This article first appeared in the South Wales Caving Club newsletter for April 2018 and is reprinted here with kind permission from the author Gary Vaughan and the South Wales Caving Club. Gary wishes it to be known that the views expressed in this article represent his own personal views and not necessarily the views of the South Wales Caving Club.
The ‘Definitive Opinion’ on CRoW and Cave Access
There has been much by way of speculation in recent years as to what rights (if any) the Countryside and Rights of Way Act 2000 (CRoW) bestows upon the humble British Caver to pursue pastimes related to caves in areas of England and Wales that are located in or under land that has been designated as ‘Access Land’ under that Act. Some would say that CRoW does not grant any rights in relation to the pastime of caving, whilst others would argue that, when correctly interpreted at law, actually CRoW does bestow rights of access to enter and explore cave passage. There is also a third perspective, one which asserts that if CRoW does not currently grant rights in relation to the pastime of caving, then a campaign should be made by British Cavers to the effect that access to caves is made available under a future modified version of CRoW.
This article seeks to suggest to the reader a common-sense interpretation of where we currently are and what in all probability would be the likely outcome of legal proceedings that considered the issue. Just to be clear here from the outset, I have absolutely no training in Law. I practice as an expert witness in the field of surveying and the interpretation of maps. What I hope to show here is that there are striking similarities between the system for recording public rights of way on a map, known as the ‘Definitive Map’, and the system for recording rights of access to Access Land on a map known as the ‘Map in Conclusive Form’. This is my un-biased expert opinion on certain co-incidences with the ‘Definitive’ Map based system and tongue in cheek I have titled the article as a ‘Definitive Opinion’.
The concept of definitive maps
Prior to 1949 there did not exist in England and Wales a definitive resource for establishing the existence of a public right of way. Basically, if you were walking along what you believed to be a public footpath and the landowner or his agent challenged your right to walk along that footpath, you were faced with a choice; option one, back away from the issue and take another route; option two, mount a challenge through the High Court to prove that in fact the way was a public way.
If litigation in the UK was the same in the 1940’s as it is today, such a challenge carried great risk. The costs of losing a claim against a landowner would have been potentially bankrupting for a private individual. Wealthy landowners were almost certainly in the driving seat when it came to the issue of who could walk on the footways, ride on the byways or drive on the crossroads of England and Wales.
Enter the National Parks and Access to the Countryside Act 1949 (The 1949 Act). This act made it obligatory for the ‘surveying authorities’, (in effect the County Councils and Unitary Authorities) to draw up and maintain a “definitive map and statement” of all of the public rights of way within the area covered by each authority.
The preparation and production of these ‘Definitive Maps’ was a substantial piece of work and a substantial work force was brought together to see the work through. Of particular interest here in this article is the similarity of process between the two Acts, The 1949 Act and CRoW.
Part IV of the 1949 Act deals with ‘Public Rights of Way’. This part commences at section 27 of the 1949 Act. What I hope to show here is a brief process of how the 1949 Act set about casting the Definitive Map into what amounted to be ‘conclusive’ evidence of a public right.
1)…….Section 27 sets out an obligation for the councils of every county in England and Wales to carry out a survey of ‘all lands in their area over which a right of way to which this part of this Act applies is alleged to subsist,……….’ The maps to be produced were also to show ‘any way’ which in the opinion of ‘the authority’ was at the relevant date reasonably alleged to be a road used as a public path.
2)…….Section 29 of the 1949 Act sets out a process for publication of ‘draft maps’ and draft statements and sets out procedures for the process of representation and objections.
3)…….Section 30 of the 1949 Act sets out the process of publication of ‘Provisional Maps and Statements’.
4)…….Section 31 of the 1949 Act sets out the process for ‘determination of disputes’ as to the Provisional Maps and Statements.
5)…….Section 32 of the 1949 Act is titled ‘Preparation, publication and effect of definitive maps and statements’. Critically, ‘A definitive map and statement prepared under subsection (i) of this section shall be conclusive as to the particulars contained therein…..’
a) where the map shows a footpath, the map shall be conclusive evidence that there was…….. a footpath……
b) where the map shows a bridleway or a road used as a public path, the map shall be conclusive evidence that there was……… a highway as shown on the map, and that the public had……. a right of way on foot and a right of way on horseback…….
It is very clear therefore that the Definitive Map is a powerful legal document. It represents conclusive evidence that public rights exist over the ways depicted upon it. It is a tried and tested system of recording the extent of public rights. In my role as an expert surveyor I am often called to give evidence to a court with respect to Definitive Maps and Statements. Whilst the interpretation of the legal status of a particular way is very much a matter of law and for those with legal training to discuss or argue over, the interpretation of a Definitive Map is a role which is usually carried out by an expert surveyor. Judges are simply not qualified to examine and make findings from maps (although many do) and therefore ultimately when it comes down to the precise interpretation of these definitive maps the Courts are very much in the hands of those trained in surveying and cartography.
The concept of a Map in Conclusive Form
Fast forward fifty years. The 1949 Act significantly changed a lot of things when it came to access to the countryside, but fifty years on it was clear that a further Act of Parliament was required to extend, tweak and in some cases curtail public rights. It may not have escaped your attention but the word ‘conclusive’ is used extensively to describe the Definitive Map in the 1949 Act. It strikes me that calling a new map ‘Definitive Map 2’ or ‘Definitive Map Rides Again’ was deemed to be likely to lead to confusion. Instead a new name was arrived at, a name that simply rolls from the tongue!
The following seeks to draw similarities between the points numbered 1 to 5 above.
1…….In a similar fashion to the 1949 Act which placed a burden on the ‘Surveying Authorities’ to draw up and maintain a definitive map, CRoW places a burden on ‘the appropriate Countryside body (The Countryside Agency (CA) and the Countryside Council for Wales) (CCW) to issue a map in conclusive form. Section 4 of CRoW sets out an obligation for the CA and CCW to prepare maps to show all registered common land and all ‘open country’.
2…….In similar fashion to Section 29 of the 1949 Act, Section 5 of CRoW places an obligation on the CA and CCW to issue in draft form any maps prepared in accordance with Section 4 and to consider any representations received within a prescribed period.
3…….In similar fashion to Section 30 of the 1949 Act, Section 5 of CRoW also places an obligation on the CA and CCW to issue the map in ‘provisional form’.
4…….In similar fashion to Section 31 of the 1949 Act, sections 6, 7 and 8 of CRoW sets out the process for ‘determination of disputes’ and appeals made to The Secretary of State or the National Assembly for Wales.
5…….In similar fashion to Section 32 of the 1949 Act, Section 9 provides that ‘the appropriate countryside body shall issue the map…… as a map in conclusive form’. Section 1 of CRoW defines ‘Access Land’ as any land which is shown as open country on a map in conclusive form.
It is clear, in my opinion at least, that there are numerous similarities between the processes set out in the 1949 Act to create the definitive map and the processes set out in CRoW to create a map in conclusive form. In my experience of such matters the similarities in the process are not by chance. They are similar because both Acts intend for the maps created to be conclusive evidence of the features which they depict. My point to you the reader is thus; if a path or track or road is not shown on the definitive map as a public right of way then it is not a public right of way. If a piece of land, or a crag or river or cave, is not depicted on the map in conclusive form as registered common land or open country, then in accordance with the express wording of CRoW, unless it is either
i) registered common land for which no such map has been issued.
ii) situated 600 m above sea level or
iii) dedicated under Section 16 of CRoW
it cannot and should not be considered to be ‘access land’.
Specifically, if we ask ourselves what rights are factually granted under CRoW we should look to Section 2(i) of CRoW which states “Any person is entitled by virtue of this subsection to enter and remain on any access land for the purpose of open air recreation……..”
Significantly in my view Section 2(i) does not say enter and remain on any mountain or heath or moorland. It specifically limits the rights prescribed to ‘Access Land’.
If we ask ourselves ‘what is the definition of ‘Access Land?’, we must concede that the very first subsection of the very first section of the very first chapter of the very first part of CRoW sets out the definition of ‘Access Land’. This is not a term buried deep in the text of CRoW. It is clearly a term that the authors of CRoW deemed to be so critically important to CRoW they give it pride of place within CRoW.
I would suggest here that the definition of Access Land is not vague or ambiguous. There are five definitions and each definition is set out in clear English a) to e). The definition that we are most particularly concerned with here is the first definition at a) which in effect reads….
“access land means any land which is shown as open country on a map in conclusive form issued by the appropriate countryside body for the purposes of this part.”
What I would say about that as an expert surveyor is that access land is not something that a person can form a view on by standing on the land and looking at it; the legal mechanism which makes it ‘access land’ demands that :
i) It is shown on a map in conclusive form
ii) It is shown as open country.
Those who would argue that CRoW includes a right to go caving need to consider whether the cave or caves in question can rightfully be considered to be ‘access land’. From my expert perspective, the issue boils down to one question, ‘is the cave or are the caves shown on the map in conclusive form as open country?’
I cannot speak for all surveying experts but the blindingly obvious truth in this matter is that….
i) Firstly, caves or cave passages are not depicted at all on the map in conclusive form and
ii) Caves are not shown as land and they are not shown as open country on the map in conclusive form.
From my simple expert perspective therefore, caves can never be considered to form access land unless they are:
i) over 600 m above sea level.
ii) registered as common land for which no such map has been issued
iii) dedicated as access land under Section 16 of CRoW.
To conclude this part of my opinion therefore I must report that there is no credible possibility that a Court will find that caves constitute Access Land and therefore they remain private property just like any other private property in England and Wales that is not designated as Access Land.
The opinion of Queen’s Counsel on the Definition of ‘Access Land’
I have seen Queen’s Counsel Opinion which states that cave systems that are situated in an area which has been identified as “open country” are properly to be regarded as forming part of that open country. The justification for such a conclusion is not made abundantly clear within the main text of the opinion. The wording of the opinion discusses the term ‘open country’ at some length, yet fails to make the distinction between Open Country and Access Land i.e. that Access Land is land depicted on a map in conclusive form as Open Country.
Three suggestions are made within the opinion.
i) That two specific known caves, Eldon Pot and Marble Steps have had their respective cave entrances excluded from the area identified as open country on the map in conclusive form. Counsel suggests that in those two instances the requirements of section 1(i) of CRoW would not be met.
ii) That where a cave entrance and cave system fall within an area identified as Open Country on the map in conclusive form that there is no reason under the legislation to regard the cave as not being situated on access land.
iii) That the position taken by Natural England that cave systems might not properly be regarded as mountain, moor, heath, down or registered Common (MMHDC) is a weak argument on the basis that CRoW is driven by whether a particular piece of land is shown as open country on the map in conclusive form. Counsel suggests that features depicted within an area on the map in conclusive form as open country and which features are not themselves consisting of MMHDC should nonetheless be considered to be “open country”.
Taking each of these suggestions in turn.
i) The exclusion of Eldon Pot and Marble Steps is conceded by Counsel as an indication that these two caves should not be considered to be included in land falling under the definition of Access Land. Both cave systems fall within areas which are predominantly Access Land. The logical conclusion therefore would be to assume that they have consciously been excluded by the authority who prepared the map in conclusive form. This would seem to suggest a conscious intent on behalf of the authority charged with the production of the map in conclusive form to exclude caves from the areas depicted as ‘Open Country’. Logically most cave entrances would not show on a map of the scale used to depict Access Land.
Arguably Eldon Hole and Marble Steps are two of only a very small number of entrances large enough to show as being excluded. The logical inference to draw would be that if in some way the mapping could be presented to a large enough scale, all such cave entrances would be excluded from the areas marked as Open Country.
ii) Counsel suggests that there is no reason under the legislation not to regard a cave as constituting access land. This suggestion however does not sit well with the definition of ‘Access Land’ and the need for it to be shown as open country on the map in conclusive form. Clearly the two examples of caves cited above were large enough to be shown on the map but were excluded. The simple fact remains that caves are not shown as open country on the map in conclusive form. That fact alone is a clear and concise legal reason for specifically regarding caves as not being access land.
iii) The suggestion that certain features situated within open country which do not consist of ‘Open Country’ nevertheless should be considered as open country does not sit well with the concept of ‘Excepted Land’. Under CRoW, such areas as land that has been ploughed or drilled for agriculture, land forming part of a curtilage of a building, land used for mineral workings or land which is regulated by byelaws relating to military land all fall under the definition of Excepted Land which under CRoW is land that is situated within open country but is specifically not to be considered as Access Land.
To conclude my critique of the Queens Counsel opinion I consider that Counsel is correct to point out that CRoW is driven by whether a particular piece of land is shown as open country on the map in conclusive form. That proposition fits well with my own reasoning as I have set out above involving rights of way, the 1949 Act and the Definitive Map. To suggest, however, that the definition of access land extends to subterranean passages not depicted upon the map in conclusive form does not fit with the legal definition of Access Land and neither does it sit well with the concept of Excepted Land. The schedule of excepted land with CRoW makes it clear that even though the map in conclusive form may show a feature as open country, certain criteria exist to exclude certain features from the definition. Those criteria were in my view driven by the simple need to cover features that may be marked as Open Country but are not. In truth, caves are not marked on the map in conclusive form as Open Country and to suggest that CRoW should be considered as globally encompassing cave passage is, in my view, simply over optimistic.
A Counter Opinion on the Definition of ‘Access Land’
I have seen an alternative opinion on the definition of Access Land. That opinion was primarily put forward with a view to countering the QC’s opinion considered above. Three suggestions are made within the rebuttal opinion with regards Access Land.
i) That whilst a cave or part of a cave might lie beneath an area identified as Open Country, a cave does not consist of either mountain, moor, heath or down and in fact is a wholly separate entity to which separate considerations apply.
ii) That whilst some cave entrances are shown on the map in conclusive form, the caves themselves are not and thus caves themselves cannot be said to meet the definition of access land.
iii) That some large cave entrances were marked on the map in conclusive form as excluded from open country because that was the intention of the legislation.
I find the suggestions made above to be more in keeping with a logical interpretation of CRoW. Caves are certainly not mountain, moor, heath or down, they are unique indeed and accordingly if CRoW had been intended to make provision for caves as access land surely some form of clarification would have been appropriate. Most cave entrances are too small to show on any conceivable map scale that could be used to publish a map in conclusive form. It would be impossible to remove the entrances from the areas marked as Open Country. It follows, in my view, that simply because the map in conclusive form lacks the technical ability to show all cave entrances as excluded, this does not lead to a legitimate presumption that all cave passages should be considered Open Country.
The examples of Eldon Hole and Marble Steps are referenced again in the rebuttal opinion, the suggestion being that the exclusion of these entrances reflects the true intention of the legislation. Whether it does or does not reflect the true intention is perhaps a matter for debate. More to the point, however, the appropriate countryside body which drew the draft map in conclusive form regarded these particular caves as not constituting open country and thus took a conscious decision to remove them from the draft map. It strikes me that anybody with the view that caves rightly should be considered access land could have lodged a representation to the appropriate body in accordance with Section 4 of CRoW. Assuming that the appropriate body did not accept any such representations made under Section 4, anybody could have appealed the Provisional Map in accordance with Section 6, 7 and 8 of CRoW. I am unaware of any such appeals made with respect to Eldon Hole or Marble Steps. My first presumption would be that there were none and that the Preliminary Map passed into a Map in Conclusive Form in the instances of both caves and in accordance with Section 9 of CRoW.
In my view a precedent has been set by these two caves and the precedent that has been set is that the process set out in Sections 4 through to 9 of CRoW has run its course and the caves concerned are concluded to be specifically excluded from being considered as Access Land.
Summation of Opinion
So, what realistically can be achieved with respect to CRoW and caving?
Is there a right of access to cave passage under CRoW in its current configuration? Most definitely not. Cave passage cannot credibly be described or thought of as ‘Open Country’. Cave passage is not depicted on the Map in Conclusive Form and there is no provision made in CRoW to suggest or even hint at the concept of Access Land extending to subterranean passages.
Is there a right of access to a cave entrance situated within an area marked as Open Country on the Map in Conclusive Form? This is a harder question to answer. CRoW specifically sets out that it is an Act to make provision for public access to ‘the Countryside’. The definition of the Countryside is land not in towns, cities or industrial areas, that is used either for farming or left in its natural condition. Caves do not fall within the technical definition of Countryside, neither do they fall within the common understanding of the term that a ‘reasonable person’ would take. It follows therefore that the prime purpose of CRoW had nothing to do with providing public access to caves. However, CRoW has everything to do with providing public access to the Open Country upon which a cave entrance may be found. The possible snag is in the wording of Section 2 of CRoW: “Any person is entitled by virtue of this subsection to enter and remain on any access land for the purpose of open air recreation”. Whether caving is an ‘open air recreation’ is an argument that has been rehearsed exhaustively. The rationale for rehearsing the argument runs along the lines that if caving is an ‘open air recreation’ than CRoW provides access to cavers to go caving. If caving is not an ‘open air recreation’ then obviously CRoW does not provide access to cavers to go caving. My current view is that it matters not one jot whether caving is an ‘open air recreation’ or not! My view is based on the following reasoning:
Taking the example of a hypothetical cave on hypothetical access land, currently if your ‘purpose’ was photography, for example, CRoW entitles you to enter and remain on Access Land and to walk to and photograph the entrance of the cave in question as of right and protected by the statute law set out within CRoW. If your ‘purpose’ however was to enter the cave itself and take photographs, there then arises a question as to whether your ‘purpose’ is ‘open air recreation’ or recreation in a ‘closed in’ or ‘confined space’ that cannot reasonably be considered to be ‘open air’. Opinions are currently split on the issue as to whether caving is an ‘open air recreation’. Having considered the arguments either way and giving due regard to the QC’s opinion that a narrow interpretation of ‘open air recreation’ would exclude caving, I consider that it is most probable that a court would find caving not to be an ‘open air recreation’ and accordingly there would be no right for a person to enter and remain upon access land if that person’s intention was to go caving.
However, the person intending to go caving cannot by definition be partaking of that activity on access land because by definition caves do not form a part of access land. They do not appear in the map in conclusive form and therefore they cannot be considered to be access land and thus what you do in a cave is nothing to do with the rights prescribed under CRoW.
It follows therefore that when you break it down piece by piece, what the hypothetical caver is actually doing is crossing access land in order to go caving on ‘other land’. To use a simple analogy, it would be like walking across a mountain to visit a gymnasium or a pub. Whilst ‘entering and remaining’ on access land the person is engaged in open air recreation, namely walking over a mountain. Once he reaches the curtilage of the gymnasium or the pub he steps off ‘access land’ and onto private property which, under CRoW, he is not entitled to be upon. If we assume for a moment that the owner of the gymnasium or the landlord of the pub is happy to receive him then our hypothetical person continues to do non- ‘open air activities’ on the ‘other land’. The fact that he is engaging in non-‘open air activities’ on the other land is not an issue under CRoW. CRoW remains silent in my view as to what you can and can’t do once you depart the access land.
It is clearly the case that our hypothetical person was engaged in open air recreation as he walked across the access land, and in my view, irrespective of what he intended to do once he left access land, he entered and remained on the access land fully in accordance with CRoW.
Another way of looking at this is to ask the question, does CRoW set out to place limitations on the public once they have left access land? My reading of CRoW is that it does not. I can see nothing within CRoW which prevents access land from being used as a route of access to other land. Indeed, one could quite reasonably make the point that the term ‘access land’ is a term which strongly suggests use as a route of access. Setting aside a strict interpretation of the wording of CRoW, could it reasonably be inferred that access land was not to be used for a walk to the pub on the other side of the mountain? Such an interpretation is unlikely in my view and would affect vast numbers of the public. It follows therefore in my view that it matters not one bit whether caving is an ‘open air recreation’ or not when it comes to the issue of public access to access land for the purpose of reaching either a cave entrance or ‘other land’. A caver walking to a cave entrance is engaging in ‘open air recreation’ and thus his purpose whilst on access land is entirely in keeping with CRoW. It follows therefore that CRoW in its existing form provides access to cave entrances that are situated on access land, and whilst CRoW may not give a person the right to enter the cave, it is clear that it was not intended or specified under CRoW that access land could not be used to access ‘other land’.
Could CRoW realistically be modified or amended at some future date to provide a public right of access to cave passage? In my view this is unlikely. The first hurdle would be a willingness of government to amend CRoW to pander for what is in effect a very minority agenda. Cavers do not have a track record of being politically astute and motivated, and, without wishing to seem disingenuous, most caving politics takes place late in the evening and typically after the consumption of large quantities of alcohol. Could cavers ever present a united and coherent argument to support their position at a national level? I remain sceptical. Presenting the argument however is simply the first hurdle. Does any such argument have sufficient merit to warrant the editing of what currently is held out as a successful piece of legislation? Again, I would say not. What would be the purpose of amending CRoW to include a public right of access to cave passage? Generally speaking the mass populous is decidedly undesirous of the need. This really would be a modification to accommodate an extremely small number of people in an even smaller number of circumstances. If one considers the instances where a demonstrable benefit of such a right could be shown then it becomes obvious, in my opinion, that in the context of national policy we are talking about insignificant number of people who would benefit from a right to enter a very small number of caves. In making this assertion I am consciously excluding caves where access is currently freely available to all cavers upon request, such as Pant Mawr Pot.
To conclude therefore, the Map in Conclusive Form as defined and set out under CRoW is analogous to the Definitive Map as set out under the 1949 Act. Both maps show different things, but they share one thing in common: once all the appeals and representations are finished, they provide the Courts with definitive or conclusive evidence of public rights. The similarities between the process set out under the 1949 Act and the process set out under CRoW are similar by design in my view.
I have set out above that in my view CRoW does not provide access for cavers to go caving but that it does provide a right for a caver dressed in furry suit and oversuit and laden down with technical equipment to cross access land for the purpose of visiting a cave. In my view it is open to the landowner to choose what happens at the entrance of the cave. The landowner may take the view that he has no objection to cavers entering the cave and exploring the subterranean passages and there are numerous examples of such landowners. Conversely the landowner may lock the cave and keep it secure against the general public. In my view the landowner would be fully entitled to take such a stance as he would not be preventing access to any access land which appears on the map in conclusive from. My concerns in these current times is that speculation and over optimistic points of view have suggested to certain groups of cavers that landowners do not have a right to refuse access to caves located on access land. I am concerned that such views potentially place in jeopardy the hard work of others to secure well-grounded working agreements with landowners.