British Canoeing - Trespass Policy

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Mark Gawler
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British Canoeing - Trespass Policy

Post by Mark Gawler » Wed Jun 21, 2017 6:06 pm

From the BC Facebook page
We have recently received a few reports of paddlers being challenged regarding trespass on our rivers. Take a look at our Trespass Policy and 5 Key Points


Trespass Policy – 5 Key Points
Mark Gawler

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DaveBland
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Re: British Canoeing - Trespass Policy

Post by DaveBland » Wed Jun 21, 2017 10:10 pm

That's very nicely done. Good on you BC.

[That abomination of a logo still makes my blood boil every time i see it though.]
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Simon Westgarth
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Re: British Canoeing - Trespass Policy

Post by Simon Westgarth » Thu Jun 22, 2017 2:57 pm

A huge step forward is the attempt to collect centrally incident reports. I would like to see a summary of each incident, obviously with no personal data, but where, when, the cause of complaint and the nature of the incident.

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Re: British Canoeing - Trespass Policy

Post by tape34 » Tue Jul 11, 2017 12:55 am

Trespass policy - you've got to be kidding?
Why do we not have a 'right to paddle policy'

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Re: British Canoeing - Trespass Policy

Post by Adrian Cooper » Tue Jul 11, 2017 9:38 am


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Re: British Canoeing - Trespass Policy

Post by BC Waterways Env » Wed Jul 12, 2017 9:19 am

tape34 wrote:
Tue Jul 11, 2017 12:55 am
Trespass policy - you've got to be kidding?
Why do we not have a 'right to paddle policy'

Pete Ball
As Adrian has posted we do have a policy document online covering the legal position, accessible from the link Adrian posted above. This is in the process of being reviewed with a view to how we further strengthen the initial part regarding the background to the legal situation.

Just as a note - the trespass document is not a 'policy' as such - it is our advice to paddlers regarding their rights and responsibilities when challenged regarding trespass. It's intended to give some information about what constitutes trespass, where and when paddlers would be obligated to provide contact details, but, most importantly advice for how to help defuse situations on the rivers and the need to report incidents to us so we can help follow up on them.

Best wishes

chris.page@britishcanoeing.org.uk

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roo
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Re: British Canoeing - Trespass Policy

Post by roo » Wed Jul 12, 2017 11:13 am

BC Waterways Env wrote:
Wed Jul 12, 2017 9:19 am
tape34 wrote:
Tue Jul 11, 2017 12:55 am
Trespass policy - you've got to be kidding?
Why do we not have a 'right to paddle policy'

Pete Ball
As Adrian has posted we do have a policy document online covering the legal position, accessible from the link Adrian posted above. This is in the process of being reviewed with a view to how we further strengthen the initial part regarding the background to the legal situation.

Just as a note - the trespass document is not a 'policy' as such - it is our advice to paddlers regarding their rights and responsibilities when challenged regarding trespass. It's intended to give some information about what constitutes trespass, where and when paddlers would be obligated to provide contact details, but, most importantly advice for how to help defuse situations on the rivers and the need to report incidents to us so we can help follow up on them.

Best wishes

chris.page@britishcanoeing.org.uk
Hi Chris,

It's a great document - I think "the beef" here is that calling it the "Trespass Policy" is a negative outlook and implies that to kayak you need to trespass.

Perhaps a re-wording of the title - Title: Your Access Rights. Subtitle: What to do if challenged as trespassers. - would fit with the BC message of encouraging people to get out on the rivers and exercising their rights of access?

hf
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Re: British Canoeing - Trespass Policy

Post by BC Waterways Env » Wed Jul 12, 2017 12:31 pm

roo wrote:
Wed Jul 12, 2017 11:13 am

Hi Chris,

It's a great document - I think "the beef" here is that calling it the "Trespass Policy" is a negative outlook and implies that to kayak you need to trespass.

Perhaps a re-wording of the title - Title: Your Access Rights. Subtitle: What to do if challenged as trespassers. - would fit with the BC message of encouraging people to get out on the rivers and exercising their rights of access?

hf
Roo
Yes - sorry, the news article shouldn't be titled 'policy', I'll get that changed.

We've seen a recent increase in people being challenged, so the article and briefing note on trespass is to flag our advice. Especially regarding diffusing potentially hostile situations, and letting people know when and where they are required to give contact details etc. It's not to make any judgement on the rights and wrongs of the challenge - we see people get threatened with trespass even on rivers where the PRN isn't even in question. My one personal experience so far of being actively challenged on trespass was by an angler on the banks of the Trent around 100m upstream of Holme Pierrepont!

The recent article on our news pages has been one of most visited links over the past few weeks, and has seen people starting to use the online reporting for such incidents already. This is really important as it helps us be able to follow up the reports received and build a picture of where and why people are being challenged.

Chris

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Re: British Canoeing - Trespass Policy

Post by damppaddler » Thu Jul 13, 2017 12:26 pm

My one personal experience so far of being actively challenged on trespass...

How have you only had 1!!!

You will have to come paddling with me sometime if you want the number increasing

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Re: British Canoeing - Trespass Policy

Post by damppaddler » Thu Jul 13, 2017 7:15 pm

One thing I've always wanted to know is exactly which part of the trespass law do they think we are breaking?
As I understand it trespass against property is split into 3 parts:
1. sub surface ie digger under someone else's land
2. Surface ie touching someone else's land
3. Air space ie flying above someone's land

We aren't digging under the land, we aren't touching the land and we aren't flying above it in the air

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Re: British Canoeing - Trespass Policy

Post by DaveBland » Fri Jul 14, 2017 12:55 am

Oooh... if we are into trespass conundrums...

So the left and right banks are owned by different land owners. The divide is in the middle of the two banks.
So the land owner on the right bank lets people fish from his bank. The landowner on the left hates fishing and doesn't want anyone fishing "on his land".

Can the fisherman sitting on the right bank cast his line over the centre of the river and catch fish from in the water on that side assuming his equipment doesn't touch land or the river bed?

Or... variation. The fisherman on the right bank is not paying to fish and the one on the left bank wants to charge for fishing.
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Re: British Canoeing - Trespass Policy

Post by BC Waterways Env » Mon Jul 17, 2017 12:00 pm

DaveBland wrote:
Fri Jul 14, 2017 12:55 am
Oooh... if we are into trespass conundrums...

So the left and right banks are owned by different land owners. The divide is in the middle of the two banks.
So the land owner on the right bank lets people fish from his bank. The landowner on the left hates fishing and doesn't want anyone fishing "on his land".

Can the fisherman sitting on the right bank cast his line over the centre of the river and catch fish from in the water on that side assuming his equipment doesn't touch land or the river bed?

Or... variation. The fisherman on the right bank is not paying to fish and the one on the left bank wants to charge for fishing.
I have heard different accounts of this. One was that there is a 'convention' (always be doubtful when someone says a point of law is a convention!) that if you have the legal ability to fish one half of a river (as landowner, club member or day ticket member etc) then you can fish both sides of the river, even if you are only standing in/by the half you have rights to.

I've also heard the exact opposite - that you must in that situation make sure you keep all your angling activity within the half of the river you have the right to be in.

Chris

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Re: British Canoeing - Trespass Policy

Post by tape34 » Fri Jul 21, 2017 12:08 pm

BC Waterways Env wrote:
Wed Jul 12, 2017 9:19 am

As Adrian has posted we do have a policy document online covering the legal position, accessible from the link Adrian posted above. This is in the process of being reviewed with a view to how we further strengthen the initial part regarding the background to the legal situation.

chris.page@britishcanoeing.org.uk
My gripe is that although BC lay out the issues and arguments quite properly and quote The Rev Douglas Caffyn's work, I have yet to see anywhere that British Canoeing state as a policy that they believe there is an established Right of Public Navigation on natural non-tidal rivers.
With paddlers taking a strong position on many rivers why does BC faff about introducing everything on access by saying that it's unclear and complicated. BCU adopted a position of weakness when Canoe Wales showed the way forward some years ago and are still unable to take a lead on this issue.

Pete Ball

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Re: British Canoeing - Trespass Policy

Post by DaveBland » Fri Jul 21, 2017 2:51 pm

That would be my gripe too, but the world doesn't work that way these days.
It's easy as a governing body to say you can't do something but to be seen to be 'encouraging' something opens you up to all sorts of liability issues.
It's 'safer' for BC to just take a stance of "it's unclear" and let individuals take the risk.
Not ideal but unfortunately not a big surprise.
dave

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Re: British Canoeing - Trespass Policy

Post by tape34 » Fri Jul 21, 2017 8:02 pm

They could at least 'support the view' that there is a historical PRN on our rivers. People don't run campaigns by saying we can't do this. we can't do that ..... we're better off without that sort of help (in my view!)

Pete

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Re: British Canoeing - Trespass Policy

Post by Billy The Fisherman » Mon Aug 07, 2017 8:28 pm

DaveBland wrote:
Fri Jul 14, 2017 12:55 am
Can the fisherman sitting on the right bank cast his line over the centre of the river and catch fish from in the water on that side assuming his equipment doesn't touch land or the river bed?
Yes they can. Oddly though the can wade into the river but shouldn't cast back towards their own bank.
Once they reach the downstream boundary of the stretch of river they are fishing, they shouldn’t walk or wade beyond it but can cast a line over the boundary.

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Re: British Canoeing - Trespass Policy

Post by DaveBland » Tue Aug 08, 2017 6:48 pm

Billy The Fisherman wrote:
Mon Aug 07, 2017 8:28 pm
DaveBland wrote:
Fri Jul 14, 2017 12:55 am
Can the fisherman sitting on the right bank cast his line over the centre of the river and catch fish from in the water on that side assuming his equipment doesn't touch land or the river bed?
Yes they can. Oddly though the can wade into the river but shouldn't cast back towards their own bank.
Once they reach the downstream boundary of the stretch of river they are fishing, they shouldn’t walk or wade beyond it but can cast a line over the boundary.
Interesting. Wouldn't that then support the argument that touching the river bed is owned and regulated, but the water and fish flowing over it are boundary less?
dave

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Re: British Canoeing - Trespass Polic

Post by marcwel0 » Thu Aug 24, 2017 12:18 pm

Trespassing is not a criminal offence, if it was then any travellers pitching up on a village green could be arrested immediately. You'll notice this never happens, a court injunction has to be taken out which takes weeks by which time the travellers will be on their way, they know the deal so we ought to know it as well.

With regards to rivers, whilst the land below, i.e. the river bed, might be owned by someone, the water passing through is not, so you are not trespassing at all.

I have never had a problem but if I was approached by the "get orf my land" brigade I'd welcome the opportunity to politely point this out. The "land owner" might not like this but that's just tough. You have a right to paddle same as a right to roam as long as you are not damaging anything.

I agree with being polite and respectful (nature reserves for example). If they press the point and you politely decline to leave what can they do? You think the police will come flying round with a squad car? No.

A great line from Crocodile Dundee when asked what he thought about aborogines and whites arguing about who owned Australia he answered 'I think it's like two fleas arguing about which one of them owns the dog". That about sums it up for me.

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Re: British Canoeing - Trespass Polic

Post by Adrian Cooper » Thu Aug 24, 2017 3:41 pm

marcwel0 wrote:
Thu Aug 24, 2017 12:18 pm
With regards to rivers, whilst the land below, i.e. the river bed, might be owned by someone, the water passing through is not, so you are not trespassing at all.
This is not strictly a correct legal interpretation. Trespass is "unjustifiable interference with land which is in the immediate and exclusive possession of another". So in your example, the travel on water would be the same as occupying the airspace above a property (at a low height) which does constitute trespass. The argument for rivers is that there is a public right to navigation along a river and that trespass is not relevant.

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Re: British Canoeing - Trespass Policy

Post by Chris Bolton » Thu Aug 24, 2017 4:45 pm

marcwel0, I agree with the general sentiment of your post, but there's a couple of points of detail that might be useful.

The land under the water will definitely belong to somebody, and while there's a lot of evidence that there's a right of navigation, it's not accepted by all and the law is untested. If somebody believes you are trespassing, they can ask you to leave by the quickest route, and if you refuse to leave, they may believe they have the right to use reasonable force to make you leave. And if you were trespassing, they'd be right - but if you weren't trespassing, they would be assaulting you - it could all get nasty, physically and legally. Since the quickest route in nearly all cases is to continue down the river, the best course is not to refuse to leave, but to say "I don't believe I am trespassing, but I'm leaving anyway".

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Re: British Canoeing - Trespass Policy

Post by BC Waterways Env » Mon Sep 04, 2017 9:56 am

DaveBland wrote:
Fri Jul 14, 2017 12:55 am
Oooh... if we are into trespass conundrums...

So the left and right banks are owned by different land owners. The divide is in the middle of the two banks.
So the land owner on the right bank lets people fish from his bank. The landowner on the left hates fishing and doesn't want anyone fishing "on his land".

Can the fisherman sitting on the right bank cast his line over the centre of the river and catch fish from in the water on that side assuming his equipment doesn't touch land or the river bed?

Or... variation. The fisherman on the right bank is not paying to fish and the one on the left bank wants to charge for fishing.
Currently researching for a different issue, but came across the following:

"In the case of a river fishery, the further question arises of what happens when the opposite bank is in different ownership. Lovett -v- Fairclough is authority for the principle that there is no right to fish beyond the middle line where the opposite bank is in different ownership. To cast beyond the middle line is a trespass. In Scotland an opposite view was taken in the case of Fotheringham -v- Kerr, but Lovett -v- Fairclough is good law in England." http://www.anglinglaw.co.uk/wp-content/ ... 150319.pdf

Another question is what counts as the centre line of the river - the river between it's usually bank height - or the channel on the day - as these can vary greatly.

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Re: British Canoeing - Trespass Policy

Post by Keith Day » Sat Sep 09, 2017 3:04 pm

Another variation! An angler stands, casts and catches a fish on his/her side of the river but the fish, in it's attempts to free itself, swims to the opposite side. Has an offence been committed and if so was it by the angler or the fish?

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Re: British Canoeing - Trespass Policy

Post by BC Waterways Env » Mon Sep 11, 2017 9:50 am

Keith Day wrote:
Sat Sep 09, 2017 3:04 pm
Another variation! An angler stands, casts and catches a fish on his/her side of the river but the fish, in it's attempts to free itself, swims to the opposite side. Has an offence been committed and if so was it by the angler or the fish?
You would hope for a judge to show common sense in that case...

So the fish to be hung, drawn and quartered. And then served to the judge and landowner/s with a bit of dill and lemon, which the court should mandate the angler supply. Everybody's happy? (Except the fish, probably...)

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Re: British Canoeing - Trespass Policy

Post by Jim » Mon Sep 11, 2017 11:11 am

Why the sudden interest in angling?

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Re: British Canoeing - Trespass Policy

Post by BC Waterways Env » Mon Sep 11, 2017 2:56 pm

Jim wrote:
Mon Sep 11, 2017 11:11 am
Why the sudden interest in angling?
A question was posed earlier in the thread about whether anglers could cast across the half of a river they have fishing rights to, or whether that would be trespass. Legal advice to anglers appears to suggest this would be trespass.

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Re: British Canoeing - Trespass Policy

Post by Jim » Mon Sep 11, 2017 8:02 pm

BC Waterways Env wrote:
Mon Sep 11, 2017 2:56 pm
Jim wrote:
Mon Sep 11, 2017 11:11 am
Why the sudden interest in angling?
A question was posed earlier in the thread about whether anglers could cast across the half of a river they have fishing rights to, or whether that would be trespass. Legal advice to anglers appears to suggest this would be trespass.
I saw that, I just don't understand why so many paddlers with no real interest in angling have bothered to spend so much time discussing it.

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Re: British Canoeing - Trespass Policy

Post by DaveBland » Tue Sep 12, 2017 4:41 pm

Jim wrote:
Mon Sep 11, 2017 8:02 pm
BC Waterways Env wrote:
Mon Sep 11, 2017 2:56 pm
Jim wrote:
Mon Sep 11, 2017 11:11 am
Why the sudden interest in angling?
A question was posed earlier in the thread about whether anglers could cast across the half of a river they have fishing rights to, or whether that would be trespass. Legal advice to anglers appears to suggest this would be trespass.
I saw that, I just don't understand why so many paddlers with no real interest in angling have bothered to spend so much time discussing it.
Oh, that was me wasn't it? Good job I'm not a lawyer.
dave

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Re: British Canoeing - Trespass Policy

Post by bouncyboatbloke » Fri Sep 15, 2017 10:48 pm

Perhaps there's a leaf to be taken out of the Canal restoration society of the 1960's, who even at the threat of legal action determined that their cause was right and just, and therefore they had the moral right to carry on with their self appointed task of making derelict canals navigable again. The result of that was the springboard for a renaissance of canal use, with ever increasing miles of it being opened up every year.
Ditto the Rambliars, who kick started their campaign for the right to access the countryside with a mass trespass on Kinder Scout, [ although in truth most of those attending were from the local communist party who saw it as an opportunity to stick it to the local land owning gentry].
Any one fancy a mass paddle ? The upper Camel looks an interesting stretch of water, ho hum. Just watch out for the low flying lead.
Mike

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Re: British Canoeing - Trespass Policy

Post by Jim » Sat Sep 16, 2017 10:16 pm

You have done some research, let me offer you some more reading...
http://www.simondawson.com/phseiont.htm

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Re: British Canoeing - Trespass Policy

Post by bouncyboatbloke » Sun Sep 17, 2017 3:41 pm

Excellent, though I suspect the vested interest beneficiaries would perhaps not be persuaded, to share, the natural resource without a sustained reminder that not wanting to blatt the living daylights out of natures bounty is not the only way to enjoy it.
Mike

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