With the game shooting season about to begin, it’s a good opportunity to remind landlords, agricultural tenants and shooting tenants of the need to maintain effective dialogue and consultation to ensure that the rights of all parties are respected.
It is usual for landlords of agricultural holdings to retain the sporting rights over the let land and to either exercise the rights themselves or let them out to a third party, resulting in the situation where two parties have different rights over the same piece of land. The reality is that both the agricultural tenant and the holder of the sporting rights have an expectation that they can exercise their rights without undue interference from the other party but it is easy to see how conflict can occur.
Many tenants will have experienced increasing intensification of game rearing and shooting, with the result that there is increasing access to the holding for rearing, feeding, fox control (often at night) etc and increased vehicle and foot access during an increased number of shooting days. That can all lead to increasing disturbance of livestock, damage by vehicles and damage to crops by game birds. It’s also possible that a tenant can inadvertently adversely affect the success of the shoot by blocking access, carrying out farming operations in the middle of a drive or by moving livestock in a way that disturbs the drive or flushes birds in advance of the drive.
There is no simple definition of what constitutes reasonable or unreasonable behaviour by either party and each situation is different, so it’s imperative that the two parties have a good working relationship and each respects the rights of the other.
While many of the problematic situations arise in the case of pheasant and partridge shoots, I am also encountering increasing issues with respect to deer damage, particularly damage caused by red deer. Nightly incursions of significant numbers of red deer onto fields with improved grassland can result in damage to walls and fences and can reduce grass yield for silage or for the tenant’s stock.
A tenant has no right to shoot game unless the lease specifically provides that right but the tenant does have a right to deal with deer that are causing a problem. A farm tenant has a statutory right to take or kill, and to sell or otherwise dispose of deer found on arable and improved pastures if the tenant has reasonable grounds for believing that serious damage will be caused to crops, pastures or feedstuffs, and the tenant can exercise that right personally or authorise another person to do so.
If a tenant decides to take action against deer in a situation where there is a sporting tenant on the holding or on adjacent ground where the marauding deer are coming from, it is advisable to first contact the other party to see if an acceptable arrangement can be arrived at. If no such agreement can be obtained, the tenant may find that it is helpful to involve the local NatureScot Deer Officer, since that body has powers of intervention that may be helpful in resolving the impasse.
In 2018 I published a Code of Practice (The Management of Relationships Between Agricultural Tenants and the Holder of Sporting Rights) which has the support of the organisations representing landlords and tenants. The Code sets out the ways in which all parties should behave in order to maintain a good working relationship, with good and regular communication being the key to preventing and resolving difficulties.
The Code suggest that the agricultural tenant and sporting rights holder may find it helpful to construct a Memorandum of Understanding which sets out the practical steps that both parties will take to avoid situations that will lead to conflict.
In the event that a tenant wishes to make a claim for damage caused by game, the relevant legislation must be followed if the claim is to be successful, and this not straightforward. The main problem that arises is the difficulty involved in quantifying the damage and the resultant cost to the tenant. A pragmatic way to deal with this is for both parties to agree to appoint an independent and qualified valuer to make an assessment of the damage and to suggest an appropriate compensation figure.
