Barrier across the Dee

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davebrads
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Barrier across the Dee

Post by davebrads »

There has been a posting on the Waters of Wales Facebook discussion group regarding a letter from the Dee Valley Fishing Syndicate stating that they are going to build a barrier across the river Dee just downstream of the railway bridge, and threatening prosecution for trespass, aggrivated trespass (sic) and criminal damage. They seem to be quite serious about it, and there is a view that they will follow it through, though I can see some major practical issues, never mind legal and planning issues with the project. I can't post up the letter because it isn't mine to post, but maybe someone who has received a copy could?
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Re: Barrier across the Dee

Post by DaveBland »

Any barrier that'll stand the fluctuations in flow, including stonking flood, will inevitably be an entrapment hazard for debris and paddlers and surely never get passed for safety reasons?
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Re: Barrier across the Dee

Post by davebrads »

I really don't think that anything could be built across the Dee that would survive even an ordinary flood, never mind a stonking flood. It would collect debris and the pressure would be enormous, and if it didn't collapse it would turn into a dam and cause even more damage. I expect that the Welsh equivalent of the EA would soon step in to prevent it from being built.
it's not a playboat, it's a river runner

ian the badger
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Re: Barrier across the Dee

Post by ian the badger »

Probably a wind up.

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Crispin Agar
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Re: Barrier across the Dee

Post by Crispin Agar »

This is a copy of the letter that has been making the rounds on Facebook
https://drive.google.com/file/d/0B3Vd54 ... sp=sharing
- despite the awful spelling and dubious grasp of legalities, it appears to be genuine, as backed-up by the BBC news:
http://www.bbc.co.uk/news/uk-wales-nort ... s-36306201

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Adrian Cooper
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Re: Barrier across the Dee

Post by Adrian Cooper »

How odd, that looks like a conspiracy to construct a potentially life threatening obstruction in contravention of their duty under the Occupier's Liability Act. Now, they appear to have taken the trouble to warn some people but clearly they have not warned the whole of the public. The obstruction, occurring in free flowing water would constitute a hazard to any traveller since it would be difficult for them to stop in advance unless they had particular skills. I am sure there must be some H&S legislation appropriate to this. I would counsel them against such action lest they incur the wrath of the courts.

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Chalky723
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Re: Barrier across the Dee

Post by Chalky723 »

If only there was some sort of national body, paid for by participants that could step up and fight this - maybe even making a landmark ruling possible.....

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John K
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Re: Barrier across the Dee

Post by John K »

Photos just gone up on Facebook of these barriers being put in place

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Re: Barrier across the Dee

Post by Chalky723 »

What page? Do you have a link at all?

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Re: Barrier across the Dee

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Jim
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Re: Barrier across the Dee

Post by Jim »

Ignoring the clear disrespect for actual law relating to free flowing rivers, has the barrier design been approved by the EA, are the EA even aware of it - they need to be.

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mole
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Re: Barrier across the Dee

Post by mole »

Hmmm, seems Natural Resources Wales and the Police are aware and investigating.

lets see how this distills out shall we.

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ian the badger
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Re: Barrier across the Dee

Post by ian the badger »

Problem is when it get washed away it will end up in Town falls. Where is the late Maurice Rothwell when you need him?

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Re: Barrier across the Dee

Post by nrevek »

The Whitewaters hotel in Llangollen have this barrier attached to their land. Their website suggests that their guest might like to try whitewater rafting! To me they are encouraging their guests to participate in an activity they have made lethal!

Great business practice. http://www.whitewatershotel.co.uk/#gototodo

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Re: Barrier across the Dee

Post by jaq »

Health and safety professional here, I don't deal with trespassers and occupier's liability really in my work but I did have to study the law on the subject in depth, I'm sure a real lawyer would know more. This is my take on the legal situation.

There are two Occupiers' Liability Acts, both are law, 1957 and 1984. The 1984 one pertains to trespassers (which is what the fishermen believe we are, I'm not getting into the argument of if that's true or not).

The important part, I've not changed any wording but I've missed out some bits to make it easier to read, you can read it in full here http://www.legislation.gov.uk/ukpga/1984/3
Duty of occupier to persons other than his visitors.

(3) An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk.... if -
(a) he is aware of the danger or has reasonable grounds to believe it exists;
(b)he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not); and
(c)the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.
In case you're worried that this implies they owe a duty to us just for being on the river, the act explicitly excludes any liability for natural features of the landscape, including rivers.

However, it goes on to say that just because it's a natural feature or a gate or fence this...
...does not prevent the occupier from owing a duty... in respect of any risk where the danger concerned is due to anything done by the occupier -
(a)with the intention of creating that risk, or
(b)being reckless as to whether that risk is created.
They are trying to get around this by saying that it's your own risk, because of this bit
(6) No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).
Importantly there is the 'risk was so accepted'. We accept the risk when we go kayaking normally, the important part that means this isn't an accepted risk is to do with the "same principles... in which one person owes a duty of care to another", in this situation this is all in case law, but basically you owe a duty of care not to do something with the intention of hurting someone or 'that a reasonable person should have known' would cause harm to someone else. So they owe us a duty of care if they do something that would knowingly cause us harm, regardless of if we or they believe we've accepted the risk.

Additionally, you cannot absolve yourself of risk with a sign saying 'you do this at your own risk', that's not how it works - the Unfair Contract Terms Act 1977 explicitly prevents such a sign or warning excluding or restricting liability in the case of injury or death.

There is also case law of people being prosecuted for the injuries and deaths of trespassers that is relevant.

TL;DR - the occupiers owe river users a duty because they know we are there (whether they like it or not and even if our presence is illegal), they don't owe any kind of duty for danger of the features of the river but they do owe a duty not to intentionally or recklessly create additional risk. They can't argue we accept the risk because it was created intentionally or recklessly, and warning us we accept the risk has no legal validity in the first place.

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Re: Barrier across the Dee

Post by callwild »

When strands of wire were stretched accross the River Kent above kendal it was reported to the police a dangerous hazard and the local MP (Tim farrom )was also informed. They took it very seriously and the landowner was instructed to remove the hazard promptly.
Surely the police can not let this river obstruction remain.

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Re: Barrier across the Dee

Post by DaveBland »

I just don't get it. It's a deliberate attempt to cause injury or worse.
Plus, one fallen tree floating down will wipe it out in one go. What the hell are they thinking? Presumably it's cost a few quid? They must know it hasn't got a hope in hell of staying there?
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Re: Barrier across the Dee

Post by Wildswimmer Pete »

Should a swimmer be caught by such a barrier it's not just the risk of bodily harm, it's the very real possibility of drowning which could be construed as attempted murder.
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Re: Barrier across the Dee

Post by Chris Bolton »

Link to EA Wales flood risk permit rules
They are seriously out of order on that score as well as the other points in the thread

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Re: Barrier across the Dee

Post by stonercanoe »

In England and Wales no one owns the water in a river.
There is a House of Lords ruling about ownership of air space above your land. You can not own air space above your land. I think it talked about floating on water in the same judgment.
Floating on water in a river regardless of the right to navigate, you are not physically committing a trespass as you are not on any ones land.
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Re: Barrier across the Dee

Post by jaq »

stonercanoe wrote: There is a House of Lords ruling about ownership of air space above your land. You can not own air space above your land. I think it talked about floating on water in the same judgment.
Floating on water in a river regardless of the right to navigate, you are not physically committing a trespass as you are not on any ones land.
I can't find any such ruling but it'd be hard to without more information, I don't think it's true without a source but I'd be interested to read any cases that mention floating on water because I can't find any.

I'm getting way outside the area that I know about now and just googling so I could well be misinterpreting things, but what I have found is the opposite - in common law you have the rights to the air above your land in the lower stratum - you can't, for example, construct something above someone's property (Kelson v Imperial Tabacco, 1957), this doesn't seem to be clearly defined, but around 200m, apparently even overhanging trees from next door is trespass - beyond that there is a balance between the rights of the landowner to enjoy the land and the rights of the general public to use the airspace (Bernstein v Skyviews, 1978).

I don't fully understand riparian water rights, they seem to be mostly that you can fish it and take some water for specific purposes from the river, they have a right to receive the water 'without undue interference to quality or quantity', the right to protect their land from erosion or flooding (although complex projects or alterations require EA permission) they also have duties like not interfering with it in a way that would impact on the rights of those downstream, they also have a duty to maintain it, keep it free from obstruction and preserve the water quality (eg removing dead animals, remove trees blocking the flow, etc). I can't find anything that says people can or can't float on the water. I don't think it's ever been tested in court.

The fishermen always quote that riparian rights mean you can't kayak or canoe and I would invite one of them to point me to the specific cases that establish this. Riparian rights seem to be fairly irrelevant.

That being said there's also nothing to suggest that being on the river is any different to being on the land or being in the air, so it seems that it would fall under trespass. Trespass is not a criminal act unless the trespassers damage the land, use threatening or abusive behaviour, have more than 6 vehicles on the land or have intent to disrupt or obstruct a legal activity (this would be the aggravated trespass they are talking about). The key word in aggravated trespass is "intent". I've never met a paddler that intended it disrupt anglers, I've never seen one not give them respect and take a wide berth so as to explicitly not disrupt them. So long as we keep being polite, respective and give them as much room as we can it doesn't seem like they'd have any grounds for a criminal act of trespass or aggravated trespass.

There's also trespass in civil law, and they don't need to prove damages to bring a claim so this is something they could do. Although if any of them claim they will sue you for trespass for walking on their land to get around their dangerous barrier you can point out that necessity (to avoid a real or perceived danger) means that there is no trespass (source), but they can attempt to sue individuals for paddling on the river if they have lots of money to waste (some more info about the damages at the bottom of this page).

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Re: Barrier across the Dee

Post by Mark Gawler »

There are a few case which the Angling Trust have sited against Kayakers have been discussed here in the past Rawson v Peters Court of Appeal, 1972 is one.

For a biased view of the situation:
http://www.anglingtrust.net/core/core_p ... les&id=394
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Re: Barrier across the Dee

Post by morsey »

The Po Po will knock this on the head.
They is fools, is all.
Deluded poor fools*.
In the whole evil enemy game they score low.
Did you see the photos?
I shall stop you with this 'Twig'.
Pathetic, whimsical at best, impotent at worst.
The safety issue is all apparent, the creation redundant save for wishing ill harm.
Soon the masses will descend on Llangollen and the fools will toil in their riches.
Shame they don't have the influx of the Jones rally or the Dee tour any more, to many fools pushed that away.
I'm escalating this to a meh!


*(They really do seem like crazy fools, what arse about tat thinking populates an idea to block a river with a death pole?)

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Re: Barrier across the Dee

Post by jmmoxon »

The barrier was removed the same day.

http://www.canoewales.com/ws-blog/post/ ... -river-dee

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Re: Barrier across the Dee

Post by Adrian Cooper »

Back up now I hear half way across the river from the left bank

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Re: Barrier across the Dee

Post by Dave Manby »

On a sightly different point the farmer who rents the sloping field above the horseshoe falls has asked if we could stop sliding down in our boats as it affects his grazing for his cows (and his rent has just gone up). Be good if we can help out on this and pass the message on to others.

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Re: Barrier across the Dee

Post by Poke »

Adrian Cooper wrote:Back up now I hear half way across the river from the left bank
Think this is a separate thing... A fence on the Corwen to Horseshoe falls section rather than the barrier just above MEM.
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Re: Barrier across the Dee

Post by morsey »

Ignore them fools. Or at least ridicule the beejays house out of them.


Remember that dude, who thought he could stem back the tide. Even in summertime the Dee runs on Spring tides.


Here are some words you can cut and paste into conversation if required:

"You are just making that up!"

"I've seen Southpark and even Cartman has more authority, that I need to respect, than you!"

"You own the river, well done you, I'm holding out for a Mountain range myself"

"You built what? Across a river, for why? Are you a tributary short of a full catchment?"

"No shit Sherlock, it's a kayak all right"

"Don't get me, my buddies have got way more meat on them, they be following, eat them instead. Oh sorry, thought you were trolling, lols!"

"My dad actually is bigger than your dad"

"Yes, you go right ahead and call the Police. They'll assess the requirement to attend and then carry on doing some more pressing matters like real Crime!"

"Caught any fish today? No! Caught any rafts?"

"Fish are pretty smelly mind."

"Fish swims into a bar, it was a sand bar"

"Have you got a flag?"

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Re: Barrier across the Dee

Post by EmilyH »

I paddled the Dee yesterday and saw 'the barrier' (or at least part of it) laying on the river bed. How/why a land and business owner could do this in a beautiful river so close to their own property, I don't know.

This certainly undermines any environmental arguments they might try to use. Plastic boats probably aren't any more of an eyesore than an ugly plastic tube dumped in the river.

I wonder if someone should point out that fly tipping is illegal?!

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Big Henry
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Re: Barrier across the Dee

Post by Big Henry »

EmilyH wrote:I wonder if someone should point out that fly tipping is illegal?!
You?

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