Scottish Land Court and the Lands Tribunal for Scotland: consultation analysis

Question 3

If there is a decision to merge the Scottish Land Court and the Lands Tribunal for Scotland, do you consider that the merged body should take on more functions than those separately undertaken by the two bodies at present?

Yes	No	Not answered
20	14	24
34.5%	24.1%	41.4%

A majority (58.8%) of those who answered this question considered that, if there was an amalgamation, the resultant body should take on more functions.

Those that consider that an expanded Land Court should take on extra functions

Paragraph 50 of the consultation read:

"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."

Six of the respondents agreed that cases under section 28 of the Land Reform (Scotland) Act 2003 would be suitable to be transferred to an expanded Land Court. James McPherson and ScotWays pointed out that the provisions of section 28 were not about a "right to roam" but about a "right to take responsible access".

Malcolm Combe stated that "the section 28 "declarator" scheme to determine excluded land and responsible conduct has struck me as something that was ripe for reform for a little while". Kieran Buxton concurred with this view.

ScotWays considered that under the present arrangements in the sheriff court, there is little consistency in judgments. This is because cases are fairly rare and it is not possible for sheriffs to build up expertise in this matter. It stated that:

"ScotWays considers there would be benefit in transferring the jurisdiction in matters of access under the Land Reform (Scotland) Act 2003 from the sheriff court to a specialised body. Whilst statutory access rights under section 28 are specifically mentioned by the consultation paper, section 14 should also be under consideration as should the provisions relating to public rights of way. The purpose of such a transfer would be to ensure that there was appropriate jurisdictional expertise and consistency of decision making."

Scottish Land & Estates agreed that section 28 was suitable to move to the jurisdiction of an extended Land Court and also suggested section 14 should be considered:

"We would also suggest that the government consider the inclusion of appeals under section 14 of the Act to be transferred to the new body. Notices served under section 14 of the Act require a landowner to remove any deterrent or obstruction to access, and appeals are made to the sheriff."

James McPherson considered that, under the provisions of section 28, a sheriff can make a declaration that the access rights have not been exercised responsibly but no more. He considered that if the Land Court took on the function of dealing with section 28 cases, it could open up the possibility of allowing a litigant "to make a single application to a court to include a declaration that the access rights have not been exercised responsibly and for damages, where relevant, to the Land Court - the one stop shop".

Paragraph 48 of the consultation suggested that an extended Land Court might take on responsibility for the March Dykes Act 1661, the March Dykes Act 1669, and the Runrig Lands Act 1695 and the Division of Commonties Act 1695. Six of the respondents agreed with this suggestion including the Faculty, the Law Society, the Scottish Crofting Association, and the Agricultural Law Association.

Paragraph 49 of the consultation suggested that the sheriff's role in the "right to buy" provisions of the following the Land Reform (Scotland) Act 2003: sections 60A(4), 61, 91, 97V, and the Land Reform (Scotland) Act 2016, section 69 might also transfer to an expanded Land Court. One of the respondents wrote of this and section 28 of the 2003 Act:

"I also agree with the proposals at paragraphs 49 and 50 of the Consultation Paper. At present, the splitting up of appeals under these Acts to three separate courts/tribunals (the Land Court, the Lands Tribunal, the sheriff [court]) makes no practical sense to me. I believe this would be a useful reform."

The Law Society also agreed with the section 49 suggestions.

Six of those who responded to the consultation considered that it might be appropriate for an expanded Land Court to take on the functions relating to environmental law. Professor Colin Reid noted that the Land Court and the Lands Tribunal "have a range of stray jurisdictions in the broadly environmental field". He stopped short of suggesting an environmental court but noted that appellate and other functions in this area are fragmented and incoherent. He suggested that "there is a need for a thorough review and rationalisation of where regulatory appeals and other disputes are heard across the land and environmental field, as opposed to the current seemingly haphazard distribution across the Land Court, Lands Tribunal, DPEA, sheriff court, Court of Session, and Scottish Ministers".

Others were more definite about the need for an environmental court and would advocate that an expanded Land Court take on the functions of an environmental court. The ERCS recognised that the functions of an environmental court could be quite diverse and proposed a three step staged introduction. It suggested:

"In order to manage the transition and allow for review and reflection at each stage, ERCS supports a phased approach to transferring appeal functions to the merged court:

1. starting as soon as possible with appeals currently heard in the sheriff court against decisions by (a) environmental regulators and (b) access authorities (under Part I of the Land Reform (Scotland) Act 2003),

2. as a second step, transferring appeals currently made to the Scottish Ministers against decisions by environmental regulators and

3. as a third step, transferring appeals currently made to the Scottish Ministers against land-use planning decisions too."

It then went on to state:

"ERCS would in due course expect judicial review of environmental and planning decisions to be transferred from the Court of Session to the merged court, in order to improve access to justice in environmental matters and bring Scotland finally into compliance with international law."

Professor J Campbell Gemmell noted that the "overall landscape of appeals relating to land and the environment in Scotland is less simple, logical, coherent and consistent than it might be". The professor considered that reform for a post Brexit world was necessary. He endorsed the approach suggested by ERCS.

However, Scottish Land & Estates did not agree in terms of planning appeals:

"We would not favour planning law matters being brought within the scope of either the Court, Tribunal or an amalgamated body. Such a transfer would be disruptive and go against the integrity of the planning system."

The Agricultural Law Association took a same view of planning appeals particularly in relation to wind-farm and green-belt developments.

The Law Society made a similar point about inconsistency and fragmentation in the appeal mechanisms for environmental matters in Scotland as Professor Campbell Gemmell, "for example, abatement notices served under the Environmental Protection Act 1990 are considered by the sheriff court but planning appeals by the Scottish Ministers".

The Law Society also noted that in terms of environmental matters, the Land Court currently has jurisdiction to deal with wildlife matters under Nature Conservation (Scotland) Act 2004, and appeals in relation to SEPA's enforcement measures are also dealt with by the Land Court, in terms of the Environmental Regulation (Enforcement Measures) (Scotland) Order 2015. Based on this it went on to suggest:

"In light of existing jurisdiction in these matters, there may be scope for the remit of an amalgamated body to be widened to deal with other environmental matters, such as littering and matters arising under the Environmental Protection Act 1990."

The Scottish Crofting Association and the Scottish Tenant Farmers Association responses were more general on environmental matters, the former saying that the merged body "should take on environmental judgements" and the latter saying that the Land Court will in the future "be faced with disputes over environmental and conservation policies and objectives".

The Law Society and Scottish Land & Estates both raised the possibility of applications by an executor under 16(3) of the Succession (Scotland) Act 1964 to extend the period of 24-months for transfer of crofting tenancies coming into the scope of the Land Court.

Finally, there were some rather less specific suggestions. One respondent suggested that if the Land Court were to be merged with the Lands Tribunal, there would be scope to tidy and include all proceedings which require a valuation input. Another suggestion, from the Scottish Crofting Association, was that the merged body might deal with all things effecting crofting and land.

Those that consider that an expanded Land Court should not take on extra functions

The Faculty was opposed to the merger of the Land Court and the Lands Tribunal and considered that if it should happen, the resultant body should not take on only limited extra functions. Those limited extra functions were responsibility for the March Dykes Act 1661, the March Dykes Act 1669, the Runrig Lands Act 1695; and the Division of Commonties Act 1695. Its preference was that this should be done by the Land Court in its existing form. It could also see benefit in the transfer of right-to-buy cases to an expanded Land Court as it considered that "the present system of summary application in the sheriff court lacks clarity in terms of procedure, and the mechanism of appeal is uncertain".

Both the Agricultural Law Association and the Faculty would in particular resist the transfer of wind-farm applications or applications for development on green belt land to the Land Court, as suggested at paragraph 46 of the Consultation Paper.

The Sheriffs' Association was concerned about the extra functions suggested in paragraphs 46 to 51 of the consultation paper. It noted that many statutory appeals in licensing and regulatory matters are dealt with in the sheriff court by way of summary application procedure. The Association argued that summary application "is a well-established and important sheriff court procedure, used for a wide variety of statutory and common law applications, new and old". It concluded by stating that the "view of the Association is that the jurisdiction of the sheriff court in these matters is of value to parties to such proceedings and there is no sound basis to remove that jurisdiction".

Another respondent also considered that the judiciary is the principal structure for resolving legal disputes and that the extra functions suggested in the consultation should not be given to the Land Court. This particular respondent took an opposite view from most of the other respondents in regards to its reputation.

"There is a clear, if not widely publicly expressed, consensus among agricultural specialists and lawyers that the Land Court is not fit for purpose. It follows that the role of the Land Court should only be expanded if a clear cost benefit can be demonstrated. Otherwise functions should be retained by the 'conventional' legal system."

Finally, Inksters Solicitors considered "that the taking on of additional functions by the amalgamated body may be seen by the crofting communities as diluting the SLC's current focus".

No preference

Some of the respondents indicated that they had no preference on the subject of an expanded Land Court taking on extra functions. However, they did express some views that are relevant.

SEPA considered that the Scottish Government should consider whether the Land Court whether merged with the Lands Tribunal or not should take on a specialist role in the determination of certain appeals arising from decisions of the proposed new environmental governance body, Environmental Standards Scotland, as set out in the UK Withdrawal from the European Union (Continuity) (Scotland) Bill.

Lord McGhie considered that there are many issues relating to use or management of land where either the Land Court or the Lands Tribunal would be better placed to exercise jurisdiction than the sheriff court.

The Senators of the Court of Justice considered that the question of an expanded Land Court taking on extra functions to be a political decision. They set out pros and cons:

"On the one hand, it might be useful for the new court to adjudicate on other types of land dispute, such as (a) environmental questions connected with wind power; and (b) issues arising from the 'right to buy' and the 'right to roam'. On the other hand, amalgamation itself will be a tricky enterprise. It might be preferable to allow the new court to settle into its role before extending its jurisdiction."