FEATURES LITIGATION

AHEAD OF THE

It can be easy to inadvertently fall foul of the rules when running a shoot, warns Paul Dunlop

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he game shooting season is almost over mercial interests, including sporting rights, for another year, and the question of over their land, both at present and in the who owns game birds is once again oc- future. Property lawyers must remember that Tcupying minds across rural parts of sporting rights will automatically pass to a As wild birds, game this country. tenant, unless the landlord reserves them in birds provide for There are also further legal issues the lease. some interesting regularly encountered by shoots and the It is not uncommon for sporting rights to legal anomalies as they neighbouring landowners. have been sold off separately to the land, The word ‘game’ is derived from the Old with the effect that they are held in different are ‘ownerless’, even English word gamen meaning ‘joy, amuse- ownership. This can cause issues between the though they have been ment, sport, merriment’. The Game Act 1831 landlord and the shoot, as they have differing reared by an owner defines what constitutes game and lists pheas- objectives and priorities about how the land before being placed in ants, partridges, grouse, heath or moor game should be used and maintained; and must be the wild and black game as ‘game birds’. highlighted to incoming purchasers of land The Wildlife and Countryside Act 1981 is where applicable. the primary legislation protecting animals, Additional complications can arise where plants and habitats in the UK. Under this the land has been let to one or more ten- Act, a wild bird is defined as any bird of a ant farmers – with the shooting rights being species resident in, or a visitor to, the owned by another party – because you then European territory of any member state have the interest of multiple parties compet- – in a wild state. ing for use of the land. Opposing interests However, game birds are not included in often leads to contract, tortious and or crimi- this definition (except to a limited extent) and nal disputes. are covered by the Game Act 1831 (as amend- Where possible, leases and licences must ed). Pheasants, for example, become wild clearly set out what other rights occupiers or birds the moment they are released into the users of the land have, to minimise the scope countryside and the Code of Good Shooting for disputes and uncertainty. Guide says this should be at least one month before they are shot. NUISANCE Private nuisance is usually caused when a per- OPEN SEASON son does something on their own land, which Game is protected during closed season (and they are lawfully entitled to do, but which be- on Sundays and Christmas Day), but can be comes a nuisance when the consequences of shot in open season as follows. their actions extend to their neighbour’s land. ●● (Moor Game): 12 August A significant number of pheasants migrate – 10 December from the shoot’s land to adjoining land and ●● (Black Game): 20 August highways each year. Because pheasants are – 10 December classed as wild birds, any damage caused by ●● Pheasant: 1 October – 1 February pheasants to crops, hedgerows or vehicles ●● Partridge: 1 September – 1 February is not the shoot’s responsibility. This means those affected have no legal recourse and so As wild birds, game birds provide for some they cannot recover any loss they have suf- interesting legal anomalies as they are ‘owner- fered by way of damages. less’, even though they have been reared by an But it is my experience that shoots gener- owner before being placed in the wild. ally do everything they can to limit such mi- Under common law, a landowner has the gration; and work with adjoining landowners right to hunt any wild animals and birds on while planning the position of pheasant pens. their land. In the case of Pole v Peak [1998] EG The sound from shooting can be held to be 125 (CS), the Court of Appeal discussed the a nuisance if it produces a loud noise within construction of an express sporting reservation. the proximity of neighbours, for a sufficient Landowners should consider all the com- duration and frequency. It is important for

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shoot contracts and licences to restrict the recover actual and or nominal damages. level of shooting accordingly on certain drives Note that spent shot falling on neighbour- where this might be an issue. This should also ing land, without permission, will be an act be reviewed. of trespass. If, for example, a neighbour started The claimant should be compensated for running a peace and wellbeing yoga retreat, the harm it has suffered as a result of the tres- or a creche on adjoining land, and found that pass. It will be entitled to be restored to the the noise from the shoot was a nuisance – position it would have been in had the tort they could bring a claim to stop the nuisance. not been committed (Livingstone v Rawyards It does not matter that the shoot has run for Coal Co (1880) 5 App Cas 25). However, it years or that it was there first. However, such is unlikely a claimant will be awarded sub- a claim would not necessarily succeed as the stantial damages, as there is not normally courts look at all the circumstances, such as any lasting effect to the land as a result abnormal sensitivity, the nature of the loca- of a trespass. tion, the time and duration of the interfer- That said, I was involved in a case where ence and the conduct of the parties. lead shot was falling onto neighbouring Where someone has shooting rights over land. It was claimed that the neighbour’s land which is farmed by another, the parties foul was digesting it, causing ill health and need to consider whether or not the farming premature death and the land had to be tenant and the sporting tenant have a direct decontaminated. A mutual settlement was contractual relationship. finally reached. If they don’t, then the landlord will have to The claimant has to demonstrate that it has account to the farming tenant for any damage suffered financial losses and/or possible fu- to crops caused by game, even though they ture losses to pursue a damages claim in tort. may or may not recoup these sums from the Fines can also be imposed under the Game sporting tenant. Where they do, the sporting Act. For trespassing that occurs on land dur- tenant may be liable. ing the day in the pursuit of game, the maxi- There is a statutory right of compensation mum fine is currently £1,000 (up to £2,500 for crop damage under section 20 of for groups of five or more guns). The claimant the Agricultural Holdings Act 1986, subject to is likely to pursue a fine where they cannot a number of conditions. The tenant must give demonstrate more significant damages in Landowners should written notice to the landlord of the tort. However, note that a prosecution under consider all the occurrence of the damage within one month the Game Act prevents you from bringing a commercial interests, of the tenant becoming aware of the dam- claim in tort. including sporting age; or within one month of when the tenant ought reasonably to have become aware of TEMPORARY INTERFERENCE rights, over their land, the damage. In Clochfaen Estate Ltd v Bryn Blaen Wind both at present and in The landlord must then be given a reason- Farm Ltd [2019] EWHC 1562 (Ch), the High the future able opportunity to inspect the damage. Court considered whether there had been an interference with the reasonable exercise of TRESPASS its sporting rights. The claimant, as lessee, If the gun (the shooter), the beaters (those was granted the sole and exclusive shooting who flush out the birds), the picker uppers rights over some 4,000 acres of land. The first (those who collect the shot birds) or their defendant (Bryn Blaen) constructed six wind dogs enter neighbouring property without turbines – with the access roads, temporary permission, whether committed in pursuit compound and associated works being con- of game or otherwise, this would amount to structed on part of the land. a trespass. The works took about a year, with most of If the bird lands on a public right of way the affected land being restored to agricul- or next to or on the authorised shoot land, tural use thereafter. Clochfaen claimed that the gun retains rights to it and can collect it. the temporary and permanent development However, if shot game lands dead on a private of the servient land has and will constitute highway, it would belong to the owner of substantial interference with its rights over it, that highway and collecting it would amount and sought a declaration, injunctions to trespass. and damages. Such a trespass means the landowner has The High Court held that it was not the right to bring a claim either under the necessary to show actual loss to succeed Game Act or under common law trespass to with a trespass claim. The works as a whole

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constituted a substantial interference with If the gun (the shooter) enters neighbour- the shooting rights. The nature of the works ing property, without permission, carrying a was industrial and had nothing to do with firearm it will be a criminal offence of armed agriculture. Accordingly, they amounted to a trespass. Where landowners employ game- If the gun (the shooter) fundamental change in the character of that keepers to run the shoot, they need to make enters neighbouring part of the land. sure they are sufficiently qualified – briefing property, without However, the trespass was of a temporary the guns before each shoot. permission, carrying nature and was an interference where a dec- Where landowners themselves are shooting laration and nominal damages were sufficient (or inviting friends for rough shooting), a firearm it will be a affirmation of the claimant’s rights. There they need to be clear where their land ends criminal offence of was no continuing interference and therefore so as not to accidently trespass with a armed trespass no further award of damages. The sport- gun because of the risk of committing ing rights had not been exercised for dec- armed trespass. ades over that part of the land; and as such Shooting is a historic sport but it is divisive. nominal damages of £100 were considered a Many see it as barbaric and are willing to sufficient remedy. protest against it. However, if an individual The case serves as a reminder to practition- trespasses with the intent of stopping a ers that when granting sporting rights over shoot, they could be prosecuted under sec- large areas of land, it may fetter the future tion 68 of the Criminal Justice and Public use of land and expose the landowner to Order Act 1994. future claims. Relevant to the success of such Even with our rolling countryside, it is claims is how quickly and effectively licensees highly likely a drive will be within close prox- restore the land and, to a degree, the quality imity of a public highway, presenting a further of the sporting rights and the frequency with risk of breaking the law. It is an offence under which they are used. For example, a tempo- the Highways Act 1980 (as amended) with- rary interference may theoretically expose a out lawful authority or reasonable excuse to landowner to a claim, but any damages would discharge any firearm within fifty feet (about likely be nominal. 15 metres) of the centre of a highway, where a Importantly, Clochfaen had not exercised user of the carriageway is injured, interrupted or attempted to exercise its rights over the or endangered as a result. servient land for more than 60 years. There It is good practice to include a clause in a were constraints on the servient land which shoot agreement or licence limiting where reduced its suitability to be used for sporting, the pegs can be situated and direction of the including the close proximity to the A470 and shot, where you have highways near drives. the existence of power cables, livestock and residential property. In addition, the servient BEST PRACTICE land provided poor quality shooting and the When transferring land, it is best practice rights were of low value. to check who owns the shooting rights, even Expert witnesses agreed that it was not sur- where previous conveyances are silent as to prising that the rights had not been exercised such rights as they may have been sold or over the servient land for so long because of gifted away. the poor-quality shooting offered as a result Where the seller has rights to shoot, make of the nature and location of the land. The sure no agreements are in place for someone servient land also provided little food and to run a commercial shoot and no others have little cover for birds. been given similar rights to shoot on the land. If your client is granting sporting rights to CRIMINAL OFFENCE a third party, this may fetter the future use of As well as civil claims, it is unsurprising that land. Make sure this is considered and that criminal regulations govern a sport that clients are advised accordingly. involves firearms. Section 3 of the Environ- No matter who is shooting, beating or mental Protection (Restriction on Use of picking up – the boundaries of the shoot land Lead Shot) (England) Regulations 1999 stops must be clear to stop any trespass. shooters from using lead shot over some Finally, where possible shoot licences water courses, in a place of special scientific should reiterate the common law duties and Paul Dunlop interest and in relation to certain foul, such allow the landowner to terminate the licence Paul Dunlop is principal and as ducks and geese. It is key for those with the if breaches occur. The landowner will not head of litigation and disputes sporting rights or running the shoots to know want a badly-run shoot affecting relationships at Blanchards Bailey whether any part of the land is protected. with neighbours. SJ blanchardsbailey.co.uk

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