Shooting & Fishing Rights
Rural and estate land is often used for sporting activities such as shooting and fishing, sometime with the landlowner’s permission and sometimes not. We can advise clients on fishing rights in both tidal and non-tidal waters, including their acquisition, and the regulations of fishing rights by government agencies. We can also advise on whether fishing rights granted under a lease have security of tenure under the Landlord & Tenant Act 1954.
We advise on exclusive and non-exclusive shooting licences and leases, their termination and disputes arising from their breach, including breaches of the Code of Good Shooting Practice.
It is estimated that there are around 140,000 miles of public footpaths and bridleways in England and Wales. Whilst that network of footpaths (and the tourism it feeds) contributes to the rural economy, their use does also contribute to erosion and some inconsiderate walkers do not shut gates or keep their dogs on leads, leading to sheep worrying and loss of livestock. Sheep worrying is a criminal offence, but is rarely enforced. The law requires dogs to be kept on a fixed lead of 2 metres or less near livestock. Hägen Wolf recommends the use of prominent signage to educate and discourage walkers from doing this.
The Wildlife and Countryside Act 1981 places a statutory duty on local authorities to maintain a Definitive Map and Statement recording all public rights of way in their area, and to keep these under continuous review. Where evidence is submitted showing that a public right of way not already shown on the Definitive Map and Statement exists or is “reasonably alleged” to exist, local authorities are required to update the Map and Statement. This is done by way of a Definitive Map Modification Order. This Order will be made by the local authority and then confirmed, either by the local authority or, where objections are made by any party and not withdrawn, by the Secretary of State following an inquiry. Before the Order is confirmed, the decision maker has to be satisfied that, on the balance of probabilities, the public right of way exists.
New Public Rights of Way
New public rights of way can be created by express grant, by order of a public authority, or by “dedication” by the landowner. The most common route is by way of presumed dedication, which arises where the public have been enjoying a route for over 20 years without challenge, ‘as of right’. Where the prescribed tests are met, the presumption is that a public right of way exists unless there is sufficient evidence that the landowner did not intend during the relevant 20 year period to dedicate it. The onus is therefore on the landowner to actively prevent rights of way from being acquired.
What can the landowner do?
There are a number of options:
- Display notices
- Prevent access with locked gates, fencing or other obstructions
- Closing the way for at least a day per year and verbally challenging use of the way
- Allowing access by permission
Unfortunately though, none of these methods are watertight. Notices, fences and gates can be a burden to maintain and a landowner cannot be expected to be present to challenge the use each time a member of the public walks the way. A landowner may not even know about the use in the first place or have time to scour the estate for possible paths. In order for a notice to have legal effect, it must contain very clear and specific wording, although we can advise landowners on appropriate wording on a case by case basis.
Given the above, the most effective way for a landowner to demonstrate a lack of intention is to deposit a landowner statement under section 31(6) of the Highways Act 1980. The statement can cover the entirety of the landowner’s holding should be accompanied by a map indicating the ways across that land (if any) that the landowner acknowledges to be public rights of way. It constitutes a formal declaration to the effect that the landowner does not intend to dedicate any additional public rights of way beyond those delineated on the map. The section 31(6) deposit effectively stops the clock for 20 years. Any public use of the land during this period will not count towards the establishment of new rights of way. The landowner should renew the statement within 20 years, confirming that no new rights of way have been dedicated since the date of the previous deposit. This is something that we can assist with.
Whilst the above procedure is invaluable, it will not affect public rights of way already shown on the Definitive Map, nor will it defeat an application where it is possible to establish a 20 year period of uninterrupted use expiring before the initial deposit of the statement and plan.