In the agricultural world, it is not unusual for landowners to let their land whilst retaining the sporting rights.
The landowner may then exercise the rights themselves, or lease the sporting rights to a third party. With up to three parties being involved, the potential for dispute is increased. The Tenant Farming Commissioner (“TFC”) has now issued a new Sporting Rights Code of Practice with the aim of minimising conflict between landlords, tenants and the holders of sporting rights.
The philosophy underpinning the Code of Practice is that good communication and cooperation between the parties involved is crucial. The TFC believes that this is the key to a ‘harmonious relationship’ and all parties should be willing to work together to establish and maintain an effective working relationship.
The Code of Practice makes a number of particular recommendations, including the following:
- Landlords should ensure their employees are aware of the Code of Practice.
- Tenant farmers should know who is exercising the sporting rights and should be given contact details of who they should approach to discuss any issues.
- The holder of sporting rights should discuss their proposals for access in advance of exercising their rights to minimise conflict. Tenant farmers should not unreasonably object to any proposals.
- Tenant farmers should be notified of planned shoot dates and locations as soon as they are known. They should also be notified of any changes. This applies to any other potentially affected parties, such as subtenants.
- Any new sporting leases should include a clause requiring the parties to adhere to the new Code of Practice.
- The parties may wish to agree and enter into a separate Memorandum of Understanding which outlines full details of how the sporting rights will be exercised.
- If a farming tenant believes significant damage is being caused to crop or livestock by birds or animals, they should discuss this with the sporting rights’ holder to resolve the matter.
- A farming tenant has a right, under the Ground Game Act 1880, to take action against rabbits and hares. The sporting rights’ holder should be prepared to give such assistance as can reasonably be provided on the request of the tenant farmer.
- If, despite following the Code of Practice, damage continues to be caused by a species which the tenant farmer has no control over, the tenant may be eligible for compensation. In such circumstances:
- The tenant farmer should serve a written notice on the landlord as soon as the damage is identified and give the landlord a reasonable opportunity to investigate the damage.
- A claim of this type can only be made if the damage exceeds 12p per hectare and has been caused by deer, pheasants, partridges, grouse or black game.
- The claim for damages should be made within 6 months of the initial written notice.
If any party involved feels another party has acted in a way that breaches the Code of Practice, they can make a complaint directly to the TFC. However, the Code of Practice recommends discussions between the parties in the first instance to resolve the breach, or entering into mediation before resorting to the TFC’s complaints process or, as a last option, litigation.
The Sporting Rights Code of Conduct can be found here - http://landcommission.gov.scot/tenant-farming/codes-of-practice/.
As noted in previous alerts, landowners and shooting tenants should also ensure that they are aware of the potential for vicarious liability for offences committed by their employees or others authorised by them under the Wildlife and Natural Environment (Scotland) Act 2011.
Lesley Mearns is a solicitor in our specialist Land & Rural Business team. If you have any question about farm and land tenancy agreements, or for more information, contact Lesley on 01334 659735 or alternatively contact a member of the Land and Rural Business Team.
