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Exercising shooting rights: the case of Winsley Hurst Hall and Estate


In a recent case of Fuller v Kitzing [2017] the High Court decided three interesting preliminary points which have important implicatons for the practice of shooting in England and Wales. The litigation was between Mr Jason Fuller, the owner of Winsley Hurst Hall, and Mrs Diana Kitzing; Mr Fuller is the freehold and long leasehold owner of Winsley Hurst Hall and some 30 acres of surrounding land at Burnt Yates, Harrogate. Mrs Kitzing is one of the trustees of the surrounding and neighbouring Winsley Hurst Estate and also the owner of the sporting rights over Winsley Hurst Hall which used to be within the ownership of the Estate; Mark Kitzing is her son.

Mrs Kitzing's mother had previously owned Winsley Hurst Estate and in 1989 she granted a lease of a property on the Estate which reserved a right of way for the lessor over a road running over the property. It also reserved all sporting rights over the Estate, including the right to stand guns on the Estate, the right to take game, and the right to come onto the Estate for the purpose of exercising the sporting rights and their management. However, it provided that no game would be reared or fed on the estate.

In 1990, part of the leased property was transferred to a new leasehold title, which Mr Fuller later acquired. The road ran along the boundary of the new property, Winsley Hurst Hall, which was comprised of the house and garden.

In 1997, Mrs Kitzing became a trustee of the Estate and she inherited the sporting rights from her mother, and they were vested in her as a “freehold profit à prendre” (which is a right to take something from another's land). Mr Fuller acquired his lease in 2012 and later bought the freehold reversion and additional land. The freehold land remained subject to the 1989 lease and the transfer excluded the sporting rights. Mr Fuller objected to Mrs Kitzing’s shooting parties coming close to the house and entering the garden.

The issues were whether: (1) the sporting rights authorised Mrs Kitzing to preserve or rear game or to introduce young birds, or poults, onto the land; (2) the sporting rights could lawfully be exercised within 300m of the house or in the garden and (3) whether the right of way over the road could only be used for travelling to or from retained parts of the Estate.

The issues were all decided in favour of Mrs Kitzing.

Firstly the High Court confirmed that a game bird can be "wild" (and the subject of a “profit à prendre”) even if the bird has been bred and fed by ‘human agency’, provided that it has been released back into the wild.

Further, the person having the sporting rights could enter the servient land (the land subject to the rights: in this case Mr Fuller’s land) both to feed the wild birds and to protect them from outside threats such as vermin. However, the right did not authorise the person with the sporting rights to introduce poults or pheasants on the servient land or erect pens on it.

The 1989 lease expressly entitled Mrs Kitzing to ‘stand guns’ on the land held under the lease. She could not be restricted from shooting on any of that land so that there could be no blanket ban on shooting rights within 300m of the house or in the garden. Nor was there any justification for implying any blanket provision against shooting on the further land acquired by Mr Fuller in 2015. However, as rights were to be exercised reasonably, the following restrictions applied: shooting should not take place from the house itself, its outbuildings or terrace; shooting should not deliberately take place in the direction of the house and notice should be given to the claimant the evening before a day's shooting of the timing of any shooting in the vicinity.

The Court also decided that the right of way could be used for any lawful purpose connected with the dominant tenement (ie the land with the benefit of the right of way).

Comment


The issues in this case were said to raise "novel and important questions" about shooting and access rights, which may have important implications for the practice of shooting.

For further information relating to the points raised in this article, please contact Johanne Spittle, Director and member of the Agriculture and Landed Estates Team.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.


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