Countryside Pursuits – Legal Implications
Sporting and rural pursuits continue to be popular, despite the banning of particular hunting practices in recent years. This makes it vitally important that both landowners and users of land know their rights and obligations in relation to the exercise of sporting rights.
Rights to use the land
Users of land for sporting purposes must have authority to enter the land for sporting purposes from the person who holds the sporting rights over that land. It is a criminal offence to trespass onto land belonging to other people for shooting purposes unless prior permission has been obtained from the landowner. Sportsmen should also bear in mind that they should not shoot into land over which they do not have permission to enter; shot entering private land, albeit accidentally, is deemed to be generally equivalent to trespassing.
Sporting rights can be owned independently from the land; on the creation of the current freehold land system, it was commonplace for the Lord of the Manor to retain sporting and fishing rights as well as the right to mines and minerals under the land.
Such rights may still be held today by successors in title of the former Lord of the Manor, and be exercised by them. Alternatively, sporting rights can be leased or rented to interested parties for a season, a period of years or lesser periods such as a day.
Sporting rights held independently from the land can be registered at the Land Registry to protect the interests of the holder and ensure that parties looking to purchase the land to which the rights are attached are fully aware of the rights which burden the land.
In order to be registrable, the rights must have been obtained by the individual by way of an express grant via deed or have been obtained through long use. The latter category is more difficult to satisfy, in that the person claiming the rights must establish that they have exercised the claimed rights for a minimum of 20 years, without the permission of the owner of the land and have done so without secrecy or forced entry. However, such rights cannot be registered if others exercise similar rights.
Sporting rights can only be registered against land if the burdened land (i.e. the affected land) is registered at the Land Registry. Increasing amounts of land are now registered at the Land Registry. It is estimated that approximately 70% of the land in Cumbria is now registered at the Land Registry; voluntary first registration is available for those areas which are not registered; it is the Land Registry’s target to have the majority of land registered by 2012. If the land is not registered, the holder of the rights can enter a Caution against First Registration, so that they are informed when the owner of the land seeks to register the property, to make sure their interests can be noted on the registers.
Loss of sporting rights
A manorial right is a term referring to the rights historically held by the Lord of the Manor and includes the right to mines and minerals and the rights of shooting, fishing, hunting and fowling. Manorial rights are categorised as overriding interests, so a landowner takes subject to them even if they are not mentioned on their registered title of the property. However, under the Land Registration Act 2002, manorial rights are to lose their overriding status after 12 October 2013. Therefore an owner of sporting rights must have them noted on the registers of the burdened land by that date in order to bind future purchasers of the land, or protected by way of a caution against first registration in the case of unregistered owners. Otherwise, the rights may be lost.
There has been a surge of legislation introduced in the last 10 years or so, directed towards the protection of wildlife and enhancement of the countryside.
The controversial Hunting Act 2004 radically changed the face of hunting, making hare coursing, and the hunting of all wild animals with dogs illegal, except in limited circumstances. Stalking and flushing out wild animals for the protection of animals or crops (with no more than 2 dogs), and ratting and rabbiting are permitted under certain conditions, with the permission of the landowner, or the person who owns the sporting rights over the land. However, hare coursing is no longer permitted and anyone taking part or a landowner permitting his land to be used for such purposes will be committing an offence punishable by a fine. Anyone found guilty of an offence under the Act faces a fine of up to £5,000, and could have their dogs, vehicles or guns or other equipment used in hunting seized.
The somewhat ancient Game Act of 1831 is still in force in relation to game bird hunting. That Act created a close season in which it is illegal to shoot game birds, in order to protect the birds during the breeding season and try to ensure that their population remains constant. The hunting of game birds is allowed during the open periods, which is particularly noticeable on country roads with the number of pheasants trying to commit suicide from the 1st of October each year!
The Game Act was brought up to date on 1 August 2007 by regulations which removed the requirement for sportsmen to obtain game licences before going shooting and providing for venison and game to be sold all year round, provided that the animals were killed in the open season.
Health and safety
The thorny issue of public liability, and how this might affect those organising hunts, point to point or shoots etc is covered in detail in an article on Health & Safety written by Burnetts’ Head of Personal Injury, Nick Gutteridge.
Diane Barnes is a solicitor in the firm’s agriculture team. To find out more about the legal implications of countryside pursuits like fishing or shooting, contact Diane on 01228 552222.
About the author
Senior Associate Diane specialises in agricultural land and property sales.
Published: Friday 23rd March 2012