Granting shooting rights – are you shooting from the hip?

The recent High Court decision of Clochfaen Estate Ltd v Bryn Blaen Wind Farm Ltd and Others [2019] EWHC 1562 considers some key issues that landowners need to be aware of when granting shooting rights over their land.

Rights to shoot, hunt and fish over land can be granted to third parties in a number of ways and are often incredibly valuable.  In this case, the claimant had the right to shoot and fish on and over some 4,000 acres of land, granted many years ago.

In August 2016, one of the defendant landowners submitted a planning application to build six wind turbines and to construct temporary compound roads over the land.  Permission was granted, and works were carried out between May 2017 and April 2018. The land in question was returned to agricultural use after the works were completed.

The claimant issued a claim for injunctive relief, a declaration of its legal rights and damages; on the basis that the development of the land had and would constitute substantial interference with its legal right to shoot over the land.

The court found in the claimant’s favour, even though it was common ground that it had not attempted to exercise its right over the land for over 60 years!  The expert witnesses to the case also suggested the shooting rights were of low value, given the location of the property and the quality of the shooting available.

However, it was unnecessary to show actual loss to succeed with the interference claim; the work between May 2017 and April 2018 was a substantial interference with the claimant’s rights over the land during this period and the works amounted to a fundamental change in the character of the land.  However, as the rights had not been exercised for decades and the interference with the rights was only temporary, the court only awarded nominal damages of £100 to the claimant.

This case serves as a reminder to landowners who grant such rights to consider whether the future intended use of their land could interfere with a third party’s right to use the land (be it sporting rights or otherwise), and to ensure that they document these arrangements carefully.

Sporting rights can (depending on how they are granted) amount to legal interests in land, binding future owners, and lasting for many years to come. In some circumstances, they can scupper a potential sale or fetter a property’s development potential.

These types of arrangements should therefore be carefully thought out and documented properly. For example, if redevelopment is planned (or may be a viable option in the future) the owner should consider reserving a break or termination option in its favour; or at the very least, the ability to interrupt the rights, or even relocate them to another suitable area.

A well thought out agreement and proper due diligence can help to avoid litigation such as this.

In this case, a temporary interference with third party rights only led to nominal damages, but a permanent interference with third party rights could result in the landowner being ordered to cease development and restore the land to its previous condition.

As farmers and landowners face more pressure to diversify the use of their land, it is always worthwhile checking whether any existing rights (be them old or new) could scupper such plans. Our Agriculture & Rural Business team is here to help, please get in touch.