Sporting rights’ unsporting effect

Have you reviewed your sporting rights policy recently? You should, says Jonathan Thompson of Lincoln’s Inn-based Hunters Solicitors.

Sporting rights are often a farmer’s passion and commercially important, and often only a line in the heads of terms for a farm sale or tenancy.
Did you know that shooting injects an estimated £2.5 million into the UK economy and further amounts by fishing and hunting? Sporting rights are key to the rural economy, but what are they?
Property law is based on land ownership and rights relating to land. This includes a profit-à-prendre, being a right to enter land and take something from it.
A farmer can sell or lease this right for others to remove game from land. Land and sporting rights are like two pieces of velcro; they are stuck together but can be separated. When selling or letting land, unless specifically reserved, the rights go with the land.

What game can be removed? It depends on what you want to be removed. There is no one legal definition. The most common definition is contained within the Game Act 1831, but other acts have different definitions. When granting rights, be precise about what game can be sought.

Sporting rights can be a further stream of farm income. They can be sold (unusual!), let or licenced. A user will prefer the security of a lease, in order to invest money into game management. A farmer should consider all business and tax affairs before letting anything.

There should be synergy and no conflict between the landowner and agricultural, commercial, residential and sporting tenants. There will be additional points to consider together, such as cover crop type and location, for example.

The terms of a sporting lease and/or licence must consider a raft of issues. These include access, siting of pens, who pays for game damage, where guns may stand (not in a tenant’s garden!) and where blanking in may be done.
A licence for deer stalking must also further consider safe use and ownership of firearms.

A recent case highlighted that a farming business can be adversely affected by the actions (both criminal and civil) of their employees or third parties, where such individuals breach the cross compliance rules. That will still be the case under whatever new UK Agriculture policy emerges. In this case, a gamekeeper was prosecuted under the Wildlife and Countryside Act 1981 for killing 10 buzzards and a sparrow hawk.

The business concerned was initially penalised 75 per cent of its then Single Farm Payment. This was quite rightly and successfully overturned and no penalty was applied. The argument was that the farmer employer could not be liable for the criminal folly of the gamekeeper. Had the case concerned a less serious issue, it may not have been possible to show that the keeper’s actions were not part of the farmer employer’s instructions.

Such cases show that there can be conflict between sporting rights and commercial interests. If sporting rights halt or inhibit a separate property development, a landowner can face a court action.

The pursuit of game can provide income and enjoyment, but needs pursuit of detailed thought.

This article was originally published in The Farmers Club Journal Autumn 2018 Issue and can be accessed here.