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CAMBRIAN CAVING COUNCIL Representing Caving in Wales and the Marches

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CAMBRIAN CAVING COUNCIL Representing Caving in Wales and the Marches CAMBRIAN CAVING COUNCIL Representing Caving in Wales and the Marches From: Stuart France, The Smithy, Tretower, Crickhowell, NP8 1RD Tel Work 01495 321569, Mobile 07740 871845, Email: [email protected] Hannah Blythyn AM Deputy Minister for Housing and Local Government Welsh Government Cardiff Bay Cardiff CF99 1NA 20th April 2019 I am writing as the Access-Conservation Officer of the Cambrian Caving Council (CCC) following our conversation at the National Access Forum on 4th April about public access rights to go caving. CCC is recognized by Sport Wales as the national association for caving in Wales. As an autonomous regional body within the British Caving Association (BCA), we also represent cavers, mine explorers and mine history organisations in the Forest of Dean and the Marches as these areas share the same geology. We are very encouraged by your announcement to take forward the Welsh Government’s SMNR access proposals by removing prohibitions for horse riding, cycling, swimming, hang gliding and paragliding on Access Land in Wales, and enhancing access to the coast and cliffs. These sports are ones explicitly excluded from access rights by Schedule 2 of the Countryside and Rights of Way Act 2000 (CROW). Some large and internationally significant caves in South Wales are found in Urban Common land which, being outside the ambit of CROW, is governed instead for public use by the Law of Property Act 1925 (LPA) Section 193. Some cave entrances in these two statutory classes of open land are within former quarries. We would like to bring particular problems concerning all of the above matters to your attention so that the future access framework can resolve them by becoming clearly inclusive of caving. Unlike horse riding, caving is not a sport that is explicitly excluded by CROW Schedule 2, nor are caves excluded places under Schedule 1. However, a highly controversial case has arisen where NRW claims that the words “open-air recreation” used in Section 2 of CROW mean that caving is implicitly excluded from the benefits of CROW Access Land. NRW’s premise is that caves are not open-air places. NRW is using a different pedantic argument to try to position caving outside the scope of the LPA where they claim that caves are not part of the urban common land in which the caves exist. We contend that NRW should be encouraging access to caves for its benefits of active lifestyles and scientific value. In fact NRW and the former CCW have long facilitated access to caves on land they control, subject to limitations based on conservation. We are glad to quote Howard Davies, an NRW board member, summing up as chair of a recent National Access Forum for Wales: “From what I’ve seen here today there is no conservation problem with caving”. NRW has also stated in NAFW minutes “that its interpretation [of rights to go caving] is not determined by conservation issues”. We have struggled to understand why developing such odd interpretations should be paramount for NRW, and we were none the wiser even after holding meetings with NRW at Director and Solicitor level. So as to position caving as an outdoor recreation and bring caves within the scope of CROW Access Land, we suggest that the words “open-air” should be deleted from Section 2 of the CROW Act, i.e. the public right becomes “for recreation on Access Land if and so long as…” Schedule 1(5) of CROW excludes all quarries from access rights – whether they are working, out of use or fully abandoned. This arises because the word “used” can be both past and present tense in English. Disused quarries are an access issue for rock climbers too, as I am sure they will draw to your attention, but they are also a potential problem for cavers because many cave entrances are in former quarries. The simple solution is the Scottish one, as used in the Land Reform (Scotland) Act 2003 (LRSA), by inserting the words “that is” in front of “used” to specify the present tense only. So the quarry must still be extracting minerals in order to qualify for exclusion from recreational access rights. We therefore suggest that CROW Schedule 1 clause 5 is amended to read: “Land that is used for the getting of minerals by surface working (including quarrying)”. NRW claims that the LPA applies to the surface only for recreation. But Section 205 defines land three-dimensionally so as to include strata and whatever else is underneath the land surface and whether held apart from the surface or not. The LPA does not, however, define airspace as part of land. So it seems that a change to deal with airspace will be needed to enable paragliding on urban common land, as envisaged in your announcement. Inserting a phrase similar to the LRSA wording would resolve both the underground and airspace aspects of recreation on urban common land simultaneously. We therefore suggest that the LPA, as it will apply in future to Wales, should be amended so that the definition of “land” given in Section 205 is extended to state that “land available for public recreation includes the land surface and anything beneath or above it”. Matters raised in this letter will need future work and careful clarification, so we also welcome your announcement about forming an independent Access Reform Group to work on the implementation details. The CCC is most willing to participate in and to contribute positively to such a group. Stuart France Access-Conservation Officer on behalf of Cambrian Caving Council .
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