Is this true

[wymberley]

Wymberley

 

Further to your question above regarding the quote on post #20 and in general on this often debated matter, I am of the oppinion, as I often state, that permission to shoot on land from the occupier does not make that person (the one with permission) the occupier under the terms of the act.

 

The act is quite specific and the Wildlife and Countryside Act in its definition of the word occupier uses the word "right".

 

Right is a legal term and the holder of a right has, in law, the entitlement to do with that right as he pleases whereas someone with permission to shoot has been granted the "privilege" of shooting on the land. In law there is a distinct difference between a right and a privilege.

 

I am therefore, minded to believe that BASC are skating on thin ice by stating that someone who has permission to shoot qualifies as the occupier.

 

As a farmer, I certainly do not consider someone whom I have given permission to shoot as the occupier of my land.

 

Charlie,

 

We are in total agreement. If BASC did actually mean to say that (there's many a...), then as you described is putting it mildly and I'd go as far as to say that they should very discretely get it amended

[mcw65]

I agree with Charlie on this,just because if i give someone permission to shoot on any of our land it does not make them a occupier and if they take someone who has no certificate i have to be with them.

[wymberley]

I agree with Charlie on this,just because if i give someone permission to shoot on any of our land it does not make them a occupier and if they take someone who has no certificate i have to be with them.

 

As as has already been said you could perhaps, just perhaps, argue that the definition of 'occupier' is open to debate. I just don't happen to think so.

 

We've heard what two landowners think about it and I'm absolutely amazed that no one has actually considered the wider picture. Let's say the permission =occupiers crowd win the day and that becomes the definitive in law. Now, the vast majority of us rely on the farmers' permission to shoot over their land and for obvious reasons they are happy to grant that permission. It's even got to the stage where some call the land they shoot over a 'permission'.

 

However, now that permission, previously willingly granted, has been granted occupier status. Consequently, are the landowners now going to grant that permission at all, never mind willingly. I'm pretty sure of the answer but would welcome comments from our two landowners. I would guess that existing permission holders who do the job that they were given permission to do would slowly but surely find themselves with more and more acreage based on the recommendation of their existing farmer and the supply of land available to other shooters would similarly dry up.

 

As is sometimes said here, " be careful what you wish for".

[CharlieT]

Were a funny lot us farmers.

I, like most, am protective of my land and tend to get irate when people take the "mick" and assume they can do as they wish. Perhaps I'm soft but I am only to pleased to give Mrs Whoever down the road permission to walk her dog over my fields. Likewise a couple of local mountain bike enthusiasts have permission to ride over the farm as have locals with horses. One chap has permission to shoot but not on Sunday.

 

Back along, a chap I had given shooting permission to took it into his head to remonstrate with Mrs Whoever one morning, telling her she was spoiling his shooting, that he had the shooting rights and that she was trespassing and should be on her way. It didn't take me long to tell him the only rights he had was to be on his way.

 

No one has any rights on my land, people may have my permission or authority, call it what you will, to do something on my land but they most definitely do not have any rights. If they start to think or act as if they do they are soon on their bike.

 

If someone with permission was to be classed legally as the occupier, than I for one would no longer be granting permission.

[Dekers]

The term occupier does not mean someone is going to move in and shack up with your misses!

 

Look it up yourself!...the Independent contractor is worth note.....

 

 

 

Who is an occupier?

Neither Occupiers' Liability Act defines "occupier". The definition must be sought in case law. The currently applicable test for the status of "occupier" is the degree of occupational control. The more control one has over certain premises, the more likely he is to be considered "occupier" for the purposes of the two Occupiers' Liability Acts. More than one person at the same time can have the status of occupier.

 

Tenants and licensees

Both tenants and licensees will be occupiers of property where they live. Licensees will usually share the status of occupier with the ownerccupier" for the purposes of the two Occupiers' Liability Acts. More than one person at the same time can have the status of occupier.

 

Owners

Owners of let property will be occupiers of those areas which they have not let by demise and over which they have retained control (such as the common staircase in flat building). If the tenancy agreement imposes upon the owner the duty to carry out repairs, he will be co-responsible with the tenant for the conditions of the premises as occupier.

 

Independent contractors

 

Independent contractors working on the property may also be covered by the concept of "occupier" if they exercise sufficient control over the premises

Edited August 28, 2012 by Dekers

[wymberley]

Now, you've gone and done it!

 

Not only are farmers funny folk, they're canny too. Consequently, we permission holders WILL be occupiers once the farmers realise that we're then liable to assist with the work/cost of rehanging gates, resurfacing the tracks and repairing the barns.

[al4x]

Ok the full BASC link is here, Occupier as a term isn't put there to get on landowners backs but more as a general term, at the moment people are basically saying they want an extra barrier to new entrants to the sport and no one should be supervised with a shotgun unless in very limited situations. The home office guidance is more sensible and suggests if you have permission to shoot on the land then you can supervise someone with one of your guns. Thats no different to borrowing one from a farmer, I have the opposite the farmer has been known to borrow mine under my supervision, but then with my agreement I'm happy I meet the occupier definition set down.

 

http://www.basc.org.uk/download.cfm/docid/CD411880-8D54-42F7-988CB24C93AC5132

 

It has nothing to do with paying for maintenance etc I do pay for some shooting as we have a game syndicate but the vermin control is done almost as part of keepering duties. Most landowners welcome people to bring their offspring and introduce them to shooting and I've been on many game shoots where guns have been lent and not always by the "owner"

 

Unlike Charlies experience I am quite happy pointing out where footpaths are on the land and when we have people driving across crops on motorbikes and quads there is no problem with me intervening as I'm another set of eyes about at times when it is quiet and the ****** are about.

[bakerboy]

Just to throw a pebble in the pond.

 

On one of my permissions the Farmer (occupier) does not have a SGC, who can allow a shooter without a SGC to shoot on this permission?

 

In the eyes of my local FAO it is me.

[wymberley]

Just to throw a pebble in the pond.

 

On one of my permissions the Farmer (occupier) does not have a SGC, who can allow a shooter without a SGC to shoot on this permission?

 

In the eyes of my local FAO it is me.

 

Before this all gets out of hand, I really do think that our emphasis should be on not rocking the boat so we can continue introducing newcomers to our sport. Also, with regard to maintenance, there seems to be a great deal of difference between a sense of humour in Devon and Hitchen, but come to think of it, I suppose having to live in Herts ........

 

The point that I'm trying to make is particularly well illustrated by the above. "Who can allow a shooter without a SGC to shoot on his permission?" "In the eyes of my local FAO it is me."

 

Wrong. It is the farmer; all the presence of the certificate holder is doing is possibly making it legal. Anything else is an abuse of the privilege that you've been given. Now, as it happens, I don't think that that is what bakerboy meant, but it accurately reflects what may happen if through ignorance or whatever, people are encouraged to overstep the mark because of a belief that they're somehow entitled to more than they've been given.

[al4x]

You're talking rubbish wymberley and confusing the legal aspect here with who has permission to shoot. The more sensible here are assuming permission to be there is granted and as with terry in my case it would be in full agreement of the landowner.

So assuming you have the right to be there and to take a newcomer it is legal if you fit in with the home office definition of occupier for this purpose.

[Robl]

_{I had a similar (but different) discussion with a magistrate a while back about law.}

 

_{British law and American law are quite different, but due to TV most people know more about American law.}

_{American law is generally concerned with the wording and the precision of the law, we often hear about people getting off on technicalities and so forth.}

 

_{British law is general concerned with the intent of the law.}

_{There are two latin phrases which are often quoted, which translate roughly to.}

_{Justice should be done.}

_{The law does not concern itself with trifles (meaning small matters, not jelly based dessert).}

 

_{If you read the law as written and try and find meaning, then it seems to me that it’s saying.}

_{A person with a SGC and legal authority to go shooting on that land can take another person with them so long as they look after them.}

 

_{The law is there to give the courts some teeth if they need to prosecute someone.}

_{It’s not there to try and catch out some otherwise law abiding people who want to take a friend shooting with them.}

 

_{To my mind the debate over the exact meaning of ‘occupier’ is a trifle in the case.}

_{The intent is clear.}

_{I would guess they used occupier to give some leeway for those who aren’t land owners.}

_{Something like a club occupying a farmer’s field.}

 

_{But it’s got a bit confused with other definitions of the term occupier in different contexts.}

 

That said, if you are planning to take a mate along it’s probably polite and legally sensible to check with the land owner that they are happy with that.

(for the sake of clarity, when I say land owner, I mean whoever is legally allowed to give permission for someone to shoot – I guess some farmers are tenants not owners)

 

 

_{I’m not a lawyer.}

_{I’m not giving legal advice.}

_{It’s just my personal opinion on it as part of a discussion.}

Edited August 28, 2012 by Robl

[CharlieT]

Right, lets get this straight.

 

Wymberley and I were, for fun, discussing the semantics of the term occupier in relation the act and the presumption by some, incorrectly in my view, that because Farmer Bloggs has given permission to shoot on his land that person automatically becomes an occupier.

 

This discussion had nothing to do with people shooting without permission or bringing their mates without permission and most certainly had nothing to do with not wishing non certificate holders to have a go with a shotgun. I for one go out of my way to encourage new shots and I'm sure Wymberley does.

 

Personally, I don't give a hoot if the chap who shoots my land lets a new shot have a go with his gun, in fact I encourage it. When I take a youngster out shooting on next doors land I believe that I am actually not within the law because I am not the occupier, I'm only there because Fred, the owner permits me to have a wander round. Do I give a fig that I'm technically breaking the law, no. Do I think that I would ever be prosecuted, no but that does not alter that which Wymberley and I were debating.

[David BASC]

The term occupier is not defined within the Firearms Act, but is widely defined as a person who has some degree of control associated with and arising from that person’s presence in and use of or activity on the premises. See Wheatv.E Lacon and Co Ltd (1966).

 

This was summed up by Lord Denning as ‘an occupier is the one who has immediate supervision and control and the power of permitting or prohibiting the entry of other persons’

 

In an attempt to help define this though in the context of borrowing shotguns for example, the Firearms Consultative Committee in their 5th Annual report recommended that the provisions of section 27 of the Wildlife and Countryside Act 1981 be adopted. This states that ‘“occupier” in relation to any land, other than the foreshore, includes any person having any right of hunting, shooting, fishing or taking game or fish’. The FCC suggested that the Ch Constables use this definition.

 

However, its always worth a quick call to your licensing team to ask them to double check with the operational police on their definition.

 

David

[CharlieT]

Just for fun................

 

Which leads us, David, nicely back to where we started, debating the difference between "right" and "permission".

[wymberley]

Just for fun................

 

Which leads us, David, nicely back to where we started, debating the difference between "right" and "permission".

 

Not to mention the fact that I simply can't see what shooting rights and the use of the term 'occupier, in this context, have got to do with a bit of a ****-up about a brewery. Anyone would think they were on about the Black Cat!

[David BASC]

The case referred to points clearly to the fact that a piece of land can have more than one occupier and each occupier can be found liable, and that in the definition of the occupiers liability act there has to be a degree of control by the person over the use of that land for them to be an occupier.

 

So for example, if someone who you allow to go shooting on your land shoots someone else on that land by accident, you too as the landlord or the tenant farmer with the right to let shooting, could be caught up in an insurance claim

 

If there is a written agreement for example, and the shooting rights / permission was thus confirmed I would say its pretty clear cut that a person would be an occupier of the land.

 

As I say, worth a call to the police to check, as views may vary (no surely not) between constabularies about this.

 

David

[DaveK]

Not to mention the fact that I simply can't see what shooting rights and the use of the term 'occupier, in this context, have got to do with a bit of a ****-up about a brewery. Anyone would think they were on about the Black Cat!

 

I'd like some of what you're on. That made no coherent sense at all.

[wymberley]

I'd like some of what you're on. That made no coherent sense at all.

 

Yep, I agree that the Black Cat may not make sense to you - to be honest it confuses a lot of Devon Locals and was specifically targetted. But the lack of understanding about the brewery shows a lack of initiative possibly.

[JonathanL]

I wouldn't like to be the one that takes that before a jury.

 

I don't see it being a problem. Even the HO says that somene with the rights to lawfully shoot on the land is almost certainly an 'occupier' for these purposes. I have to say that I agree as it would appear in line with the general reasoning of what constitues an occupier in other circumstances. There are differing degrees but if, for instance, you are the sole person having permission to shoot over the land then it's highly likely that you would be an occupier for legal purposes. In fact, I can't see how you couldn't be given the legal definition of what an occupier actually is.

 

J.

[JonathanL]

i guess the servant bit could refer if you have permission to shoot you could be considered a servant of the occupier,therefore you could lend your personal gun?

 

The servant bit is generally accepted to mean someone under the contractual control and dirfection of the occupier, an employee in other words. It's so that you can be taken stalking by the game keeper/pro-stalker or whatever. I don't see how the word 'servant' fits someone who just happens to rent the shooting rights. That would be the same as saying that a tenent who was renting your house was youyr servant which is clearly not the case.

 

Py the way; what was the original post in this thred about as it seems to have been edited out?

 

J.

[JonathanL]

I would ask the FEO in Notts to put his/her advice in print.

The information regarding clay shooting in particular is at odds with the written letter of the Law and if things went wrong a prosecution would be straightforward.

 

As with the conditions and other restrictions invented by many FEO's a lot of their advice is not as the Law states.

 

It may well be a practice which is seen through a blind eye, but if things go wrong the FEO will deny ever saying anything and the written letter of the Law will be taken in evidence.

 

Is it worth the risk of a revocation ??

 

This is one of the single best pieces of advice anyone can be given for things like this. The licensing departments say lots of things they know they can't justify and will never (usually never) put something in writing they know they can't back up. As an example; I know of a few people who have recently applied for pistols for humane dispatch. One chap did so on a renewal along with requesting several extra guns. The conversation with the guy who did his visit started along the lines of 'Well, there is no way we're giving you all this lot. Do you want me to just strike them off the application to save time?'. His reply was along the lines of 'Sorry but I'm not chaging anything, notify me of the refusal in writing as soon as possible so that I can start the appeal at court'. He never heard anything more of it and got everything on his renewal he had asked for.

 

J.

[pigeon pete]

thing is who set the firearms act ,home office or the police,the firearms act say one thing your local police say another !!!!

[JonathanL]

As has been said very recently in threads of a similar nature, the emphasis is, or should be, on not rocking the boat. Consequently, just out of interest as you are doing this on a professional basis which I would see as an entirely different kettle of fish and together with all that that entails, how do you relate the above to the quote at Post #20?

 

Not rocking the boat has been the attitude which has lost us more bits of the shootng sports than anything else! Rock the bloody boat.

 

J.

[JonathanL]

Wymberley

 

Further to your question above regarding the quote on post #20 and in general on this often debated matter, I am of the oppinion, as I often state, that permission to shoot on land from the occupier does not make that person (the one with permission) the occupier under the terms of the act.

 

The act is quite specific and the Wildlife and Countryside Act in its definition of the word occupier uses the word "right".

 

Right is a legal term and the holder of a right has, in law, the entitlement to do with that right as he pleases whereas someone with permission to shoot has been granted the "privilege" of shooting on the land. In law there is a distinct difference between a right and a privilege.

 

I am therefore, minded to believe that BASC are skating on thin ice by stating that someone who has permission to shoot qualifies as the occupier.

 

As a farmer, I certainly do not consider someone whom I have given permission to shoot as the occupier of my land.

 

Some good points here. I think we did this a few weeks back and, yes, there is some debate to it, I think.

 

Whether someone is an 'occupier' in law depends on the degree of control they have have over the land. It is not determined simply by the fact thaty someone may own the land and there are circumstances under which an owner may not actually be an occupier. Also, there can be more than one occupier at the same time and some people may only be occupiers for certain purposes.

 

In the case of someone who has an actual formal lease for the exclusive shooting rights on the land then I don't think that there is any question that he is an occupier. He has sole legal control of the land for the purpose of shooting and can even prevent the legal owner from shooting on it.

 

J.

[JonathanL]

I agree with Charlie on this,just because if i give someone permission to shoot on any of our land it does not make them a occupier and if they take someone who has no certificate i have to be with them.

 

I think it would depend on the specific nature of your agreement. If you say to the guy that he is the only person allowed to shoot on the land, even for just that day, then I think that a court would hold him to be an occupier because he effectively has control over the land for the purposes of shooting. It would get a bit more involved than that but that, I think, is the basic position.

 

J.