Commoner's corner #Grazingisgood
Kerry Dovey | 20.03.2019
18.12.2017 Jack Keats
A recent decision in the High Court, Fuller v Kitzing and another  EWHC 810 (Ch), will be of interest to our readers regarding the interpretation of shooting rights especially when they are reserved to third parties.
Fuller V Kitzing concerned Mr Fuller, the owner of freehold property that formerly belonged to a larger estate who was infuriated that a third party, Mrs Kitzing, had the right to enter his land in the immediate vicinity of his house for shooting. Mrs Kitzing was expressly entitled under the terms of her lease to stand guns at Mr Fuller’s freehold property.
The High Court refused to impose a blanket ban on shooting within 300 metres of the main house or in the garden there. However, the Court did restrict shooting from or deliberately in the direction of the house, and required that Mrs Kitzing give notice of shoot times in the vicinity of the house.
The Court was clearly upholding the shooting rights granted under the lease, but imposing reasonable notice requirements, which in theory all practitioners should consider drafting into shooting licences and leases in light of this case.
The High Court also confirmed that a game bird can be “wild” and the subject of a profit à prendre (a right to take the game) even if bred and fed by human agency - provided it has been released back into the wild.
A right to “preserve and rear game” also exists and includes the right to protect game from outside threats (for example, controlling vermin) and the right to feed game birds already present, even if they had been introduced on neighbouring land as poults (young pheasants) in pens and later released.
Crucially, the High Court held that the right to protect game from vermin does not extend to the erection of pens, which is a common method used in practice for rearing game and perhaps a controversial decision that will require further legal commentary in the future.