A consultation on the future of the Land Court and the Lands Tribunal

We do not see that a case has been made that warrants this change and prefer the arguments for no change with policy attention instead being given to making each more effective. We are not aware of any substantial unhappiness by users over their present separation or of real gains to be made by unifying them.

As the Minister says in her Foreword “the work they do is quite distinct” and we fear a loss of specialism and regard were they unified. Parties acting in a multi-million pounds compulsory purchase case in Glasgow might wonder about a body that also handled crofting as a specialist court while a hill tenant farmer in a dispute with the Scottish Government over livestock support payments might equally wonder about being heard fairly and competently by people handling rating appeals on oil facilities. With such issues, we might guess that such a body would be unified more in name than in practice if it is to offer the intended service. We would rather see effort spent on improving the service offered by each:
- remedying present issues of pressure and delay found with both bodies
- quite possibly accepting the suggestions as to a broader service by each with more flexibility over their delivery.

Seeking proportionality and effectiveness is a better route than risking the confidence afforded by the present structures.

It might well be that there is the potential for more efficient sharing of back office arrangements and administration between the two services and doubtless for the better use of ever-developing technology, especially with the lessons from the ways found for work to continue through the Covid-19 pandemic.

The quotations at paragraphs 13 and 14 (and the observation at 54) stress the Land Court’s specialist position and style. Paragraph 15 summarise that it is an “expert tribunal” while the Court has referred in its decisions to itself as an “expert court”. This is in the very specific and complex contexts of agricultural tenancies, crofting issues and now agricultural and related support payments with their particular subjects, legislation, farming context and rural valuation
issues, none of which would of necessity be familiar to the generality of members of the Lands Tribunal.

There is insufficient overlap and commonality of expertise between the two bodies for them to be comfortably unified such that any unification might only work for their users by once again separating out the operational parts. We foresee that such practicalities would continue to require differing modes of operation and rules as well as different personnel.
Indeed, there are possibly some safeguards in their separation as where a valuer is appointed by the Court but any appeal against the valuation is to be heard by the Tribunal (as is to be the case for agricultural tenancy relinquishment valuations under the Land Reform (Scotland) Act 2016). If the bodies were unified, the new body would be hearing an appeal against the valuation of a valuer it had appointed.

On one point in the way the paper is expressed, there is a jeopardy to the Land Court in the Government seeing its role as being “the protector of tenant’s rights” when its role must surely be to apply the law as it is to the cases put to it, upholding the rights of all parties as it determines issues. In practice, we think the Land Court does strive to do that so that all who need it can feel it is impartial.

The Need for Rural Valuation Expertise - Were the two fora to be amalgamated, there would need to be more specific inclusion of rural valuation expertise. Accordingly, we ask that the requirement under s.2A(b) of the Lands Tribunal Act 1949 for the valuer members of the Tribunal to be appointed after consultations with the Chairman of the Scottish Branch of the RICS be broadened to require consultation with the President of the Scottish Agricultural Arbiters and Valuers Association (SAAVA, an Arbitral Appointments Referee) to ensure that the body includes members with a good knowledge of rural and agricultural law, practice, valuation and issues, which would be well outside the experience and expertise of the majority of surveyors. While many SAAVA members will also be RICS members, they now qualify in
their rural specialism as Fellows of the Central Association of Agricultural Valuers in its demanding examinations held each year in Scotland.

The valuation skills identified in Paragraph 22 of the paper are ones better met through the Land Court than the Lands Tribunal. Indeed, as we suggest below, these would be better and more proportionately met by use of arbitration under the Arbitration (Scotland) Act 2010.

Whether that were done independently or under the aegis of the Land Court, that would more readily deploy expert skills in a timely, cost-effective and proportionate way than a reference to the Lands Tribunal.

In this, we also recognise the accumulated expertise and specialism of the Lands Tribunal in handling issues where land or rights in land are taken under statutory authority, as by compulsory purchase. This is an area of work which, while very often arising in the countryside, can be seen as a separate discipline in its own right, with its principles and
legislation, that is apart from the work of the Land Court. Its wider work in valuation as for taxation, rating (from which agriculture is exempt) and now the Electronic Communications Code might arise anywhere, urban or rural, and turn on the evidence and arguments put.

As Paragraph 51 observes, the Tribunal cases can require “an in-depth knowledge of ... matters which Land Court members do not possess”.

Building up the Land Court – We suggest that a continuing independent Land Court can have both an enlarged role and a greater diversity of means to deliver its function. As the agricultural and rural economy diversifies with economic pressure and opportunity, often as a part of continuing farms,so we can see merit in considering whether the Land Court’s role should follow that into such areas as renewable energy.(Paragraph 46) and the agreements associated with it. We are not clear as to what might be in mind in the reference (also Paragraph 46) to greenbelt issues save where this would replace the work of the existing development control regime which might better remain with those structures already holding expertise in it.

That potential for broadening the Court’s work also applies to the work under the statutory provisions mentioned at paragraphs 48 and 49.

Not only might that reflect new economic realities but as the agricultural tenancy sector has reduced in size, this might help sustain the relevant expertise with a volume of cognate work.

Just as Electronic Communications Code work was recently moved from the Sheriff Court to the Lands Tribunal to enable a body of expertise to develop so we see potential merit in the argument of Paragraph 50 concerning “right to roam” work moving to the Land Court. In principle, it seems right that better and more consistent judgments are likely to be made by a forum that has had the benefit of considering a volume of such cases. That in turn can help parties to see what the outcome of an issue might be and so shape their arguments and evidence more pertinently or be able to refrain from pursuing forlorn prospects.

As Paragraph 51 argues, the more specialist rural Land Court might be a more natural home than the Lands Tribunal for many of the issues under the growing volume of land reform legislation.

More Answers - However, we also see the formal procedures of the Land Court as excessive for many of the lower value cases that can arise, thinking much better use could be made of the various Alternative Dispute Resolution techniques including arbitration, taking advantage of the framework now provided by the Arbitration (Scotland) Act 2010 – were it applied to these statutory issues - with the commitment of its founding principles “to resolve disputes fairly,
impartially and without unnecessary delay or expense” (s.1(a)).

We can see that the Land Court could (as we think it already can and, if not, should be given the powers to) choose to deploy an arbitrator in a particular case or use another form of dispute resolution. Equally, repealing the ability to appeal from an arbitration award to the Land Court would assist in making such routes more attractive as they could then be final and binding.

The practical point here can be illustrated by the business valuation issue of a farm rent review. It is quite remarkable that, since 2003 when farm rent reviews were made referable to the Land Court, only three reviews have ever reached a full hearing and then each is understood to have cost hundreds of thousands of pounds, massively disproportionate to the issues at stake. From experience elsewhere, it seems that that represents many genuine disputes and differences not being well resolved for fear of expenses. The professional skills of valuer arbitrators could be an asset to the structure of the Land Court and assist the agricultural holdings sector in providing a remedy where none is currently found.

We have done much to explore the opportunities to use arbitration proactively in such matters – see for example our publication Appropriate Arbitration – and see it as one way of answering the Land Court’s own closing plea in its decision in one of those three cases, Capital Investment Corporation of Montreal Limited v Elliot:
“If greater speed, simplicity and economy are going to be achieved in the future – and we believe they can be – close attention will have to be paid to the guidance which now exists as to what evidence is relevant and what is not. It is also for consideration whether matters have to be explored in as much detail as they were in this case. To use what is
perhaps an improbable image, a lighter touch with a broader brush might serve equally well.”

The Court and Expenses - That control of expenses could be on grounds of proportionality as with an agricultural tenancy rent review such as Ross v Campbell, in which the sum at issue was small but clearly important to the parties who were understood to have incurred such expenses as to be a real jeopardy to the losing party. In itself, that is a deterrent to seeking the remedy of the Court.

Some of that might also be addressed by a greater practical control over procedure. The Court was clearly uncomfortable when it reflected on the laboured review in Capital Investment Corporation of Montreal Limited v Elliot of aspects of the case: “notwithstanding what was said by the Lord Justice-Clerk in Morrison-Low (at para [65]) about the budgetary approach being a “method of last resort”, a great deal of evidence to do with hypothetical budgets was also led. It added significantly to the length and cost of the case without proportionate benefit.”

Again, the Arbitration (Scotland) Act 2010 would, if applied to statutory valuations under the Agricultural Holdings (Scotland) Act 1991, give an arbitrator appointed by the Court or the parties power to focus on the effective issues.
The Lands Tribunal for Scotland – Again, we think that there is the potential for useful reform of the processes of a continuing Lands Tribunal. It is commonly said by practitioners that an issue has to be worth several hundred thousand pounds for it to be rational to be taken to the Tribunal. Especially with the increasing practical problems over compulsory purchase and compensation, that position is denying access to justice and fair treatment to many when facing an acquirer’s power wielded under statute.

Procedure - As to procedure, developing the ability to offer simplified processes and written representations could offer effective access to a remedy where the re is a good case and, with such a practical discipline, so encourage better behaviour by all parties. The full formal procedures of the Tribunal are disproportionate to many lesser cases which are, nonetheless, of great importance to the people affected.

It might also be that, in the same vein and as suggested for the Land Court, greater recognition of alternative dispute resolution procedures could assist.

Expenses - As the paper identifies, expenses are also an issue, on grounds of both proportionality and “inequality of arms”.

It might be that expenses should not ordinarily be awarded in cases felt by their nature to merit the use of a simplified procedure.

Most compulsory purchase or acquisition of rights over property is by the state or by large companies authorised by the state (including arms of multinational companies such as some utilities and Electronic Communications Code operators). They can call on a level of resource that can rarely be matched by a landholder for whom taking a case to the Tribunal is a major endeavour and risk. Where cases concern the exercise of statutory powers (such as compulsory
powers or the securing of Code rights) over private property, the owner’s reasonable actions in defending his interest should, by rebuttable default, lie at the charge of the would-be acquirer.

More generally, the Tribunal might be invited, as can an arbitrator under the 2010 Act, to consider what expenses are proportionate to the case with the possibility of initially setting a cap on what might be awarded or excluding superfluous elements.

We did not find the paper to be helpful on the practical effects of the distinction between a court and a tribunal. If it is really the powers that are reviewed in Paragraphs 28 and 29, then it might be that identifying it as a court might be more apt. The more ability and discretion that a forum has to manage matters before it, the more it might manage them well. In reality, little would turn on that for the vast majority of cases. However, we would not want this to encourage further formality when the subjects of both bodies require practicality.

If the question here is whether the Lands Tribunal should be merged into the Land Court or vice versa, then we sense that the balance of argument might be for the Tribunal to become part of the Court but we again advise that we might not be adequately briefed on the ramifications of this.

Were this the outcome, then it would seem reasonable for it to acquire more functions as we have suggested above that the continuing independent bodies but again on reasoned topic-by-topic basis.

With our comments above, we have no objection to the suggestions in the paper being considered more seriously for this.

With the past use of sheriff principals in such cases, we see this as pragmatic matter to be resolved by the relevant President, with the approach here being one option, perhaps the first option, subject to the circumstances and issues of the case in hand. It should perhaps not be the only option.

With the practical points made in the paper that such a requirement limits the pool of potential appointees while there is a full opportunity for a party to be heard in Gaelic, we consider this should be desirable but not mandatory.

If this were retained and the bodies were merged, it is presumed that, with practical background to this, there would then really have to be a second requirement that the Gaelic speaker should be someone familiar with rural conditions rather than being someone who happened to have sufficient Gaelic to qualify for this but whose experience was elsewhere..

Yes, there is the simple point that the Tribunal should have the discretion to award as it thinks right.

Having commented more generally in answering Question 1 on the merits of the Court having greater discretion over expenses, we consider that the Court should have the discretion to be able to limit the award of expenses as it deems fit, keeping matters proportionate as we have urged above. It might be best if the likely exercise of that power were indicated early in the proceedings as well as guidance notes to assist the parties.

That principle then applies to rural payments appeal cases where the introduction of powers (as in arbitration) to cap or limit expenses, perhaps save as subject to the behaviour of parties would serve to level the playing field between individual farmer and the state.