The future of the Land Court and the Lands Tribunal: consultation

Chapter 3: Jurisdictions of the Land Court and Lands Tribunal

The Land Court

21. The primary jurisdiction of the Scottish Land Court is to deal with questions between the landlords and tenants of agricultural land, including crofts under the Crofters (Scotland) Act 1993, the Crofting Reform etc. Act 2007 and the Crofting Reform (Scotland) Act 2010, smallholdings under the Crofters Holdings (Scotland) Act 1886 and tenanted farms under the Agricultural Holdings (Scotland) Acts 1991 and 2003. It also has a number of other jurisdictions, including the determination of:

• appeals from decisions of the Crofting Commission under section 52A of the Crofters (Scotland) Act 1993;
• references made to it by the Crofting Commission under section 53 of the Crofters (Scotland) Act 1993;
• questions under the Crofting Community Right to Buy provisions of Part 3 of the Land Reform (Scotland) Act 2003;
• challenges to entries in the Crofting Register under the Crofting Reform (Scotland) Act 2010;
• appeals against certain decisions of Scottish Natural Heritage under the Nature Conservation (Scotland) Act 2004;
• appeals against enforcement measures taken by the Scottish Environmental Protection Agency under the Environmental Regulation (Enforcement Measures) (Scotland) Order 2015; and
• appeals under the Rural Payments (Appeals) (Scotland) Regulations 2015 where farmers or crofters have been subject to a reduction, refusal or recovery of payments made by the Scottish Ministers in relation to subsidy schemes under the Common Agricultural Policy.

22. As a consequence, the Land Court is involved in adjudicating on a very wide range of disputes but of particular note are the areas in which its work is analogous to that of the Lands Tribunal or involves functions which could benefit from the skills available in the Lands Tribunal. These include determination of:

• the value of croft house sites^[19];
• the value of land being resumed from crofting^[20];
• compensation payable to crofters for crofters' improvements^[21];
• compensation payable to landlords of crofts for deterioration of or damage to fixed equipment^[22];
• share in the value of croft land compulsorily acquired by an acquiring authority^[23];
• share in value of trees under joint forestry ventures^[24]:;
• rents of agricultural holdings^[25];
• compensation payable to tenants for improvements on agricultural holdings^[26];
• compensation for disturbance and other heads of claim in relation to agricultural holdings^[27];
• appeals against the valuation of land being acquired by a crofting community body^[28];
• challenges to first registration in the Crofting Register^[29]; and
• croft boundaries^[30] (where mapping and surveying skills available in the Tribunal are of obvious relevance).

The Lands Tribunal

23. The Lands Tribunal also has an extensive range of jurisdictions, including determination of:

• disputed compensation for the compulsory acquisition or loss in value of land under the Land Compensation (Scotland) Act 1963^[31] and, under the Land Compensation (Scotland) Act 1973^[32], for depreciation caused by public works;
• appeals to a Valuation Appeal Committee, relating to valuation for rating of non-domestic premises under the Lands Tribunal Act 1949, which are then remitted to the Lands Tribunal for consideration on one of the statutorily permitted grounds;
• appeals against the decision of a Valuation Appeal Committee not to remit a case, relating to valuation for rating of non-domestic premises under the Lands Tribunal Act 1949, to the Lands Tribunal on one of the statutorily permitted grounds;
• references relating to the accuracy of the Land Register under the Land Registration (Scotland) Act 2012^[33];
• appeals regarding the valuation of land being acquired under Part 2 of the Land Reform (Scotland) Act 2003 (the Community Right to Buy)^[34];
• appeals against valuation of land being acquired under Part 3A of the Land Reform (Scotland) Act 2003 (right to buy abandoned, neglected and detrimental land)^[35];
• determination of questions arising in applications to buy abandoned, neglected and detrimental land^[36]
• appeals against valuation of land being acquired under Part 5 of the Land Reform (Scotland) Act 2016 (right tobuy land to further sustainable development)^[37];
• questions arising under said right to buy land to further sustainable development^[38];
• applications for variation and discharge of land obligations and for determination of the validity, applicability or enforceability of real burdens under the Title Conditions (Scotland) Act 2003^[39]; and
• applications brought under the new Electronic Communications Code contained in Schedule 3A of the Communications Act 2003 (as amended by the Digital Economy Act 2017)^[40].

24. In addition, the Lands Tribunal has many less frequently exercised jurisdictions such as those under:

• the Coal Mining Subsidence Acts 1958 and 1991;
• the Electricity Act 1989;
• the Flood Prevention (Scotland) Act 1961;
• the Leasehold Casualties (Scotland) Act 2001;
• the Long Leases (Scotland) Act 2012; and
• the Taxes Management Act 1970.

25. Finally, the Lands Tribunal also has a jurisdiction as “arbitrator of consent” under section 1(5) of the Lands Tribunal Act 1949^[41] whereby parties to a dispute can agree to submit their differences to the Lands Tribunal for decision.

26. Just as there are areas of the Land Court's work where Lands Tribunal expertise may be valuable, the same applies in relation to the Lands Tribunal's work, where the following areas are identified which would benefit from the skills available in the Land Court:

• appeals against the valuation of land being acquired under the Community Right to Buy^[42], where that land comprises or includes agricultural land;
• assessment of the value of agricultural land for compulsory purchase purposes and of the impact of a compulsory purchase scheme on agricultural operations for injurious affection or severance claims^[43];
• the quantification of farm loss payments under the Land Compensation (Scotland) Act 1973^[44]; and
• some aspects of the discharge of title conditions applications under the Title Conditions (Scotland) Act 2003^[45] and some aspects of the rectification of Land Register cases under the Land Registration (Scotland) Act 2012^[46] involving agricultural land.

Situations in which the Land Court and Lands Tribunal have roles in the same procedure

27. In some instances both the Court and the Tribunal have roles in the same procedure:

• In respect of a tenant of an agricultural holding's right to buy under Part 2 of the Agricultural Holdings (Scotland) Act 2003, section 33(4) provides that if there is no agreement between the parties, a valuer is to be appointed either directly by the Land Court or by someone nominated by the Court. Any appeals against the appointed valuer’s decisions must be made to the Lands Tribunal under section 37 of that Act. If a question of law which may competently be determined by the Land Court arises in the course of such an appeal, section 38 provides that the Lands Tribunal is to refer the question to the Land Court for determination (unless it considers that it is not appropriate so to do).
• This interplay of the two bodies is carried through into section 100 of the Land Reform (Scotland) Act 2016, which amends section 38 of the Agricultural Holdings (Scotland) Act 2003 on the question of what is to happen when the landlord of an agricultural holding fails to comply with an order to remedy a material breach of his obligations and the tenant consequently acquires a right to buy the holding^[47].
• Sections 3B and 3C of the Crofters (Scotland) Act 1993 (as amended) contain similar provisions in relation to the compensation payable to landowners for the creation of new crofts. If no agreement can be reached, it is for the Land Court to appoint a valuer to assess the compensation payable whilst appeals against such a valuer's decision go to the Lands Tribunal^[48].

The respective powers of the Land Court and Lands Tribunal

(i) Power to grant orders

28. A point of difference between the two bodies is the range of powers available to them. The Chair of the Land Court, who has the rank and tenure of a Court of Session judge^[49], has power to punish for contempt of court^[50] and the Land Court itself has a wide range of powers to enforce, in particular, its agricultural holdings jurisdiction. It may grant decrees for interdict (including interim interdict), orders ad factum praestandum and orders for specific implement, restitution, reduction or rectification, removal or ejection, damages or other substitutionary redress and declarator^[51]. There is also provision for remitting cases from the Land Court to the sheriff court or the Court of Session and vice versa^[52].

29. By contrast, the Lands Tribunal's powers are much more circumscribed. It has no power to deal with contempt, nor to grant interdict, nor orders ad factum praestandum, nor for specific implement, removal or ejection, nor to grant declarators, except that it can determine the validity, applicability or enforceability of real burdens^[53]. A power which makes the Lands Tribunal akin to a court is the power to award expenses^[54].

(ii) Power to appoint assessors, etc

30. The Lands Tribunal has a power to employ assessors to sit along with its members on particular cases^[55].

31. The Land Court has power to appoint a person to act as an assessor should the Land Court consider that the assistance of a person specifically qualified by skill or experience is desirable for the better disposal of a matter in dispute^[56].

Appeals

32. The Land Court has fairly extensive appellate functions. By contrast, the Lands Tribunal's appellate function is very restricted, confined as it is to challenges to decisions of the Keeper of the Land Register. As the Keeper's decisions are administrative rather than judicial, or quasi-judicial, it is doubtful whether this can properly be described as an appellate jurisdiction at all.

33. The Lands Tribunal also hears appeals against Valuation Appeal Committee decisions to remit cases to it. But if granted, the Lands Tribunal sits as a first instance decision-making body rather than exercising an appellate function.

34. The Land Court has an internal appeal system whereby decisions taken by single members, sitting as what are called "Divisional Courts", may be appealed to the Full Court^[57]. Although individual members of the Tribunal may, and do, decide cases on their own, the Tribunal has no such internal appeal procedure.

35. Appeals on matters of law from both bodies go to the Court of Session, in the case of the Lands Tribunal, specifically to the Lands Valuation Appeal Court^[58].