Pest litigation breeds like rabbits

The refusal of the Ministry of Agriculture, Food and Fisheries (MAFF) to acknowledge the existence of a Rabbit Clearance Order goes some way to explaining why landowners – who estimate that rabbits cause about #100m worth of damage to their land every year – have reached the end of their tether.

The Rabbit Clearance Order No 148, which was issued in June 1972 under the provisions of the Pests Act 1954, stipulates that occupiers of land in a rabbit clearance area – and that covers virtually the whole country – must take steps either to kill the rabbits, or prevent them causing damage. The order empowers MAFF to carry out the work and then charge landowners who do not comply with the order.

As MAFF has denied any knowledge of this legislation, an increasing number of landowners whose property is being damaged by rabbits "trespassing" on to their land from neighbouring property, are now apparently turning to the law in order to seek redress.

And, in the wake of the latest unreported, but significant settlement of a county court action in Gloucestershire, it looks as though the steady trickle of such cases brought on since the beginning of the 1990s, could be about to turn into a torrent.

The landowners main target is Railtrack, whose railway embankments are apparently providing a safe haven for the massive numbers of rabbits, which are nothing but a costly pest to those owning adjacent land.

John Bishop, head of chambers at 7 Stone Buildings, has been involved in many of these cases over the years. But, while most have settled, a fully-fought test action has yet to take place.

Bishop accuses Railtrack of ducking responsibility for the problem.

"Landowners whose crops and property are suffering as a result of rabbit infestation from railway embankments, have a very frustrating time dealing with Railtrack. They say it tends to drag its feet and does as little as possible," he says.

The recent Gloucester case was in fact not against Railtrack, but Gloucestershire County Council.

Farmer Dan Powell, who for two years watched as his crops were decimated by rabbits coming from council land, sued Gloucestershire council for losses of around #25,000.

However, when potential legal costs reached the #20,000 mark, he settled the case for an undisclosed figure.

But the very fact his and other cases have settled with agreed payouts is encouraging more victims of rabbit damage to turn to the law, even though the individual sums involved may be relatively small.

"Collectively, the number of claims that those such as Railtrack might face could be colossal," says Bishop.

"Individually sums can be relatively small, but my advice to anyone whose land or crops are being damaged by rabbits from neighbouring property, is to litigate.

"Realistically few cases are likely to be up to High Court level. I think the majority would come under county court or even small claims arbitration matters. Nevertheless, when a landowner cannot get satisfaction in any other way, they should turn to the law."

The fact that cases have been settled up to now is seen as an indication that landowners who have been sued are aware of their obligations.

If a fully-contested test action does eventually go against those liable for damage to others' land, it could open a very costly litigation floodgate.

The actions that have been started and settled, or which are still in the pipeline, have been based on accusations of nuisance and breach of statutory duty under the provisions of the Pest Act 1954.

Bishop has a letter on file from MAFF denying all knowledge of the order which makes it responsible for enforcing rabbit clearance if landowners will not.

However, Bishop says he has a copy of the relevant order on his case file.

He says it is "astounding" that MAFF should have denied existence of the legislation, but he says that effectively they have more or less "privatised" the situation, leaving it to individual landowners with a complaint to litigate.

"Really I think that we have reached a point where both the Government and the landowners have got to stand up to their responsibilities," says Bishop.

"But I am sure that the process of persuading them to do so is going to involve increasing litigation."