Intresting question - Owner vs Farmer

[TIGHTCHOKE]

20 minutes ago, Free range Rob said:

thankfully, most tennant-owner relationships are pretty amicable, and it would take quite an issue to make this scenario arise.

Amen to that!

[WalkedUp]

We have permission on one small piece of land via the owner, the farmer took a lease with us sitting. They have their own ‘guns’. In our arrangement the farmer has to give us permission when there are crops in - so we don’t ever shoot then, but when it is fallow we are allowed on to shoot by the owner. Very weird and definitely not based in any law. 

On another permission we were shooting pigeons over laid barley and the gamekeeper of the adjacent estate complained to our farmer/owner that the sporting rights had been withheld so did not have permission. He checked with his solicitor who agreed that sporting rights hadn’t been transferred. We didn’t bother to point out vermin rights or responsibilities being different and just accepted our lot rather than cause a ruckus. 

[wymberley]

Rights and permission is a contradiction in terms.

[London Best]

A friend of mine bought 500 acres of sporting rights in the 1980’s. 
The farmer, who had bought the land but not the sporting rights, did not want anyone shooting at all but could do nothing about it.
My friend ran a very successful 60 birds/day small driven pheasant shoot for several years.

[Scully]

Our rough shoot is bordered on a large part by a long stretch of river to which a local hotel owns the sporting rights for fishing, this means a mate who owns the land can’t fish it unless he stays at the hotel, which is less than a mile away. 🙂

Edited July 17, 2021 by Scully

[CharlieT]

Any agricultural tenancy or lease/license worth its salt will cover such reserved matters.

I would suggest the OP reads the detail in his agreement and addresses any queries he has with the solicitor or land agent who drew it up.

However, if pigeons are not contractually mentioned, the tenant cannot override the owner wishes, although he may be able to claim damages as one would do with pheasant damage.

Of course it would be a strange owner who forbade a farmer from  protecting his crops by shooting, but and a big but, it is not unfair to stipulate that such shooting should not be done by anyone other than the farmer or members of his household.

[Cranfield]

I would suggest that the answer will always lie in the agreement/lease between the owner and the tenant.
I doubt there is a catchall answer to this question.

[scolopax]

On 16/07/2021 at 21:21, clangerman said:

legal position is irrelevant no farmer is going to upset the land owner so someone can shoot anything let alone pigeons simple as that 

 

not too sure about that? Farm tenancies are normally very secure and some tenants take great pleasure in figuratively sticking two fingers up to the actual landowner at each and every opportunity. 

15 hours ago, London Best said:

A friend of mine bought 500 acres of sporting rights in the 1980’s. 
The farmer, who had bought the land but not the sporting rights, did not want anyone shooting at all but could do nothing about it.
My friend ran a very successful 60 birds/day small driven pheasant shoot for several years.

 very difficult to run a successful shoot without the buy in of whoever is farming the land. A hostile / awkward farmer can make a shoot unviable.

[London Best]

8 hours ago, scolopax said:

very difficult to run a successful shoot without the buy in of whoever is farming the land. A hostile / awkward farmer can make a shoot unviable.

The farmer was as awkward as possible. He saw me out with a rifle one day and told me he was not prepared to have any rifles on his land. I just told him I had permission from the owner of the sporting rights....end of conversation. He didn’t realise it was only an air rifle, so I didn’t tell him that. Fortunately, we did not need any cover crops to produce good driven pheasants. The ground was two sides of a valley, heavily wooded both sides with about a quarter mile flat between. So we just flew the pheasants back and forth.  
I fed a pond for duck. The first time we shot it the farmer came over shouting, “I’m not having any shooting here at this time of night, it’s nearly dark.”  We simply explained that it would be happening regularly. I wanted to duck flight on a Sunday evening just to upset him (he was a religious zealot) but my friend thought it was as step too far.

[wymberley]

1 hour ago, London Best said:

The farmer was as awkward as possible. He saw me out with a rifle one day and told me he was not prepared to have any rifles on his land. I just told him I had permission from the owner of the sporting rights....end of conversation. He didn’t realise it was only an air rifle, so I didn’t tell him that. Fortunately, we did not need any cover crops to produce good driven pheasants. The ground was two sides of a valley, heavily wooded both sides with about a quarter mile flat between. So we just flew the pheasants back and forth.  
I fed a pond for duck. The first time we shot it the farmer came over shouting, “I’m not having any shooting here at this time of night, it’s nearly dark.”  We simply explained that it would be happening regularly. I wanted to duck flight on a Sunday evening just to upset him (he was a religious zealot) but my friend thought it was as step too far.

For the benefit of others, let's stay with the rifle being an FAC item for a moment. Am I right in thinking that that permission would need to be in writing?

[London Best]

Just now, wymberley said:

For the benefit of others, let's stay with the rifle being an FAC item for a moment. Am I right in thinking that that permission would need to be in writing?

No.

[PeterHenry]

23 hours ago, CharlieT said:

Any agricultural tenancy or lease/license worth its salt will cover such reserved matters.

I would suggest the OP reads the detail in his agreement and addresses any queries he has with the solicitor or land agent who drew it up.

However, if pigeons are not contractually mentioned, the tenant cannot override the owner wishes, although he may be able to claim damages as one would do with pheasant damage.

Of course it would be a strange owner who forbade a farmer from  protecting his crops by shooting, but and a big but, it is not unfair to stipulate that such shooting should not be done by anyone other than the farmer or members of his household.

I agree - it would be a strange owner who wished that the farmer had no protection for his crops - but in the case of tenant who lives miles away, and an owner who lives on the doorstep and runs a shoot over the land, you could see why they would wish to prevent too many people shooting over the land. Also, largely in agreement, see below -

21 hours ago, Cranfield said:

I would suggest that the answer will always lie in the agreement/lease between the owner and the tenant.
I doubt there is a catchall answer to this question.

So, the nature of an agricultural tenancy under the Agricultural Holdings Act 1985 effectivly means it can be inferred, and does not require a written agreement to form a tenancy protected by statute. These can span generations and as such landowners can be locked into them through no doing of their own. They are also not as uncommon as you would think - when the act was fully in force, you could literally fall into them and some of the more unscrupulous farmers (god bless them) used this to their advantage.

The 1985 Act contains the below, in the case of the tennency being unwritten, or not covering what you could broadly call sporting rights (inclusive of pigeon shooting in this case, as far as I can tell)

Compensation for damage by game

(1)Where the tenant of an agricultural holding has sustained damage to his crops from any wild animals or birds the right to Mil and take which is vested in the landlord or anyone (other man the tenant himself) claiming under the landlord, being animals or birds which the tenant has not permission in writing to kill, he shall, if he complies with the requirements of subsection (2) below, be entitled to compensation from his landlord for the damage.

(2)The requirements of this subsection are that the tenant shall give his landlord—

(a)notice in writing within one month after the tenant first became, or ought reasonably to have become, aware of the occurrence of the damage,

(b)a reasonable opportunity to inspect the damage—

(i)in the case of damage to a growing crop, before the crop is begun to be reaped, raised or consumed, and

(ii)in the case of damage to a crop which has been reaped or raised, before the crop is begun to be removed from the land, and

(c)notice in writing of the claim, together with particulars of it, within one month after the expiry of the year in respect of which the claim is made.

As far as I can tell, this suggests that in the case of there being no written permision held by the tennent, he is only entitled to compensation - and cannot allow pepole to shoot (anything other than rabbits and even then only under the strict terms of the Ground Game Act 1880).

What it doesn't do though, is sit very well with the terms of the current general licence, which states that 'owners' and 'occupies (subject to the provisions of the GL) can authorize people to shoot pigeions - and that's really the crux of my point. My personal issue aside (and although for the moment things for most people tend to work fine in practice, as did the old general license) - theres the possibility for a lot of members on this forum to regularly be committing armed tresspass and poaching, albeit without knowing.

[CharlieT]

20 minutes ago, PeterHenry said:

 

As far as I can tell, this suggests that in the case of there being no written permision held by the tennent, he is only entitled to compensation - and cannot allow pepole to shoot (anything other than rabbits and even then only under the strict terms of the Ground Game Act 1880).

What it doesn't do though, is sit very well with the terms of the current general licence, which states that 'owners' and 'occupies (subject to the provisions of the GL) can authorize people to shoot pigeions - and that's really the crux of my point. My personal issue aside (and although for the moment things for most people tend to work fine in practice, as did the old general license) - theres the possibility for a lot of members on this forum to regularly be committing armed tresspass and poaching, albeit without knowing.

You are confusing two totally different bits of legislation.

The GL is just that, a general licence which legalises the killing, under the terms of the license, birds which would otherwise be protected. It in no way infers any right or authority to enter land to do so, it clearly states that only an authorised person may authorise action covered by the licence but what it does not do is authorise any occupier to do so if they have no legal right to do so under the terms of their tennancy.

 

[PeterHenry]

18 minutes ago, CharlieT said:

You are confusing two totally different bits of legislation.

The GL is just that, a general licence which legalises the killing, under the terms of the license, birds which would otherwise be protected. It in no way infers any right or authority to enter land to do so, it clearly states that only an authorised person may authorise action covered by the licence but what it does not do is authorise any occupier to do so if they have no legal right to do so under the terms of their tennancy.

 

I'm not - I'm concerned regarding the apparent contradiction between two pieces of legislation.

This is footnote 4 of the current GL42 - 

'Authorised person’ is defined in section 27(1) of the 1981 Act. It includes the owner or occupier of the land on which action authorised by this licence is to be taken, or any person authorised by the owner or occupier.'

Reading that, it seems to me to be an explicit licence to the owner or occupier of the land, subject to whatever clauses are contained in the licence and the Wildlife and Countryside Act 1981.

-------

Section 27(1) of the Wildlife and Countryside Act 1981 to which the above refers -

'27 Interpretation of Part I.E+W

(1) In this Part, unless the context otherwise requires—

(...)

“authorised person” means—

(a)

the owner or occupier, or any person authorised by the owner or occupier, of the land on which the action authorised is taken;

(b)

any person authorised in writing by the local authority for the area within which the action authorised is taken;

(...)'

That does not sit in any comfortable way with Section 20 of the Agricultural Holdings Act 1985 that only mentions a right to compensation in the event the occupier does not have written permission to shoot.

Edited July 18, 2021 by PeterHenry

[wymberley]

1 hour ago, London Best said:

No.

That's a relief, bit late after 30 odd years.

[captainhastings]

I asked a farmer once who rented his fields out who do I need permission off and he said me. The fella renting said the same thing lol. Basically I would all ways go with the owner and tend to ask them first but lucky most people get on well 

[CharlieT]

1 hour ago, PeterHenry said:

I'm not - I'm concerned regarding the apparent contradiction between two pieces of legislation.

This is footnote 4 of the current GL42 - 

'Authorised person’ is defined in section 27(1) of the 1981 Act. It includes the owner or occupier of the land on which action authorised by this licence is to be taken, or any person authorised by the owner or occupier.'

Reading that, it seems to me to be an explicit licence to the owner or occupier of the land, subject to whatever clauses are contained in the licence and the Wildlife and Countryside Act 1981.

-------

Section 27(1) of the Wildlife and Countryside Act 1981 to which the above refers -

'27 Interpretation of Part I.E+W

(1) In this Part, unless the context otherwise requires—

(...)

“authorised person” means—

(a)

the owner or occupier, or any person authorised by the owner or occupier, of the land on which the action authorised is taken;

(b)

any person authorised in writing by the local authority for the area within which the action authorised is taken;

(...)'

That does not sit in any comfortable way with Section 20 of the Agricultural Holdings Act 1985 that only mentions a right to compensation in the event the occupier does not have written permission to shoot.

You are.

The GL does not give the occupier, ie tenant, additional rights above and beyond those rights he/she already stipulated in his/her tenancy agreement.

I would suggest it's time you put away your amateur legal hat and sought professional advice from someone who can guide you correctly.

[JDog]

2 minutes ago, CharlieT said:

You are.

The GL does not give the occupier, ie tenant, additional rights above and beyond those rights he/she already stipulated in his/her tenancy agreement.

I would suggest it's time you put away your amateur legal hat and sought professional advice from someone who can guide you correctly.

Correct.

Peter Henry has been trying to baffle us poor uneducated pigeon shooters with his Legal brain, setting up a scenario which actually doesn't exist. Common sense is all that is required in most instances. If that doesn't work it will only be a simple matter of finding out who has the right to control vermin by referencing the Tenancy Agreement (in the case of a Tenant farmer) or the Shooting Rights/Lease/Contract in the case where the shooting (vermin or otherwise) is let away from the Estate or farm.

[PeterHenry]

5 hours ago, CharlieT said:

You are.

The GL does not give the occupier, ie tenant, additional rights above and beyond those rights he/she already stipulated in his/her tenancy agreement.

I would suggest it's time you put away your amateur legal hat and sought professional advice from someone who can guide you correctly.

Regardless of my legal hat being amateur or not, which is a debatable matter in itself....

Under a statutory tenancy with only the basic statutory terms under the Agricultural Holdings Act (as mentioned before) there is no right to designate pigeon shooting by default for the purpose of the Act. It has to be done in writing. A lot of these tennency agreements were effectively fallen into - because if you let a field to a farmer, it automatically fell under the statutory terms during a certain time period.

So - that leaves us in the possition of a strong and reasonable piece of primary legislation that spells out the rights and wrongs.

However, the general licences (as far as I can tell) are statutory instruments issued by the relevent security of state - this makes them secondary legislation. 

Now, I would be inclined to think (as I can vaguely remember being taught when I studied law) that there is an order to things - and in this case it may well be that (as I seem to remember) more recent legislation trumps older legislation. If this was the case, the secondry legislation created by virtue of the wildlife and countryside act (gl42 for present purposes) would trump the agricultual holdings act. This would (if true) be supported by virtue of the licences being reissued (now) every year.

However, there is a serious democratic deficit in the system if secondry legislation (made by a government minister and not put to a vote) upspurs primarily legislation (made by parliament as a whole). That aside, because for the purposes of the present conversation whether or not something is democratic is irrelevant, I would be tempted to think, on the balance of things that the general licenses (probably unintentionally) override the agricultural holdings act. I personally think this feels wrong, but my feelings are by the by.

However, if that is the case then an argument could be happily made that the Agricultual Holdings Act overrides in part the Ground Game Act of 1880.... but yet pepole still qoute that as good law....

Such things are court cases made of

 

4 hours ago, JDog said:

Correct.

Peter Henry has been trying to baffle us poor uneducated pigeon shooters with his Legal brain, setting up a scenario which actually doesn't exist. Common sense is all that is required in most instances. If that doesn't work it will only be a simple matter of finding out who has the right to control vermin by referencing the Tenancy Agreement (in the case of a Tenant farmer) or the Shooting Rights/Lease/Contract in the case where the shooting (vermin or otherwise) is let away from the Estate or farm.

Hahaha, I would never think of the citizens of pigeon watch poor and uneducated. Although - as I am sure you (and everyone will) also feel - occasionally someone will post something that on a personal level we feel is utter dross - this forum remains a relative bastion of good sense and helpful individuals. Although I dont post a great deal, I spend a significant amount of my time browsing and for the most part am taken back by the lucidity of the place compared to other forums.

My point is that in certain situations there may well be a significant ambiguity as to whether you have the right to shoot somewhere. And I, for one (especially in this day and age), like to know I am on firm legal ground when I'm holding a gun in my hands.

Edited July 18, 2021 by PeterHenry

[TIGHTCHOKE]

33 minutes ago, PeterHenry said:

My point is that in certain situations there may well be a significant ambiguity as to whether you have the right to shoot somewhere. And I, for one (especially in this day and age), like to know I am on firm legal ground when I'm holding a gun in my hands.

Then surely in your position and with your contacts you must be able to get a friendly QC to make a judgement?

The rest of us will just carry on seeking and gaining permissions and shooting over them.

[PeterHenry]

5 minutes ago, TIGHTCHOKE said:

Then surely in your position and with your contacts you must be able to get a friendly QC to make a judgement?

The rest of us will just carry on seeking and gaining permissions and shooting over them.

That's a bit like saying your going to get your profesional acquaintance who's a photographer to photograph your wedding. Or your freindly acquaintance who is a brick layer to put up the extension to your house. The answer is probably going to be yes, but you will pay for the privillage.

If you are happy with your arrangements, that's fine by me. But as we were all caught off guard by the general licence fiasco, its hardly a disservice to bring to pepoles attention potentially shakey ground - especially if they are planning to shoot over it.

[WalkedUp]

8 hours ago, London Best said:

No.

Only one of my permissions is I writing. In an ideal world they all would be, but I can understand reluctance to sign. I keep myself covered with text messages. 

[CharlieT]

3 hours ago, PeterHenry said:

 I would be tempted to think, on the balance of things that the general licenses (probably unintentionally) override the agricultural holdings act. I personally think this feels wrong, but my feelings are by the by.

 

 

 

Peter

You seem to be under the impression that GL42 authorises an occupier to authorise action under the licence, even when the occupier specifically prohibited from doing so by their lease or licence. 

Can you please point out to me where in GL42 it is so written, because I, for the life of me, can't find it.

I would, however, suggest you make contact with DEFRA and pose your question to them, you will then have your definitive answer.

[PeterHenry]

46 minutes ago, CharlieT said:

Peter

You seem to be under the impression that GL42 authorises an occupier to authorise action under the licence, even when the occupier specifically prohibited from doing so by their lease or licence. 

Can you please point out to me where in GL42 it is so written, because I, for the life of me, can't find it.

I would, however, suggest you make contact with DEFRA and pose your question to them, you will then have your definitive answer.

Sorry, crossed wires - that's not what I'm saying.

I'm saying that the general licence (gl42) as a piece of secondary legislation seems to grant occupiers as defined by the Wildlife and Countryside Act the right to allow pigeon shooting, in the instance that they have an agricultural tenancy under the agricultural holdings act, that relies solely upon the statutory terms and so is therefore silent on the subject of shooting. 

I'm not saying gl42 grants occupiers the right to allow pigeon shooting when the tennency expressly forbids is - only in the case where there is a vacuum in the agreement (most probably) due to it relying on the infered terms of the agricultural holdings act.

I think that's potentially a fairly substantial grey area.

Edited July 18, 2021 by PeterHenry

[Dangerous Brian]

14 hours ago, PeterHenry said:

Sorry, crossed wires - that's not what I'm saying.

I'm saying that the general licence (gl42) as a piece of secondary legislation seems to grant occupiers as defined by the Wildlife and Countryside Act the right to allow pigeon shooting, in the instance that they have an agricultural tenancy under the agricultural holdings act, that relies solely upon the statutory terms and so is therefore silent on the subject of shooting. 

I'm not saying gl42 grants occupiers the right to allow pigeon shooting when the tennency expressly forbids is - only in the case where there is a vacuum in the agreement (most probably) due to it relying on the infered terms of the agricultural holdings act.

I think that's potentially a fairly substantial grey area.

 I can't see where GL42 grants additional rights to the occupier. It provides a means to control pest species without falling foul of the Wildlife and Countryside act. Any other permissions/ rights needed to shoot on a particular piece of land don't seem to fall under it's scope.