Before the Land Reform (Scotland) Bill 2024, the Land Reform (Scotland) Act 2016 also sought to promote and facilitate good practice between landowners and farm tenants.
Bob McIntosh was appointed as Scotland’s Tenant Farming Commissioner and has produced a suite of Codes of Conduct intended to guide and shape the behaviours and processes which accompany interactions between landlord and tenant.
Of interest to some at this time of year will be the code relating to the Management of Relationships Between Agricultural Tenants and the Holder of Sporting Rights. This deals with the situation where the landlord (or a third party) exercises sporting rights on tenanted land and also with the situation where a tenant farmer is suffering damage from game species – useful to be mindful of in light of the proposed Bill.
The key principles behind this are respect for the other party’s rights to enjoy their land and communication to establish a good working relationship.
Landlords should ensure their employees and sporting tenants are made aware of this code and ideally ensure that new sporting leases comply with and reference the code of practice.
As noted, communication is key, and tenant farmers should be advised as to who is exercising the sporting rights in advance and be provided with the details of key contacts with whom they can discuss any issues they have.
In the case of let sporting rights, the sporting tenant should be provided with the details of the agricultural tenant and maintain regular contact with them.
Matters such as required access across agricultural land should be discussed in advance, with the holder of the sporting rights prepared to agree that certain areas are to be avoided. Where possible, low impact vehicles such as quadbikes should be used and in addition, vehicles should stick to recognised tracks. Where necessary, off-road routes should be agreed along with any required parking spots prior to the exercise of any routes. Both parties should act reasonably when considering these points.
When it comes to exercising their sporting rights, agricultural tenants should be informed of planned shoot dates and locations and advised of any changes. In turn, agricultural tenants should advise of any planned farming operations which may cause a clash. Again, both parties should act reasonably in agreeing or amending their plans.
Similarly, agricultural tenants should be notified of the likely frequency and time of visits where there are no formal shoot days and when nighttime activities are planned with advance access arrangements put in place.
In addition to keeping agricultural tenants informed of arranging sporting activities, subtenants of the farmer should also be kept informed by the agricultural tenant. Ideally, any farm tenants should be aware that sporting rights exist when entering into their lease.
The code includes provisions for dealing with damage caused by game and other animals and here we see the link between the code and perhaps the basis of the proposed legislation contained in the Land Reform (Scotland) Bill.
In the code, it is noted that if the level of game stock held is increased during the tenancy and there are no provisions for this in the lease, the tenant may be able to claim compensation for damage caused due to the increased level of stock.
Where damage is being inflicted by birds or animals, the agricultural tenant should discuss this with the sporting rights holder. Where it is inflicted by deer, they should discuss with the landowner and/or the holder of the deer shooting rights to agree on a course of action.
While agricultural tenants can take action against hares or rabbits they may only take or kill deer if certain criteria are met. If it is the case that despite this, damage occurs that the tenant considers to be unacceptable, they may be eligible for compensation and a claim made provided the correct procedures are followed.
If one party believes that there has been a breach of the code, parties are recommended to discuss the issue and with a fair and reasonable approach taken by both parties, a solution should be possible.
If the issue cannot be resolved through discussion or mediation, either the landlord or the agricultural tenant can make a complaint to the Tenant Farming Commissioner. It is recommended to consider mediation at a shared cost before resorting to litigation or making a complaint to the Tenant Farming Commissioner.
In the event that a sporting tenant alleges a breach of the code, the landlord, if satisfied on the extent of the breach and that it is unresolvable, should be the party to make any necessary complaint.