Sporting rights: the implications over potential development land

When acquiring land for development it can be all too easy to overlook the presence of sporting rights and the knock-on effects they can have.

However, sporting rights should not be treated lightly as they can severely affect how the land may be used, even being capable of preventing development of the land entirely.

What are sporting rights?

Sporting rights are a type of right granted by a land owner to a third party, entitling them to undertake activities on the land. Most commonly, these activities involve fishing, hunting, and shooting. Such rights are characterised by the term ‘profits à prendre’.

In the way they are created and terminated, sporting rights are in fact treated very similarly to easements. Whilst it may be easy to assume that sporting rights are granted by license and easy to terminate, the legal reality is that they are often granted by deed and are very difficult to terminate unilaterally.

Once sporting rights have been granted by a deed, there is an implied term that the grantor will not take any action that will have an effect of limiting or restricting the sporting rights. This is otherwise known as ‘derogation from grant’.

The relevant case

An old but leading case on what constitutes a derogation from grant, is Peech v Best. In this case, the owner of 700 acres of land subject to shooting rights sold 12 acres to a purchaser who intended to develop the land into stables and cottages. The beneficiary of the shooting rights argued that developing this land had the effect of infringing their right to shoot, and therefore constituted a derogation from grant.

It was held by the Court of Appeal that the use of 12 acres for development did constitute a derogation from grant. In lieu of an injunction, the Court awarded damages to the beneficiary of the shooting rights. Notably, the Court reached this decision despite the development land in question only making up 2% of the land that was subject to the shooting rights, which only had four years left to run. Even this minor infringement was capable of preventing development.

A pertinent question is therefore, how can sporting rights be terminated? In the absence of an express termination provision in the deed, the options of termination available are very limited in their scope.

Forms of termination

The most direct form of termination is by way of a signed deed between the land owner and all beneficiaries of the sporting rights. In practice, this is likely to be contingent on negotiating a release payment with the beneficiaries, which in our experience can typically be around 10% to 15% of the uplift in the value of the land.

Alternative methods of termination are ‘abandonment’ or ‘exhaustion'. For example, sporting rights may be impliedly abandoned by their beneficiary if there is a long period of non-use and an intention for the sporting rights to be released.

Alternatively, if the beneficiary expends the subject matter of the sporting right, as a result of which, for example, there is nothing left to hunt, it will be considered ‘exhausted’ and will no longer exist.