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

Chapter 4: The case for unification

36. The integration of the Lands Tribunal for Scotland and the Scottish Land Court is considered desirable by its proponents on grounds of structural coherence, efficiency, and the delivery of a better service to litigants in meeting the challenges of future developments.

Structural coherence

37. It has been noted in the previous chapter that there are examples of the Lands Tribunal for Scotland and Scottish Land Court both having roles to play under the same piece of legislation. A number of points may be made in relation to these situations.

38. Firstly, whereas there is some rationale behind the allocation of their respective roles, it can be argued that the distinction between the two bodies is eroded by the fact that, at present, they have the same judicial head and are not, therefore, entirely separate and distinct. However, as the positions of Chair of the Land Court and President of Lands Tribunal are not required by statute to be the same person, this could change in the future.

39. Secondly, as has been noted above, there is presently a situation where the Lands Tribunal, under section 38 of the Agricultural Holdings (Scotland) Act 2003, is required to refer questions of law to the Land Court (unless it considers it inappropriate so to do) which is, in effect, a reference to its own President, but sitting in a different capacity although, as noted in the paragraph above, the positions of Chair and President are not required by law to be the same person.

40. Thirdly, although there is a rationale for the Lands Tribunal to deal with matters of valuation and the Land Court to deal with questions of law (within its jurisdiction), the Land Court, as has been seen, also engages in valuation in the exercise of some of its jurisdictions. It raises the question as to whether the valuation functions of each body would not be better discharged by access to the expertise available in both bodies.

41. It is possible that these anomalies would be resolved and the interests of the public would be better served by the creation of a “one-stop shop” giving access to the whole range of remedies presently divided between the two jurisdictions.

Efficiency

42. Both bodies presently carry out their duties efficiently, in as much as cases are generally disposed of on reasonable timescales and at little expense to litigants so far as Lands Tribunal and Land Court fees are concerned. However, the situation of having two small staffs working side by side, with similarities in aspects of what they do and already joined at the head by a single judicial office holder is one which calls for consideration to be given as to whether a better service can be delivered to users by their unification.

43. Although unification of the two bodies might lead to financial savings over time, the main gain in terms of efficiency would be expected to come from the ability to deploy personnel flexibly so that every case is dealt with by people with the appropriate skills and expertise. Even though that result can be achieved to some extent under the present arrangements as each body has the power to recruit appropriate expert assistance when required, (a) the appointment of such experts involves extra administrative work, and (b) experts so appointed are not full members of the Court or Tribunal conducting the hearing. These ad hoc arrangements therefore lack the advantages of fully collegiate decision-making. Unification would make available the entire range of skills in every case and has the potential to lead to better decision-making.

44. As well as allowing the specialist members of both bodies to be available across the range of both jurisdictions, unification would also allow the deployment of legal members in the same way, something that is envisaged would happen more frequently than the deployment of surveyors on Land Court type cases and agriculturalists on Lands Tribunal type cases. This would lead to greater efficiency in that the lawyers can be deployed wherever the workload is heaviest at any particular time.

The delivery of a better service to litigants

45. Ultimately both bodies exist in order to serve the public and proponents of unification strongly believe that the public would be better served by the creation of a single body to deal with the range of issues currently dealt with either by the Land Court or the Lands Tribunal.

The opportunity for additional functions to be bestowed upon the court

46. If an amalgamated body is created, then the opportunity arises to consider whether the new body can or should take on additional functions beyond those currently performed by the two existing bodies. For example the Land Court has extensive experience of dealing with cases that touch upon environmental justice e.g. wind-farm applications or the development of greenbelt land. It may be worth exploring if an expanded jurisdiction to provide a specialist forum for particular types of case is desirable.

47. The present proposal prompts the question whether there is further scope for simplifying and rendering more coherent the way land issues are dealt with in Scotland’s courts and tribunals. Whilst the Scottish Government, having consulted on the matter, recently decided against the creation of a specialist Environmental Court in Scotland^[59], there are land issues in respect of which jurisdictions presently held by the sheriff court which might equally appropriately be dealt with by an expanded Land Court.

48. The following, perhaps more obscure, jurisdictions presently held by the sheriff court might, arguably, be more appropriately placed within the jurisdiction of an expanded Land Court, if only as a tidying up exercise:

• the March Dykes Act 1661;
• the March Dykes Act 1669;
• the Runrig Lands Act 1695; and
• the Division of Commonties Act 1695.

The March Dykes Acts are still resorted to from time to time but the Runrig and Division of Commonties Acts are virtually, if not entirely, moribund. Nevertheless, they may be suitable jurisdictions for the Land Court to exercise, should the need arise.

49. A much more significant reallocation of jurisdictions would be to transfer the sheriff’s role in the “right to buy” provisions of the following Acts to the Land Court:

• the Land Reform (Scotland) Act 2003: sections 60A(4), 61, 91, 97V; and
• the Land Reform (Scotland) Act 2016: section 69.

The aim would be to bring greater cohesion to the presently diffuse appeal provisions which accompany these rights (sheriff court/Land Court/Lands Tribunal). The expanded Land Court could handle all referrals of questions and appeals, whether on questions of law or valuation.

50. A further area for consideration of a transfer of jurisdiction from the sheriff court to the Land Court might be “right to roam” cases under section 28 of the Land Reform (Scotland) Act 2003. The present arrangements mean that individual sheriffs are unlikely to gain extensive expertise in the determination of such case and there is, consequently, a risk of lack of consistency of approach.

51. More generally it might be argued that a dedicated Land Court, rather than a generalist sheriff court, is the more appropriate forum for the litigation generated by the substantial body of land reform legislation introduced by the Scottish Parliament.