The Law on Game and Agricultural Tenancies

AUG 30, 2012 ‹ back to news & views

Although not the most prominent aspect of agricultural tenancies to make the headlines of late, the law relating to game is nevertheless an area likely to affect many tenants across Scotland.  Moreover with recent legislation in the form of the Wildlife & Natural Environment (Scotland) Act 2011 (“WANE Act”), it is particularly important that tenants are aware of the current law in this area given the potential for criminal sanctions.  With its roots in the courts reaching back to the 1820s, the law relating to game and agricultural tenancies in Scotland comprises a matrix of common law and various strands of legislation including the Ground Game Act 1880, the Agriculture (Scotland) Act 1948, the Wildlife & Countryside Act 1981, the Agricultural Holdings (Scotland) Act 1991, the Deer (Scotland) Act 1996 and now the WANE Act.  This somewhat backwater of the law is fragmented with the legislation in some areas difficult to chart, however the following provides a non-exhaustive briefing on some of the key aspects.

The first principle of this area is that unless stated otherwise in a lease, a landowner’s exclusive sporting rights do not pass to the agricultural tenant (Wemyss v Gulland (1874) 10 D.204).  In reality this means that a tenant may well find a landlord or a landlord’s sporting tenant shooting, deer stalking or fishing across the holding and taking access over the ground for this purpose.  Where there is a written lease, it is common to find a clause reserving the sporting rights to the landlord or those duly authorised by the landlord (albeit in some cases the tenant may be granted some or all of the sporting rights).  The fact that a landlord is entitled to keep a reasonable amount of game on the holding is a burden a tenant may have to accept (Drysdale v Jamieson (1822) 11 S. 147). 

Relief is at hand, however, for a tenant suffering damage to their crops as a result of game in the form of a statutory right to claim compensation.  The right under section 52 of the Agricultural Holdings (Scotland) Act 1991 applies to damage by deer, pheasants, partridge, black game and grouse so long as the tenant does not have permission to control the species causing the damage.  The process is two-fold: firstly the tenant must serve written notice upon the landlord as soon as is practicable after the damage becomes apparent to the tenant, with the landlord being afforded a right to inspect the damaged crop in question.  When the crop is growing, the landlord must be permitted a chance to inspect the damage before the crop is “reaped, raised or consumed”.  When a crop has already been reaped or raised, the landlord must have an opportunity to inspect the crop before it is removed from the field in which the crop was growing.  One can imagine the practical difficulties of this requirement were the tenant to discover the damage at harvest time when time is of the essence to move the crop off the fields.

The second part of the process entails serving a further written notice to the landlord no later than one month after the calendar year (or such other 12 month period as the landlord and tenant may agree, such as the lease year) in which the damage took place.  The notice should include the particulars of the claim including the amount being claimed.  A tenant is only entitled to recover compensation for damage above and beyond 12 pence per hectare of the area damaged by the game.   In the absence of agreement, a tenant’s right of recourse is to the Scottish Land Court.

Notwithstanding any lease terms, a tenant may have a right to control deer under section 26 of the Deer (Scotland) Act 1996 on arable land, improved permanent pasture (other than moorland), enclosed woodland and land which has been regenerated so as to be able to make a significant contribution to the productivity of a holding which forms part of that agricultural land where the tenant has reasonable grounds for believing that serious damage will be caused to crops, pasture or human or animal foodstuffs on that agricultural land or woodland if the deer are not taken or killed.  It is important to note that sanction must be sought from Scottish Natural Heritage by the tenant if they wish to control deer via this provision during a close season. 

Tenants are afforded a right to kill rabbits and hares under the Ground Game (Scotland) Act 1880 to protect crops.  It should be noted however that it is now an offence under section 6 of the WANE Act intentionally or recklessly to kill, injure or take brown hares and mountain hares outside of their close seasons (being 1 March – 31 July, and 1 February – 30 September respectively), although an exemption may be permitted if the tenant kills a hare during the close season if it was necessary to prevent serious damage to crops, vegetables, livestock and foodstuffs for livestock, and the onus is on the tenant to notify Scottish Natural Heritage as soon as practicable.  Other creatures that are not game and which are not legally protected may be considered vermin, and the tenant is entitled under common law to deal with vermin as the tenant sees fit.   However, as of 1 April 2013, section 13 of the WANE Act will have fully introduced new provisions in relation to snaring, making it a requirement of those setting snares to have obtained an identification number from the police following appropriate training, to ensure that any snare set maintains a corresponding identification number, and to check every set snare at least every 24 hours.  As with breaches to the law in relation in to killing and taking hares and deer outwith the relevant close seasons without the necessary authorisation, failure to observe the new laws on snaring may result in an offence.

A final aspect that tenants should be aware of as a result of section 24 of the WANE Act is the new law on vicarious liability that may be extended to a tenant if an employee or agent intentionally or recklessly kills, injures or takes any wild bird, destroys the nest of a wild bird whilst it is being built, or takes or destroys the egg of any wild bird, all as per Wildlife & Countryside Act 1981 (as amended); or intentionally or recklessly disturbs a protected species or their dependent young; or kills or takes a wild bird by any of the methods prohibited under section 5 of the 1981 Act; or possesses any pesticide banned via section 15A of the 1981 Act.  Whereas the focus of consultation relating to this aspect of the WANE Act was undoubtedly the potential liability of landowners, where a tenant is managing land upon which the habitat of wild birds and/or protected species may be found, the provisions of vicarious liability may extend to the tenant. 

It should be noted that the above aspects are not exhaustive, however these points highlight some of the key provisions of the law relating to game as it affects agricultural tenancies.  A good working relationship between tenants and landlords – and indeed their gamekeepers and stalkers – is an invaluable ingredient in mitigating unnecessary tension between farming and sporting interests.