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Thread: Closed season and owner occupier rights

  1. #1

    Closed season and owner occupier rights

    Thought this might be useful to some!

    Changes to the provision to shoot deer in the close season and at night as a result of the Wildlife and Natural Environment (Scotland) Act 2011

    http://www.snh.gov.uk/protecting-scotlands-nature/species-licensing/deer/authorisations/

  2. #2
    I note that in the "view" of SNH a sporting lessee is not an occupier -

    "Where third party controllers e.g. sporting tenants are utilised, it is our view that they must be authorised in writing by the owner/manager of that woodland and on the SNH Fit & Competent register to operate under the general authorisation"

    As far as I am aware this is not the "view" that has been taken previously e.g. in relation to the prosecution of poachers or the previous (strictly speaking, current) regime of the lessee being the "occupier" for the purposes of out of season shooting on enclosed woodland.

    It appears we need some precedents to show this either way - that a lessee is an "occupier" ??

  3. #3
    Quote Originally Posted by kuwinda View Post
    It appears we need some precedents to show this either way - that a lessee is an "occupier" ??
    Are you volunteering to be the test case kuwinda? The problem with precedent is that someone has to take the risk of the precedent going against them, I don't see a long line of volunteers queueing up outside the courts!

  4. #4
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    There seems to be no contention that the sporting lessee is an occupier. The problem seems to be that in order to qualify for the exemption proximity to the financial imperative (ie. protecting one's assets) is perceived as excluding the sporting tenant from some of the rights, over say the owner or agricultural tenant. However, I'm fairly confident that a sensibly written lease (or even letter of acceptance) could resolve this issue beyond reasonable argument. IMHO that is.

  5. #5
    The Deer (Scotland) Act 1996 provides the following definition- "occupier" in relation to any land includes any tenant or sub-tenant, whether in actual occupation of the land or not;

    There is no definition of a sproting lease in the Deer Act or the WANE Act and as such if the lease between landlord and tenant specifies that the stalker is a tenant then IMHO the 'occupier' rule applies and you can shoot out of season without being fit and competent.

    Notwithstanding this, SNH are then implying that you can be an owner or agriculural tenant/occupier and be unfit and still shoot deer- where is the sense in that?

  6. #6
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    Quote Originally Posted by firsttimer View Post
    The Deer (Scotland) Act 1996 provides the following definition- "occupier" in relation to any land includes any tenant or sub-tenant, whether in actual occupation of the land or not;

    There is no definition of a sproting lease in the Deer Act or the WANE Act and as such if the lease between landlord and tenant specifies that the stalker is a tenant then IMHO the 'occupier' rule applies and you can shoot out of season without being fit and competent.

    Notwithstanding this, SNH are then implying that you can be an owner or agriculural tenant/occupier and be unfit and still shoot deer- where is the sense in that?
    Not sure you've read it right.

    In the SNH publication, linked in the OP, here's the paragraph that nips...

    "Occupiers are defined in the Deer (Scotland) Act 1996 as any tenant or sub-tenant, whether in actual occupation of the land or not. In order to operate under the general authorisation, occupiers would need to be able to satisfy a Court that they were preventing damage to their legitimate objectives. Essentially, this will mean that agricultural tenants will be able to operate under the general authorisation but that sporting tenants (of either agricultural land or woodland) would not on the basis that they do not have sufficiently close connection with the loss being sustained or the required level of detail of the management objectives. This does not prevent a 3rd party (i.e. the sporting tenant) from operating on behalf of an occupier provided that they are authorised in writing by the occupier for that purpose AND are on the SNH Fit & Competent register."

    Right or wrong they issue the authorisation, so I think you need to obviate their assumption and become "closely connected", As I said earlier, get your lease drafted accordingly or submit a letter of acceptance which ties you in to being "connected" to the "loss" and Robert becomes one's uncle.

    p.s. This only what I "think"... doubtless others will think differently. That does not mean I'm necessarily wrong though.
    Last edited by Tamus; 15-03-2012 at 15:55. Reason: p.s.

  7. #7
    This is all getting a bit grey.The WANE act is fairly clear - SNH has the power to issue a general authorisation to "occupiers" and also assumes, amends and adds to the provisions of the Deer (Scotland) Acts 1963 and 1996. The latter provides the above definition of "occupier", which does no more than codify the provisions of the common law. My legal education does not extend to Land Law and I have not as yet caught up with the precedent to support this - but the implications are very clear. If anyone else can fill this out then ditch in.SNH has stated that its "view" is that a sporting tenant (one n) is not an occupier - this flies in the face of both the above definition and the common law. SNH has no power to interpret the Law - either common or statute and I don't really see how it can issue an order/general authorisation/general license which redefines the existing statutory and common law definitions?As to the potential difficulties of "proving" damage - thats a whole big grey area - has this ever come to court - can you imagine the polis taking this to the Fiscal?

  8. #8
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    Quote Originally Posted by kuwinda View Post
    This is all getting a bit grey.The WANE act is fairly clear - SNH has the power to issue a general authorisation to "occupiers" and also assumes, amends and adds to the provisions of the Deer (Scotland) Acts 1963 and 1996. The latter provides the above definition of "occupier", which does no more than codify the provisions of the common law. My legal education does not extend to Land Law and I have not as yet caught up with the precedent to support this - but the implications are very clear. If anyone else can fill this out then ditch in.SNH has stated that its "view" is that a sporting tenant (one n) is not an occupier - this flies in the face of both the above definition and the common law. SNH has no power to interpret the Law - either common or statute and I don't really see how it can issue an order/general authorisation/general license which redefines the existing statutory and common law definitions?As to the potential difficulties of "proving" damage - thats a whole big grey area - has this ever come to court - can you imagine the polis taking this to the Fiscal?
    Welcome to the Bonnie Scotland of SNH.

    You are mostly right in what you say but this is nothing new. Look at the published access code if you want an absolute wealth of SNH "interpretation". It's what they do. But it doesn't necessarily work the way they say... Ref: Ann Gloag, et al.

    Incidentally, they don't actually say sporting tenants are not occupiers they just imply that some occupiers are more equal than others.

    What we're supposed to make of all this I'm not sure. I guess you can either wait for the court cases or try and cover your ass... All suggestions welcome.

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