River East Lyn - Watersmeet to the Sea

[Mark R]

Cheers Mike.

If you read point 23 and also points 27-32, you see that they are effectively powerless to do anything other than moan/complain - unless they can prove that navigating rivers causes environmental damage.

[Mark R]

Note also, the section headed 'consistency'.

[jmmoxon]

I agree Natural England are unlikely to do much to individuals, but upsetting them would be a bad move as they could block access legislation.

Mike

[morsey]

I agree Natural England are unlikely to do much to individuals, but upsetting them would be a bad move as they could block access legislation.

Which access legislation would that be then? It is not even on the books for governmental consideration for England is it?


Pete can you clarify some points please?

Did they send you the findings of the environmental survey? Can these be made public?

The last paragraph of that letter from NT seems to contrast your interpretation, they are saying that canoeing will be allowed in the winter and only on the East Lyn from Watersmeet but is not allowed on the Hoaroak water nor from Brendon (NT had the option to include this section but chose not to, the national representative for NT had the option to force that ruling and chose not to). The result is such that it appears to be a restrictive arrangement, so does it follow that it will not receive BCU/CE approval?

Pete when you walked out of the meeting with the Brendon landowners/residents it was pretty clear there was no way forward for discussion on the upper section, has anything actually changed since that meeting to suggest there is likely to be an extension or is it still just wishful thinking!?!





I'll put my cards fully on the table on this one:
On the face of that letter, NT should be informed by BCU/CE that they will not endorse any arrangement. It is time for BCU/CE to write a line under trying to negotiate access on this river.

[jmmoxon]

Which access legislation would that be then?

If the Welsh Assembly approve access to rivers then it would have to come before the government - Natural England could then block it.

Mike

[morsey]

Natural England would be able to block application to Welsh law revision?

[jmmoxon]

Well, the Countryside Council for Wales could...no, I mean if Welsh Assembly pass it then government will have to consider whether to implement it in England

Mike

[Mark R]

I'll put my cards fully on the table on this one:
On the face of that letter, NT should be informed by BCU/CE that they will not endorse any arrangement. It is time for BCU/CE to write a line under trying to negotiate access on this river.

Gets my vote.

I'm rather disturbed at the implication that we seem to be accepting without query, assertions and assumptions by Natural England and the National Trust* that they have the legal power to regulate navigation of rivers. They don't: it's clearcut and beyond dispute.

I fully understand that we need to work with them, and preferably amiably, BUT we must start from the legal basis of them understanding clearly what they actually can and cannot do, as opposed to what they'd like to believe is the case.

*And in the case of the West Dart, the National Parks.

[pete thorn]

If you read my earlier posts you will see that BCU/Canoe England have not endorsed the NT 'arrangement', as it does not meet the 365 day criteria. I have simply informed people of the situation. There is no signed agreement. NT have stated their position on canoe access. They are willing to encourage the die-hards upstream to relax and accept paddling. We clearly disagree on the interpretation of legal history, but we try to rub along. As you may have noted, persistent pressure has resulted in major tree clearance from the whole river which is largely tree free. Antagonise NT and EA and we lose a lot of good will and cooperation.

The NE verdict is important. I think they probably assess angling as much more intrusive environmentally. If canoeing is 'OK' on the East Lyn, then it is OK anywhere, with the Lyn having SAC and SSSI status. So we don't need to worry too much about NE's legal powers. It's helpful to know what they are, and aren't though.

I have asked for a copy of the NE's assessment and will post it when it arrives.

By the way, 16 people in four groups paddled from Brendon on Saturday (nice level) and all communications with walkers/locals were friendly.

[jadedkayaker]

Gets my vote.

I'm rather disturbed at the implication that we seem to be accepting without query, assertions and assumptions by Natural England and the National Trust* that they have the legal power to regulate navigation of rivers. They don't: it's clearcut and beyond dispute.

*And in the case of the West Dart, the National Parks.

It's not just the West Dart, Mark, it's all of the Dart and the Exmoor rivers and no doubt elsewhere in the country. I have written to both DNPA and ENPA asking them to revise their advice and policy for canoeing where it refers to river ownership, trespass and navigation. Both refused. I then wrote to DEFRA via my MP (whose role appears to be limited to forwarding correspondence) and after several attempts eventually received an admission from the Minister Huw Irranca Davies MP that rivers are not in fact privately owned (hallelujah!). However, the Minister went on to make unsubstantiated assertions about navigation (that I hadn't asked about) and also refused to instruct the National Parks to revise their policies and guidance.

Next stop the Ombudsman I think.

Andy

[Chris W]

The NT is a Riparian Owner on the East Lyn, isn't it?

Andy 'JadedKayaker', I see you're still firing off letters to various organisations. As a matter of inteest, what background reading have you done concerning the law on non tidal waterways? Have you actually read the Rev Caffyn's 90+ page MA paper?

The legal position on Riparian Ownership and rights of control over navigation is NOT 'clearcut and beyond dispute'.

Chris.

[Mark R]

The legal position on Riparian Ownership and rights of control over navigation are NOT 'clearcut and beyond dispute'.

No, but the lack of jurisdiction of Natural England, the National Trust and the Dartmoor National Park over river navigation certainly is.

[morsey]

I have written to both DNPA and ENPA... DEFRA... MP

Have you, by any chance, written to the 24th duke of Cornwall?

[Chris W]

Except where the NT is a Riparian Owner, Mark.

Chris.

[jmmoxon]

Because the East Lyn is a Special Area of Conservation and SSI, Natural England apparently have powers to control activity within it. An assessment can be requested by interested parties (e.g. people opposed to canoeing) for new activity, and in this case existing activity. Strange that this assessment only focused on canoeing, ignoring swimming, dogs, angling, walkers, etc.

Not that strange, as other activities have always been going on, whilst summer paddling agreement would be a new arrangement:

Domestic and European conservation legislation requires an assessment of the implications for wildlife of any proposal (such as the introduction of a right of access) at designated site level.

Mike

[jadedkayaker]

Have you, by any chance, written to the 24th duke of Cornwall?

No, but then he doesn't own the rivers either, despite what the National Parks and their informants, the BCU, seem to think.
My purpose in challenging the wording of both the policies and public information of the Parks is to chip away at the traditional deference to landowning minorities, whose wish to restrict and control canoeing, and other outdoor activities, is lent credence by such official, if mistaken, endorsement. If that makes any sense.

Have you actually read the Rev Caffyn's 90+ page MA paper?

Yes - well, the highlights anyway. But I wasn't asking about navigation rights -- that was the Minister's interpretation. I was just objecting to the use and dissemination by the NP's of information that is at best disputed and probably plain wrong (rivers being "private" and paddling being therefore "trespass")

[pete thorn]

Mike wrote:
'Not that strange, as other activities have always been going on, whilst summer paddling agreement would be a new arrangement'

In fact the NT withdrew its offer of summer canoeing, (see my earlier post), and applied for the assessment based on closed season only. NE had said they ought to assess canoeing, although it has been going on for 20+ years on the Lyn, as the issue had been raised. But they did not include any other activities to be assessed. If their verdict had been negative we could have insisted they also assess all other activities. As noted, they would have had to produce evidence of environmental damage from canoeing, which no-one has yet been able to find or prove.

[Chris W]

Hello again Andy 'jadedkayaker'. So you've just read the 2 page precis then? I guessed as much. It's a free World, you can lobby whoever you like. However, all the key players have access to legal advice and the EA is not going to base its policy and advice on a student's MA thesis that has not been tested in the courts. Or what you have to say.

Why do think that rivers cannot be owned or private? Please explain your reasoning.

Your first obstacle is Riparian Ownership, which Douglas Caffyn does not seek to challenge, after noting that it is an established Common Law principle dating back to Henry VI. With ownership, again through Common Law, comes the right to control activity within a 3D space, for obvious practical reasons. The river water, whilst not owned by the Riparian Owner, will pass through that space. Your next obstacle is a House of Lords decision in 1991, which included a judgement that prescriptive rights of way (acquired after 20 years of unchallenged access) under the Rights of Way Act 1932 and later Highways Acts do NOT apply to rights of navigation along waterways. Your next obstacle is the need to prove an established Common Law right of navigation through long establised use by the public prior to 1830, as per the Rev Caffyn's thesis.

The East Lyn has, I would guess, been physically navigable by small craft and navigated by the public for around 25 years (I first paddled it about 22 years ago). The NT is a Riparian Owner.

Feel free to draw your own conclusions.

Chris.

[jadedkayaker]

all the key players have access to legal advice and the EA is not going to base its policy and advice on a student's MA thesis that has not been tested in the courts. Or what you have to say

....except the Minister at first attempted to use completely irrelevant caselaw (relating to crown ownership of tidal waters and to fishing rights) and then when that wasn't going to work he gave up offering any evidence for his assertions, probably because it doesn't exist. Maybe the better lawyers had a day off.

Why do think that rivers cannot be owned or private? Please explain your reasoning.

... the Minister has already accepted this point, he just refuses to tell the National Parks. Rivers are not owned unless they are impounded, apparently (again he gave no evidence, but I preferred his answer on this issue). Maybe it's not a major point, but I think it is part of a wider picture that can be chipped away.

I'm not really interested in establishing rights of navigation (except via the "Scottish model") as the present disputes over the law can only really be tested in Court - and that clearly isn't going to happen. I didn't ask DEFRA about rights - Mr Davies offered his unsubstantiated views as a freebie. As a taxpayer I just object to public bodies using doubtful or erroneous information that contributes or lends weight to discrimination.
Anyway, is this duplicating a similar discussion about national parks over on the Inland pages?

[Chris W]

Andy, hello again. Some questions for you:

1. What background reading have you done on the law relating to non tidal waterways? (apart from the 2 page summary of Douglas Caffyn's paper).
2. Once again, why do you think rivers cannot be owned or private? Please explain your reasoning.
3. Did you read the 3rd paragraph of my last post and do you disagree with anything I have said? If so, why?

Chris.

[jadedkayaker]

Hello again, Chris.
I'm wondering why you are so negative? I'm only trying to do something constructive, instead of getting bitter and twisted about the injustice of it all.

1. What background reading have you done on the law relating to non tidal waterways? (apart from the 2 page summary of Douglas Caffyn's paper).

Only what has been relevant over 20 odd years of paddling. It's not something I would want to while away the evenings with.

2. Once again, why do you think rivers cannot be owned or private? Please explain your reasoning.

Why do you think they can be? You are taking the classic paddlers position, conditioned by deference to the landowning minority. I was simply asking for evidence to support this assumption - as I have never been provided any over the said 20 odd years - and the answer that came back from the Minister, who as you point out, probably has some reasonably competent lawyers (despite their earlier attempt at wool-pulling) was that rivers are not privately owned until impounded. That's enough for me. Just need the NP's to amend their guidance.

3. Did you read the 3rd paragraph of my last post and do you disagree with anything I have said? If so, why?

Bit like an O-level question this (oops - giving away my age there). Yes of course I read it. I disagree with your negativity and your apparent readiness to accept what we've been fed over the years, but I wouldn't hold that against you. Why? Well, probably because I have had enough of being told what I can't do whilst all along having a suspicion that the persons doing the telling have no right to do so. Also, as I said, I'm not really interested in so-called navigation rights - again we're conditioned to accept an unfavourable position, when in fact the law is far from clear and is not about to be clariified - being bothered about this or pursuing it is a waste of time and energy.
There we are then - I'm not claiming any expertise, I'm only asking questions. Being consciously naive puts the boot on the other foot - rather than take the submissive stance I am asking those we think are in power to justify their position. If they can't it can safely be ignored - and so far Mr Davies MP has provided no credible evidence at all.
Andy

[Chris W]

Hello again, Andy.

Negative? Bitter and twisted? Me? I don't think so. No, I'm just telling it as it is, having read up on the subject and worked as a Chartered Surveyor since the 80's, advising on property issues. You don't have to listen to me or do any research on the subject if you don't want to. Best of luck with the lobbying.

Chris.

[jadedkayaker]

Cheers, Chris

Bitter and twisted? Me?

I was referring to myself - I would rather take some kind of action, even if it proves to be ultimately futile, than fester on it. Apologies if clumsily worded.
I do think your posts were negative and was going to ask what constructive action you might suggest. I guess if you have been that involved on the legal side you probably can't see a positive side. However, it seems to me worthwhile coming at it from a position of relative ignorance and asking for evidence from those making the"rules" - in this case getting the Minister to admit that rivers are not privately owned and failing to corroborate his views on navigation rights.
If I can get the National Parks to follow the position stated by Mr Davies re ownership and to amend their guidance on navigation rights (to at least acknowledge the uncertainty) I will take that as a success. So thanks, I will continue lobbying and, if anything comes of it, I will post up more appropriately in the relevant thread.

Andy

[storm]

Fantastic level today guys no navigation issues.
Steve

[Chris W]

Storm, thanks for the update. I'd rather be talking about water levels and trees too.

Andy, no worries. I'd be surprised if the EA's advice was changed to state that the legal position was uncertain or unclear, however it would do no harm to state that kayaking/ canoeing NGBs claim that the legal position on rights of navigation is unclear and are lobbying for legislation to provide clarity. Ideally they would refer to the Douglas Caffyn's research and include a link to the 2 page precis that was submitted to the WA committee. Best of luck to you.

Chris.

[pete thorn]

Please note!!!!!

Hi Peter,

Please can you post something on the UKRGB and pass the word around that we have had a single 4 tonne rock fall and hit the A39 just above Lynrock, the A39 and footpath along the river are now closed due to the dangerous condition of the remainder of the column. The rock that fell split in two and one piece is now wedged behind a tree just down river from Lyn Rock bridge. Over the next two days our rock work specialists will be dismantling the remainder of the column and removing the trapped rock. It is very likely that large rocks will make it down to the river as a result of this work, or beforehand if the column collapses before we have a chance to dismantle it. We have posted a notice at Watersmeet this afternoon but could you also advise canoeists that access the river away from any agreed access points too please.

Please can you let me know as soon as you can that this has been done?

Julian

The National Trust
Area Warden
Exmoor West Wardens Office
Hunter's Lodge
Parracombe
Barnstaple
N Devon
EX31 4PY
e-mail - julian.gurney@nationaltrust.org.uk
Telephone / fax 01598 763306

[pete thorn]

Work on rocks now completed so no concerns about avalanches. See note from Julian (Nat Trust):

The work will be finished today, Friday, so please do let your contacts know they are welcome to canoe from Watersmeet down again as of this weekend. I'm sorry the gauge board for the web cam is taking so long. I didn't want to pre-empt Natural England's permission and then, once given, it hasn't stopped raining. I will get it in as soon as river levels drop and then the web cam can go live.

Julian

[pete thorn]

The Watersmeet webcam is now live and can be viewed at http://www.access-technology.net/watersmeet/
Some real thanks are due to Julian and Steve at National Trust for pushing this through, and to the EA for funding it. The minimum level they agree to has been fixed through consultation and local paddlers confirm that when it's on red it's not worth paddling. Today it was just on the green/red boundary on the gauge. A run was possible but would have been an unsatisfying bump and scrape. Now we just need to add water.

[Mark R]

A camera - great, thanks!

What exactly are we looking at? Where is this?

What would be really helpful to make sense of this, would be a photo of the river at the red/green intersection level - say in town, or perhaps the final drop in the gorge? And maybe pics corresponding to other levels on the gauge?

Cheers,

[Rinseout]

Mark as far as I understand if you can see red on the guage u cant paddle if its just green then good to paddle

George