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INTRODUCTION

  1. Shooting and fishing are becoming increasingly popular recreation activities.
  2. Income from them can provide a useful extra income for a rural land owner.
  3. Because suitable areas are often preserved or protected (as are the creatures in them), they can provide useful employment for conservation activities.
  4. But opening up new shoots or fisheries are not without their problems as this pamphlet seeks to illustrate.
  5. In late 2015 I prepared the first edition of this work. I drafted it for clients and their land agents/advisors active in sporting or proposing to start by offering sporting rights over their land.  However, in 2017 we had a reported case.  Little much changes in law as a result save that some of the problems which can occur were considered with some care.  That was Fuller v. Kitzing [2017] EWHC 810 Ch.  See para 3 below.

OWNERSHIP OF WILD THINGS

At common law:-

(i)            a wild animal, bird or fish is incapable of being owned.  They are “res nullious”.  They become capable of ownership once killed or captured and tamed.

(ii)           a land owner had the right to hunt wild creatures on his land unless that right had been taken away from the land ownership (see below).  Otherwise the right was “ratione soli”.

(iii)          of course, these common law rights have been modified by statute (see below).

(vi)         as was explained in Fuller v. Kitzing it is perfectly possible and often the case that what are basically wild animals can be bred but when either released or escape they return in law to their wild animal status.

FELLER v. KITZING 2017

This case concerned sporting rights over Winsley Hurst Hall, Harrogate. The legal background is one which is not likely to occur often but the problems arising can.    Mr. Fuller built a successful food business which enabled him to purchase the Hall and surrounding land which he wanted to renovate which included taking the surrounding parkland in to what he regarded as order.   Mrs. Kitzing a retired teacher whose family had years previous owned the estate was by succession the owner of the remainder of a 999 year Lease which had granted sporting rights over the estate, subject to a few restrictions in wording drafted in 1989.  She claimed Mr. Fuller’s work in the woodland had the effect of denuding the woodland leaving a “killing ground” where the game birds became easy prey for hawks etc.  It was alleged the mechanical leaf gatherers working in the grounds scared off the pheasants and away from the guns.   Mrs. Kitzing sued Mr. Fuller seeking a quia timet injunction.  One issued just to try and stop an anticipated harm.  The most famous of which in recent years involved the National Trust and which I have gained in the past but are not easy to obtain.  The main aim was to stop the taking away of cover within the woodland now owned by Mr. Fuller but subject to the rights.  He in turn felt that he was more than sick of the harassment he had been subject to.  Within the judgment we are reminded that once wellbores are raised and then released they revert back being wild and can be taken as “profits” (even therefore if Mr. Fuller raised his own pheasants and released them over the land subject to the shooting rights).   The owner of the rights is fully entitled to enter the estate to protect the birds from predators such as vermin that was simply “appropriate care”.   Although that did not extend to allowing the owner of the sporting rights to erect on the servient tenement artificial devices or pens to protect the sport.  Along the way the Court reminded us of a rule of law which is often better understood by surveyors and their land agents than young lawyers called “grant and re-grant”.   It is often thought that if a land owner sells off or leases off their land but keeps back some rights then the owner has saved a portion of what they once owned in full from the new owner or tenant.  However, the law works in an opposite way in many cases under grant and re-grant.   It is as if the owner conveyed or gifted everything to the new owner or tenant who then in turn granted back the rights which many of us thought would simply have been kept by the original owner from the transaction.

WHAT CAN BE SHOT?

  1. The common law position (2) (ii) above has been much modified by Parliament initially to protect the vested interests of land owners. More recently to conserve and protect species and/or the environment.  Most recently The Wildlife & Countryside Act 1981 is being amended to take effect from the 6 April 2016.   S.I. 2016/127 will allow a statutory defence in relation to bird’s eggs in the possession of a person before 28 September 1982.  It also amends the definition in Section 27 (1) by replacing Council Directive 79/409 EEC with Directive 2009/147 EC
  2. There are now detailed provisions as to what can be shot and where, with some local variations. There are details maintained on websites such as the British Association for Shooting and Conservation Limited but in summary:

Open Seasons in England are

Red Grouse 12 August – 10 December
Black Grouse 20 August – 10 December
Pheasant 1 October – 1 February
Partridge 1 September – 1 February
Wild Chicken 1 October – 1 March
Inland Duck and Goose 1 September – 31 January
Moor Hen 1 September – 31 January
Duck and Grouse below the high water mark 1 September – 20 February
Common Snipe 12 August – 31 January
Woodcock 1 October – 31 January
Golden Plover 1 September – 31 January
Jack Snipe Protected
Wildlife not above Protected in part by the Wildlife and Countryside Act 1981

 

  1. If a landowner/sporting rights owner wishes to authorise others to exercise rights he has to be very careful with the words used.
  2. This is because surprisingly there is no universal definition of the word “game”. The most common definition can be found in the Game Act 1831 (England and Wales) (as modified by the Protection of Birds Act 1954) and by Section 2 is:

“the word “game” shall for all purposes of this Act be deemed to include Hares, Pheasants, Partridges, Grouse, Heath or Moor Game, Black Game …”.

  1. Clearly this definition was directed at game shooting or as Willes J put it in Jeffryes v. Evans (1865) 19 C B N S in a case where there had been a reservation of the exclusive right of shooting, fishing and sporting on the farm “there is no reason why this should not be generally understood as including anything that is usually hunted for, shot for and sported after .. excluding small birds and vermin which are beneath the notice of a sportsman”. In that case he held the definition excluded rabbits.
  2. Vermin in this context is usually defined as: “such of the following species as may be legally shot or otherwise killed:
  • Wood pigeon, rabbits, foxes, stoats, weasels, mink, grey squirrels, crows, magpies and rats”.

 

  1. Where there is a dispute each case is fact specific. A judgement is made objectively on the meaning of the words (not what was subjectively meant by the parties at the time they entered into the agreement).  Illustrations include: Inglewood Investments v. Forestry Commission (1989) 1 AER 1 –

FACTS; Land was subject to a sporting rights clause in the following terms “all game, woodcocks, snipe and other wild foul, hares, rabbits and fish”.  There was on the land deer which in the past had been hunted.  The issue was whether the right included the right to kill deer.

HELD; No. Dillon L.J. said “had deer been in mind of the draftsman of the clause I have no doubt that it would have been mentioned. It is conspicuous by its absence”.

Pole v. Peake (1998) EGCS 125 (referred to in Fuller v. Kitzing)

(for further details see below).

It was held “game” was not limited to game “naturally occurring on the property”.   Accordingly it included reared birds brought on the land to be shot.

Prudence suggests the definition as to what can be shot or hunted for requires some care.

THE NATURE OF FREEHOLD LAND

At common law when a land owner owns land then (subject to reservations of mines or minerals and the rights of passage of aeroplanes in the sky), he owns not only the surface but the land underneath to the depths below and the sky above the land under the Latin term “cuius est solum eius est usque ad coelom et ad infernos” (whosoever the soil is it is there’s all the way to heaven and all the way to the depths below). The case is Bury v. Pope (1587) (see also) Lord Bernstien v. Skyviews (1978) QB 479, Star Energy v. Bocardo (2010) U K S C 35 and the statutory definitions in Section 205 (1) (iv) of the Law of Property Act.

Unless the contrary is expressed in the deeds if a land owner owns land bordered by a river or stream there is a presumption that he owns the “fundus” meaning the mud under the water of the stream or river out to the mid-stream point. If the land owner owns both sides of the stream/river and water is above the Medium High Water Mark, the presumption is that he owns the fundus beneath the stream/river itself.

So to if a land owner owns land in which there is a pond or a lake which encircles the pond or lake, the presumption is that he would own the lake itself at common law.

Clearly these presumptions are relevant in relation to the grant of sporting rights.

THE ORIGINS OF SPORTING RIGHTS

  1. Sporting rights can be traced back to the Norman Conquest and 1066.
  2. The original model was that the Conqueror took the land. He kept back for himself certain lands.  Rights to hunt over land he kept or later disposed of.    Also rights to hunt certain species either exclusively or in common with his subjects.
  3. But the Norman model was to absorb and mix up those they conquered. To keep the natives under control the Kings required their Lords either in their castles or manors to control the lands they were in turn granted.  This includes the right to hunt over the lands they were granted together with the right to hunt over other freeholders lands nearby (the origins of rights “ingross” (see below).   Where there were tenants the right to hunt over the tenant’s land.  All either exclusively or in common with others.
  4. Land (something of substance which can be touched or held) is called at common law a “corporeal hereditament”. Where there are rights over land owned by others (something which lacks substance) they might be rights of grazing or pasture or to fish or hunt that right is called at common law an “incorporeal hereditament”.
  5. Usually where there is a legal title which has the benefit over another legal title we call the title which has the benefit of the “dominant tenement”. The land which is subjected to the right we call the “servient tenement”.
  6. A right to hunt or fish over another’s land is (adopting the Norman French wording) is called a “profit a prendre”. This is an incorporeal hereditament put by one famous Judge “the liberties to hawk, hunt, fish and fowl granted to one, his heirs and assigns are interests or profit a predre”.  The case is Wickham v. Hawker (1840).
  7. The profit a prendre may be a profit which is “appurtenant”. This means that (similar to an easement) there is land (a dominant tenement) which has the benefit of the right and land (a servient tenement) subject to the right.
  8. However, unlike an easement a profit a prendre may be “in gross” which means the benefit of it is not attached to a particular piece of land. The owner of the profit may not own any land but he does have rights over someone else’s land.
  9. Sporting rights can be held exclusively or in common with others. They might be exclusive for a particular type of hunting or “game” but may not extend to say vermin such as pigeon’s and rabbits.
  10. But they are more than just rights. They are interests in land to Section (1) (ii) and (a) the Law of Property Act 1925.
  11. Over the centuries such rights could be acquired in six possible ways:

(a)          by statute.

(b)          by the express grant of a right by one land owner to another.

(c)           by implied grant (say under the doctrine of Wheeldon v. Burrows)

(d)          by prescription at common law

(e)          by a legal fiction called “lost modern grant” and

(f)           under the Prescription Act 1832.

  1. Today the only way such rights can be granted are by Deed (see the Law of Property Act 1925 Section 25 (1) and Section 205 (1) (iv)).
  2. And since the 13 October 2003 as a result of the Land Registration Acts 1925 and 2002:

(i)            a profit in gross created by express grant over unregistered land on or before the 13 October 2003, over registered land or arising by prescription need not be compulsory registered but

(ii)           a profit in gross created on or after the 13 October 2003 is registerable although

(iii)          such a profit must be a term of more than 7 years (see paragraph 6 Schedule 2 Land Registration Act 1925) [the procedures are explained in the Land Registry Practice Direction No. 19].

  1. In modern times sporting rights may now exist because:-

(a)          a land owner who owns the land and the sporting rights have them and they are “in hand”.

(b)          a predecessor in title sold or gifted off part of his land but reserved for himself the sporting rights over the land sold or disposed of (as happened in Jeffryes v. Evans (1865) 19 CBNS or

(c)           a land owner entitled to do so has:-

(i)            sold off;

(ii)           leased off or

(iii)          licensed off sporting rights (for the difference between a Lease and a License see my pamphlet “Property Licenses and Grazing Agreements”).

PLANNING

  1. The most ancient sporting rights will need no Planning Permission at all.
  2. But new shoots may need to consider preparing a shoot area and that may need Planning Permissions. For example, new roads (as opposed to improvement of current tracks) may constitute engineering works requiring planning.  Similar applies to car parking and the erection of buildings.
  3. With some 90% of land managed for wild fowling falling within Sites of Special Scientific Interest (“SSSI’s”) special care needs to be taken whether in preparation of a proposed Site or its use. Gelt Woods is an example.

FACTS   Mr. Day the owner of Edinburgh Woollen Mill purchased the Hayton Estate in Cumbria intending to make it “commercially viable”.  72 acres of the land was designated as an SSSI and protected by various Conservation Orders.   He sought to create/improve access by cutting down some trees and creating fresh tracks.  In so doing he used heavy machinery damaging the Site, its flora and fauna.  Mr. Day was prosecuted by Natural England.  He was fined £450,000 and ordered to pay £457,000 legal costs at the Carlisle Crown Court.

  1. A slightly different issue arose at the Farndale SSSI in Yorkshire in 2012. In that case the damage to the SSSI arose because of the sheer number of pheasants introduced into it to be shot for sport.  Natural England again prosecuted the field sports company and individually its Directors.  The offenses being ones of strict liability the operators were fined £40,000 and ordered to pay £12,000 costs.
  2. REGULATION
  3. Whatever the common law position might have been sporting rights are now heavily regulated. Most of the regulations created offenses of “strict liability”.  In other words, the Prosecutor need not prove a “guilty mind”.
  4. The initial legislation was intended to protect the vested rights of land owners against unauthorised hunters on his land, e.g. Game Act 1831 (England and Wales) [later amended a good deal by subsequent legislation, e.g. Protection of Birds Act 1954, Wildlife and Countryside Act 1981].
  5. However, we can see changes in emphasis towards public access and protection, e.g. Wild Creatures and Forest Laws Act 1971 and of course more recent planning laws.
  6. The Animal Welfare Act 2006 is often quoted in relation to the rearing of game birds for sport as is the Code of Practice for the Welfare of Game Birds Reared for Sporting Purposes.
  7. It is of course an offense to shoot within 25 feet of a highway if in consequence any user of the highway is caused harm, inconvenience or alarm.
  8. As mentioned above, certain species are protected absolutely. Some have no protection.  Others are protected during certain seasons.
  9. The use and storage of fire arms is, of course, also heavily regulated.
  10. Sites will fall within Health & Safety Legislation.
  11. This takes me back to Fuller v. Kitzing. Although it was not necessary for the judgment it seemed clear that the Court would have stepped in if the exercise of the shooting rights had been so close to the residential accommodation as to pose a threat or danger.  Something more likely to be a problem as our towns move in to what was previously countrysidee

DRAFTING OMISSIONS/PROBLEMS FROM THE CASES

  1. Where a sporting right is created by express grant, the legal fiction is of a grant and then a grant back, or as many land agents would understand “grant and re-grant”. As a matter of construction this invokes the “contra proferentem rule” interpretation against the draftsman.
  2. For what is termed “game” see above.
  3. Pole v. Peake [1998] EGCS 125 considered a number of issues but on the facts of that case it was decided that:

(i)            game was not limited to game “naturally occurring on the property”.  So reared birds were included.

(ii)           the right to shoot included the right to shoot and then take game once shot.

(iii)          the right to enter lands for the purpose of exercising the shooting rights did not include a limitation that notice should be given before that right was exercised or that the right should be limited to a right on foot.

(iv)         the right to “preserve” included protecting game from external threats and

(v)          “rearing” meant “to bring an animal to maturity or to a certain stage of development by providing nourishment or other assistance”.

  1. Cope v. Sharpe (1912) 1 KB 496 determined in the context of that case that the holder of sporting rights was entitled to take reasonable steps to preserve those rights.
  2. The extent of those rights granted was considered where there had been a grant of a reservation of the “the exclusive right of shooting, fishing and sporting on the farm”. Holding that this right excluded the right to shoot rabbits, Willes J said “there is no reason why this should not be generally understood as including anything that is usually hunted for, shot for and sported after .. excluding small birds and vermin which are beneath the notice of a sportsman ..”.
  3. I have mentioned above a sporting grant (short of a mere license) has to be by way of Deed. Frogley v. Earl of Lovelace (1859) held with what protection would there be when the Defendant tried to renege on an agreement to grant sporting rights on the basis that the grant was not under seal. In granting specific performance the Court felt that an agreement to grant a Lease was (under the doctrine of Walsh v. Lonsdale) as good as a Lease.  Similarly in Adams v. Clutterbuck (1883) 10 QBD 403 Clutterbuck took a year Lease from Adams in which he agreed that at the end of the Lease he would leave “a good stock of breeding grass on the ground”.  The Lease was not signed as a Deed.  Nevertheless, the Court felt that Clutterbuck should not be allowed to avoid his obligations and on the basis that an agreement to Lease was as good as a Lease itself provided relief.

DEROGATION FROM GRANT

  1. Modern land surveyors will be fully aware of the risks to a land owner caused by the concept of derogation from grant.
  2. In the context of a Sporting Lease, whether a landlord has derogated from his grant very much depends upon the facts of each case and the wording of the right. However, as some of the cases illustrate and Fuller v. Kitzing makes clear.   It is better for a draftsman to leave this issue beyond ambiguity.
  3. In Pattisson v. Guilford it was determined that an application for Planning Permission was not itself a derogation from the reservation of the sporting rights.
  4. In Farrer v. Nelson (1885) 15 QB 258 the Claimant was a farming tenant whose land was subject to the landlord’s predecessor’s reservation of shooting rights. The grievance was that the pheasants brought in were placed in coops on land very close to the Claimant’s farm causing damage to crops.
  5. In Peech v. Best (1931) KB the Defendant owned 700 acres of farm land. He granted C “the exclusive right of shooting and sporting in over and upon it” for a term of 14 years.  With 4 years unexpired he conveyed 12 acres on the farm for the erection of racing stables.  Holding that the building substantially interfered with or limited the shooting rights it was a derogation of grant in Scrutton LJ said “it appears to me that fundamentally changing the character of the land over which sporting rights are granted .. it has the necessary effect of substantially injuring the rights of others ..”.
  6. This question whether a derogation substantially interferes with the grant causing a “substantial interference” is the test the Courts will now apply, see Well Barn Shoot v. Shakelton (2002) 18 EG 151.

FISHING RIGHTS

At common law a stranger might acquire a right to catch fish in inland waters such as lakes, ponds or non-navigable rivers belonging to private owners. Often called a “common of piscary”.  This neatly divided into two forms:

  1. a “several fishery” or a “free fishery”. This was a right to take fish alieno solo meaning the right holder could exclude the owner of the water from his right to fish see Foster v. Wright (1878) LR 4 (ii) a “common fishery” meaning that a person could fish in common with others so entitled.
  2. Such rights could be acquired in the six methods by which other sporting rights could be acquired (see above)

In modern times we need to make a distinction between:

(a)         tidal water fishing rights.  Here members of the public have qualified rights to fish in the sea and waters below the mean high water mark of tidal rivers from where there is public access (subject to any restrictions which may now be imposed by the Marine Management Organisation) or local Fisheries and Conservation Authorities and

(b)         non-tidal waters.   Sporting rights to fish in non-tidal waters are complex.  These are often called “riparian rights” and beyond the scope of this pamphlet.

  1. Riparian rights are now subject to certain qualifications, principally the Salmon and Fresh Water Fisheries Act 1975. There are, of course, very clear controls now on what can be fished for and at what times with what equipment.   There are also closed seasons and a system of licensing for any angler over 12 who seeks to fish for trout, salmon, course fish or eels.

MODERN DRAFTING

  1. Most sporting rights will now be granted under a Lease or by way of a mere License. However, there is nothing to prevent a reservation of sporting rights by way of Deed or the sale of a profit a prendre by Deed.
  2. Before grant it would make sense to examine the title deeds to ensure that such grant is possible, otherwise there would be a breach of warranty.
  3. It should then be considered who should be the landlord. Should this be an individual, a farming partnership, a trust or a Special Purpose Vehicle (limited company) set up by the landlord specifically to hive off the sporting activities.  The decision may be influenced by tax and/or risk.
  4. In relation to the proposed tenant, an issue might be whether it should be a named individual or a sporting club. If the latter, who is to be responsible for the tenant’s obligations.
  5. Leases tend now to be for shorter terms. Obviously a term needs to be considered.  If over 7 years this raises potential stamp duty land tax issues and land registration.
  6. It would be common to set out now a break right. Whether that can be exercised by the tenant or the landlord and if so on what terms.  Selection of a Break Date clearly is important by reference to the closed season.
  7. From a landlord’s perspective the whole point of the exercise is rent. This raises issues of how the rent should be calculated and if there is a new venture whether the rent should be stepped up.  Whether there should be a levy on the number of guns or licenses allowed.  Whether the rent should be subject to review and if so when and whether the rent should be market value and/or increased by reference to the Retail Price Index.
  8. Much land which is sported over will be subject to designation such as SSSI, SAC and/or with Tree Preservation Orders (“TPO’s”). There needs to be a determination as to who should be responsible for compliance with this regulation and if it is the tenant thought should be given to indemnities for the landlord.
  9. If access is required through tracks, consideration needs to be made for the maintenance, restoration, construction and planning issues.
  10. Some buildings such as keeper’s houses for larger shoots need to be considered. The issue is whether a tenant is entitled to the use of the buildings, whether the use should be exclusive or non-exclusive.  If exclusive and domestic whether there should be put in place an Assured Shorthold Tenancy.   If commercial whether the property should be subject to the Landlord & Tenant Act 1954 and an exclusion.
  11. At the end of the term there needs to be some thought as to what equipment is to be removed and by whom or in default whether the landlord can exercise “self-help” and charge the tenant.
  12. Thought needs to be given for insurance. Shoots can be dangerous places in terms of public liability etc.
  13. Shoots can cause damage and the issue might be what compensation either for the land owner or his neighbours might be obtained in contract for damage to crops, banks, walls etc.
  14. We have seen above that there is no universal definition of game. A prudent landlord would specify exactly can be shot and what cannot be shot either in common with or exclusive to the landlord and/or others.
  15. Vermin need to be kept under control. Controlling vermin can also be a useful activity.  Some thought has to be made as to whether the tenant has the right to shoot or trap vermin.  If not, whether the landlord is to have that right.  It would be common for a tenant to be obliged to keep down ground game and control vermin in order to prevent injury or damage to the land or the landlord.
  16. As shoots are strictly controlled it would equally be sensible for there to be a clause requiring a tenant only to exercise sporting rights by legal methods, e.g. “during the proper seasons and not to use any guns other than single or double-barrelled shotguns not exceeding twelve bore in calibre”.
  17. The number of people exercising those rights should properly be controlled, as should the issue of how many beaters are allowed in a day and how his may affect grazing on the landlord’s other land. Typically thought might be given to a clause “not to allow more than ten persons to shoot on each shooting day” and whether the right will conflict with other farming agreements on the land, such as cattle grazing agreements or the need to restore woodland.
  18. It is sensible to define shoot days, what is to happen to shot, i.e. how are we going to get rid of plastic/fibre and steel if the site is SSSI protected and with licensees roaming shoot land how to control the risk of disease. Who must notify whom if a disease is traced and who should pay compensation for losses?
  19. A landlord would be well to consider Cramaso LLP v. Viscount Reidhavens Trustees (2014) UKSC 9. This was a Supreme case involving a Scottish Grouse Moor where the central point was whether there was a misrepresentation as to the amount of sport on the moor.  In this case the tenant sued for misrepresentation on the basis that there had been a misrepresentation when the tenant discovered there were inadequate numbers of grouse on the grouse moor.  This in turn led to loss because the tenant had intended to license to commercial customers the right to shoot over the moor.

David Hassall

Hassall Law Limited

Suite 1 Duke Street Chambers

Bridge Street

Kingsbridge

Devon   TQ7 1HX

Tel: 01548 854878 or 07775851271

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