The British Caving Association

Countryside and Rights of Way (CROW) Act.
The much publicised “Right to Roam” legislation has now come into force across the country. Large tracts of land previously out of bounds are now accessible. This includes many caves which are located on land designated “Access land” under this act. This raises the question, “What are we allowed to do at caves on access land?” The act is geared towards “open air recreation”, so wandering around on surface is OK, but what about going underground?

Unfortunately there is nothing in the act to say whether one can or cannot go down a hole. There is a list of restricted activities in Schedule 2 of the act. These include things like shooting, fishing, metal detecting and putting up advertisements, but say nothing about going underground. Is a cave deep under a hill still considered “open air”? Does the absence of a specific restriction for this activity mean that it is allowed?

I am sure this will be of interest to many cavers considering visits to sites that are on access land. I know of one case already where a hostile landowner is attempting to bar underground access to a mine on access land. If any members are versed in the law and are able to comment on how the CROW Act affects us, and whether underground exploration is allowed on access land, their opinions would be of great interest.

My understanding is that CROW gives no rights of access to the underground.

There are a number of reasons why this should be so, largely to the overall benefit of cavers. To give one instance, a right of access to the underground would guarantee that no landowner (of access land) would ever again allow a surface dig on their land.

So far as the current situation is concerned I'd get hold of a copy of BCRA's publication Underground Britain: Legal and Insurance Issues (http://www.bcra.org.uk/pub/studies.html#15) which has just been updated and republished. It costs £3.50. It has a section dealing with CROW. Unfortunately I haven't got a copy in front of me to quote you chapter and verse.

So far as whether we want caver rights to be explicitly in the legislation like the climbers is a good question. It has been debated by the National Council several times. Up until recently the conclusion was that we are better of out of it and to rely on negotiating directly with the landowner as in our existing agreements. Unfortunately as I understand it there are now cases occurring where we are losing existing agreements because of CROW. That reopens the debate. Maybe we should lobby Government to be included in the legislation.

Although I think CROW is good in principle, so far as cavers are concerned its starting to look like Hobson's choice.

Cookie is spot on. The completely clear leagl situation (post CROW) is fully expained in Cave Studies 12 "Underground Britain; Legal + Insurance Issues" (1st or 2nd editions). Owners of land are deemed in law to own to the very centre of the earth, including caves beneath such land. CROW does not alter to law so far as access to caves is concerned.

My strongly felt personal belief, following lots of discussions with lots of cavers and others, is that the status quo is in our best interests. I think that a free for all at many of our most visited cave (and potholes particularly) would, long-term be a potential disaster. When it comes to remote, minor, little visited locations - in practice who the hell cares and who the hell is likely to know, so long as one is modestly discrete!

There is currently a powerful move within government to bring in additional legislation (possibly in part motivated by the Land Reform Scotland Act 2003) in the area of access to water, both coastal and inland I believe. If we (cavers) were united and so minded, then it might well be possible to get an amendment to CROW through on the back of this. Personally I am extremely cautious on this one!!!

David Judson Legal+Insurance Officer; BCA.

Cookie - no, not "Hobsons' Choice", more like "The Curate's Egg".