “open-air” as meaning, essentially, “outdoor” or “outside a building”, rather than being concerned with the unconstrained air open to the sky.
37. It is easy to see why Parliament was not intending to permit the public to access buildings. It is much harder to see why it should have been concerned to permit access only to locations with a view of the sky, or unconstrained air. Caving is an activity of the same kind as climbing, abseiling, scrambling, canyoning and walking, all of which are obviously intended to be included within CROW. There does not appear to be any policy reason for excluding caving from the scope of the Act.
38. It is harder still to see why Parliament should have intended, as Natural England apparently believe, to include within the scope of CROW caves which are “open to the sky”, on the side of mountains, or with open shafts, but to exclude cave systems with underground passages. The distinction is unprincipled. It tends to undermine the policy of the Act, by placing an arbitrary restraint on some forms of caving but not on others.
39. Caving clearly takes place out of doors, in the sense of being outside a building. The exclusion of means of access such as gates from the definition of buildings under CROW itself makes this clear.
40. Put shortly, the interpretation of “open-air” in CROW as meaning “open to the sky” rather than “outdoor” is in my view too technical and narrow, and does not accord with the policy of the act, or lead to a rational outcome.
41. The matter is not entirely free from doubt, since the term “open-air” is undefined, and may carry different shades of meaning. However, I conclude, for the reasons set out above, that the better view is that caving is a form of “open-air recreation” for the purposes of CROW, and that cavers are permitted to enter and remain on access land shown as such on the relevant maps, including cave systems falling within those areas, for the purpose of recreational caving.
DINAH ROSE QC
23 July 2014
An Alternative View
IN THE MATTER OF THE APPLICATION OF THE COUNTRYSIDE AND RIGHTS OF WAY ACT 2000 TO CAVING
AN ALTERNATIVE VIEW
1. Dinah Rose QC (“Counsel”) has provided an opinion to certain individual members of the British Caving Association (BCA) on the application of the Countryside and Rights of Way Act 2000 (CROW) to caving. In considering this opinion, the adversarial nature of English law must always be borne in mind. In every case to come before a judge (or jury in criminal cases), there are two parties with opposing views, and those parties must seek to establish the truth of their case or their interpretation of the law. It is for the judge to decide which party has done that. Thus English law is, in essence, a contest between two opposing sides, and at the end of the day, only side will emerge the winner, but in many cases, both sides will field QCs to argue their view of the law.
A QC’s opinion is therefore just what it says, it is an opinion. In this case, Counsel was briefed by a group of individuals, some of whom have a particular view and who have been pressing that view for some time. It therefore comes as no surprise to find that Counsel’s opinion accords with that of those who provided the brief. However, it is demonstrably the case that certain matters do not appear to have formed part of Counsel’s brief or, if included, were not given sufficient weight and, in addition, there are other areas where a different construction of the words used will enable a different conclusion to be reached. Unless something has been referred to in Counsel’s opinion, it is impossible to tell whether it has been considered or not, therefore this analysis can only concern itself with the statements that have been made.
This report has been prepared by Linda Wilson (retired solicitor, non-practising), at the request of David Judson (Convenor of the BCA’s Legal & Insurance Committee), after detailed discussion with him, and is being presented jointly with him.
2. In section 2.1 of her Summary of Conclusions, Counsel states:
However, it is clear that cave systems cannot be defined as being any of these four elements of the countryside, therefore they cannot be said to have formed part of the original legislative intention. Whilst a cave or part of a cave might lie beneath mountain, moor, heath or down, it does not consist of any of these and is, in fact, a wholly separate entity to which wholly separate considerations apply.
3. Counsel then considers the recreational nature of caving and whether caving is an “open-air recreation”. As she admits, the term is not defined in the Act and further admits that its scope is not entirely clearly. But, as Counsel notes, a narrow reading of the term would exclude caving and she is of the opinion that this does not accord with the purpose of CROW.
The fundamental problem with this opinion is that it presupposes CROW was intended to cover caves. From the opinion that has been given, the brief to Counsel does not appear to have made any reference to the deliberations of the National Caving Association (NCA), the national body for caving at the time of the prior consultations, or if such reference was made, then insufficient weight has been given to the submission. Counsel’s opinion does not reflect the advice and input at the time from the national body, which was against the inclusion of caves in the legislation. The matter was discussed extensively by the NCA when legislation was proposed and the consensus then was that caves should not be included within the ambit of CROW for reasons of conservation, safety and landowner relations. NCA lobbied against any application of CROW to caving, and this is reflected in the fact that the Act refers solely to “open-air recreation”.
It should also be noted that in this context, “open-air” can equally be read in the sense of being the opposite of two common antonyms, namely “enclosed” and “confined”, and caves are both.
4. Counsel says that:
Including caves within the ambit of CROW will lead to other, equally, arbitrary distinctions, of the type that Counsel is clearly seeking to avoid. Cave systems are not constrained by surface boundaries. They can lie beneath land in a variety of different ownerships, and an entrance on CROW land can lead to a cave system that is not under CROW land. Therefore by allowing access under CROW, access is, de facto, being allowed to land not covered by CROW and that was never intended to be covered by CROW. In addition, that cave systems have not been mapped as part of the statutory process of defining access land (the fact that they may have been mapped in other contexts by cavers is not relevant when considering the statutory framework of the Act) and therefore they cannot form part of access land. This is the view held by the Department for Environment, Food and Rural Affairs (DEFRA).
There is a further material point that needs to be considered in this context. CROW gives greater protection to landowners in the event of a personal injury claim, but no such protection is afforded to other landowners whose cave systems would be accessible without restriction and such landowners would be at risk of an action without being able to rely on the protections CROW confers, despite the fact that it would be CROW that had facilitated access to their land. This is an important matter of public policy that Counsel’s opinion wholly fails to address. As Counsel states on the principles of statutory construction: “An interpretation which leads to an arbitrary or absurd result should be avoided.”
5. Counsel says that:
Counsel has either failed to recognise, or was not briefed on the fact that there are wholly different conservation considerations that apply to cave sites that do not apply to any of the other activities mentioned in this paragraph. Many cave systems contain fragile formations and deposits, and access systems have been put in place for a variety of different reasons, such as the need to protect the cave, and also for reasons of public safety. Many caves are designated as Sites of Special Scientific Interest and even in some cases as Ancient Monuments, and both the site designations and the lists of Potentially Damaging Operations are different for underground and over-ground sites, therefore the two cannot simply be regarded as one and the same.
If caving was intended to be covered by CROW, then it can just as easily be argued that this would have been made explicit in the Act, as it is in Scotland, where the situation is wholly different and there caves are explicitly within the ambit of the relevant Act. The Land Reform (Scotland) Act 2003 states, in Section 1(6) “Access rights are exercisable above and below (as well as on) the surface of the land.” If CROW had been intended to apply to caves in England and Wales, then the way was open for the inclusion of simple wording of this type to have been used. Scotland has far fewer caves and at the time the legislation was enacted, no restricted access systems, therefore wholly different policy considerations applied.
In England and Wales there is a perfectly good policy reason for restricting access to a cave system even though the entrance area remains accessible. In a large number of cases, the conservation (and safety) considerations do not necessarily come into play until the caver has gone beyond the ‘open air’. For these reasons, cave systems were never intended to be subject to the provisions of CROW.
6. Counsel concludes the section headed “Summary of Conclusions” by saying:
For the reasons stated above, it is clear that Counsel’s opinion has not properly considered the whole legislative context, in particular the contrast between the law in Scotland and in England & Wales, and the views expressed at the time on behalf of the national body. Nor has it addressed the problems of the mapping of cave systems in the context of CROW or taken any account of the fact that rights granted on one area of land could lead to unauthorised access in another area, for which reasons, DEFRA has stated unambiguously that in their view, caving is not covered by CROW. Nor have the conservation or safety reasons as expressed in the consultation process by the then national body been considered as a reason why caving was not explicitly included in the Act.
7. In the section headed “The Statutory Framework”, Counsel acknowledges that the central issues with which her opinion is concerned are the meaning of “access land” and the meaning of “open-air recreation” and refers to the fact that access land includes land which is shown as “open country” on “a map in conclusive form issued by the appropriate countryside body for the purposes of Part 1 of the Act”.
Whilst some caves entrances are shown on such maps, the caves themselves are not. These maps do not extend to any areas underground, nor do they show the cave system in relation to any overlying land, therefore in the absence of a specific statement to include the underground, such as the one in the Land Reform (Scotland) Act, any argument for their inclusion has to be open to serious doubt, as caves cannot be said to meet this definition of access land.
Also in this section, Counsel refers to the Hobhouse Report, which preceded the National Parks and Access to the Countryside Act 1949, making mention of caving within the context of open air recreation, and this is used as an argument in favour of seeking to include caves within the ambit of CROW. However, this argument does not take account of the fact that at the time of the Hobhouse Report, there were few, if any, caves covered by the sort of access agreements that are common today, and little recognition of the need to restrict access for the purposes of both conservation and public safety. Thus the Hobhouse Report and its mention of caving needs to be read in their then context, and it needs to be understood that this context had changed greatly in the 50 years that led up to the enactment of CROW.
8. In the section headed “Open Country”, Counsel says that:
As has been demonstrated above, the national body for caving considered and lobbied against the idea of access rights applying to cave systems, therefore when the maps were being drawn, some cave entrances that were large enough to have been marked on the maps were excluded. This was not for unknown reasons, although it appears that the reasons were unknown to Counsel. The exclusion of these entrances provides a clear indication of the original legislative intention to exclude caves from the definition of “open country”. If that was not the intention then there would be no reason for the exclusion of these two entrances.
Also in this section, Counsel turns again to the question of mapped land and disagrees with an opinion offered by Natural England and DEFRA that caves systems cannot be regarded as being covered by the CROW maps of mountain, moor, heath, down because the content of the maps is “driven by what is on the surface of the land as opposed to what is underneath it”. Counsel considers this argument to be wrong in law and prefers to consider caves as being within the definition of “open country” if they are in an area which predominantly consists of such features. Again, by adopting such an approach Counsel is failing to take account of fact that other features such as rock crags are shown on the relevant maps, whereas as demonstrated above, cave system, are not shown on the maps, as the maps in question do not extend below the surface of the ground and therefore cannot reasonably be brought within this definition.
In the section headed “Open-air Recreation”, Counsel seeks to set differing dictionary definitions into the context of the Hobhouse Report, referred to above, however, as already stated, the Hobhouse Report was written some 50 years before CROW was enacted. The need to conserve and protect certain caves had not at that time received much, if any, consideration, whereas CROW was enacted against a very different conservation ethos and legislative background, in particular The Wildlife and Countryside Act 1981.
Counsel returns again to the seeming illogicality of excluding caves from the ambit of CROW but the intention of Parliament can be seen in a completely different light when it is understood that at the time, the national body for caving was not lobbying for the inclusion of caves within the ambit of CROW, and that quite to the contrary, its view then was that caves should be excluded from it.
Counsel cannot understand why Parliament should have sought to
The exclusion of Eldon Hole and Marble Steps demonstrates that Parliament did intend to exclude such large open entrances from the Act. It is simply the case that not all such large, open entrances ended up being marked, most likely because they were not marked in such a way as to be picked up by the draftsmen when the maps were drawn. All Natural England have done in the cited correspondence is to acknowledge, with some obvious and evident reluctance, that the Act could possibly be read in such a way.
The alternative view of ‘enclosed’ and ‘confined’ has been put forward above, as has an explanation for why Parliament did not intend to include caves within CROW, and it will be seen that taken in this context, the interpretation is neither too technical nor too narrow, nor is it in any way irrational.
9. In the section headed “Conclusion” Counsel admits that:
It is clear from this that, as ever in English law, there is more than one way of interpreting an Act of Parliament. As has been demonstrated above, there are alternative meanings that Counsel has not considered, and reasons for the exclusion of caves from the legislation that do not appear to have formed part of Counsel’s brief. However, as both Natural England and DEFRA have stated throughout the correspondence, the final and only arbiter is in fact a court of law.
David Judson (Convenor, Legal and Insurance Committee of the British Caving Association)
Linda Wilson (retired, non-practising solicitor)
31 July 2014