Financial guidelines for supporting the management of Sites of Special Scientific Interest Natura 2000 sites
Section 5: Dispute resolution
5.1 Dispute resolution arrangements will require to be invoked when SNH and the land manager do not agree about matters such as:
whether the land manager is entitled to compensation in the form of a management agreement;
the terms or conditions of a compensatory management agreement offered by SNH, or the amount payable under the agreement;
the basis on which compensation, if payable, has been calculated (for example whether income foregone or loss in capital value should be used);
whether SNH should reasonably have offered a voluntary management agreement, or should have offered to lease or buy land, in the situation where the established management of the site had become uneconomic and consent cannot be given to an alternative management regime; or
whether SNH is correct in asking ministers to make an LMO, or whether the amounts payable under such an order are appropriate.
Types of dispute resolution
5.2 Without prejudice to the rights conferred by the 2004 Act, it is the hope of the Scottish Ministers that, in the event of any dispute, both SNH and land managers will seek, wherever possible, to resolve matters through private negotiation. It is likely to be in the interests of all parties to thoroughly explore the scope for a negotiated settlement before resorting to the courts.
5.3 The Scottish Ministers would also encourage both SNH and land managers to consider whether other dispute resolution mechanisms might prove effective in resolving disputes. The appropriateness of alternative mechanisms will depend on the specific nature of the matter in dispute but are likely to include:
5.4 In general it is anticipated that only the most intractable or legally-complex disputes should require to come before the courts and that, in the normal course of business, most disputes should be capable of resolution before the need for court action arises.
Statutory and non-statutory provision for dispute resolution
5.5 Statutory provision for appeals to the Scottish Land Court, in relation to ORC-related compensatory management agreements covering SSSI land, has been made in section 18 of the 2004 Act. This provision covers situations in which a land manager is aggrieved by a decision not to enter into a management agreement under section 16(9) of the 2004 Act, or by the terms and conditions of such an agreement.
5.6 Non-statutory arrangements for dispute resolution will require to be invoked in other cases, for example where disagreements arise in relation to voluntary management agreements and schemes such as those available under Natural Care; in connection with NCO-related compensatory management agreements; or where disputes arise in relation to the reimbursement of professional fees. These arrangements are likely to include options such as mediation, expert determination and arbitration, as well as SNH's own formal Complaints Procedure, details of which are available on request from SNH (see paragraph C4 in Annex C).
5.7 Non-statutory arrangements will also apply where a land manager believes that SNH should reasonably have offered to lease or buy all or part of a site which can no longer be managed on an economically-viable basis. It is however open to the Scottish Land Court to consider the appropriateness of lease or purchase, alongside a range of other potential options, in cases where the land manager is aggrieved by a decision not to give consent to operations which are necessary to a new and economically-viable management regime. This situation is dealt with in more detail in paragraphs 3.32 to 3.34 of Section 3.
5.8 Statutory provision has been made in relation to LMOs. A land manager can make representations to the Scottish Ministers before the order is made, under paragraph 3(c) of Schedule 3 to the 2004 Act, and can subsequently appeal to the Scottish Land Court by virtue of section 34 of the 2004 Act.
SNH decisions and effect on deadlines for appeal
5.9 Under section 18 of the 2004 Act, appeals to the Scottish Land Court against a decision by SNH to refuse, modify, or revoke a consent, or to impose restrictive conditions, must be made within 28 days of the date on which SNH gave notice of its decision. Appeals against a decision not to enter into a management agreement, or in relation to the terms and conditions of an agreement must, similarly, be initiated within 28 days of the date on which the land manager is advised of the refusal, or of the date of any formal offer setting out the disputed terms and conditions.
5.10 It is important however that these strict statutory deadlines are not interpreted in a manner which forces a land manager into appealing to the Scottish Land Court prematurely. It will normally be in the interests of all parties to ensure that matters are only brought before the Court once it is clear that a mutually-acceptable solution cannot be produced by negotiation, internal review or an alternative method of dispute resolution, such as mediation or expert determination. Adequate time needs to be allowed, within the overall context established by section 18, for such options to be properly explored following any initial decision or offer.
5.11 It is particularly important that an applicant who is willing to work with SNH in good faith to seek a mutually-acceptable solution does not inadvertently run out of time to lodge an appeal, in the event that negotiations or alternative methods of dispute resolution prove unsuccessful.
5.12 In order to ensure clarity in such situations, the following paragraphs set out details of the administrative procedures which will be followed by SNH when dealing with applications for consent and with situations in which compensatory management agreements are offered. The fundamental principle to be applied is that SNH will make it clear to land managers whether or not a decision or offer is one which will trigger the start of the 28 day period.
5.13 Except in the special circumstances noted in paragraph 5.21, all parties should therefore work on the basis that the 28 day period, within which an appeal to the Court has to be lodged, will only commence once SNH has clearly indicated that it has reached a final decision or has made a formal offer.
5.14 A final decision in this sense is one which, for the purposes of section 18 of the 2004 Act, represents the definitive and formal position of SNH on the matter. In making a final decision, SNH is, in effect, indicating that it sees no further scope for negotiation or for the use of alternative methods of dispute resolution. This may, for example, be because negotiations or dispute resolution processes have reached a conclusion or because they have irretrievably broken down. Similarly, a decision which follows the outcome of a complaint under SNH's formal Complaints Procedure is likely to be a final decision for the purposes of section 18.
5.15 A formal offer, by the same token, is an offer of a management agreement which, for the purposes of section 18, represents SNH's final decision in relation to the terms and conditions of the agreement it is prepared to offer. Again the formal offer may represent the outcome of a process of negotiation or dispute resolution, or it may be SNH's final offer in the event that such processes have failed to produce any basis for agreement.
5.16 In all cases SNH will, for the avoidance of any doubt, make it clear to the land manager whether or not any particular decision or offer is one which should be regarded as initiating the 28 day period for appeal.
5.17 Where SNH advises a land manager that it has made either a final decision or a formal offer, a land manager will, in effect, only be able to reverse that decision, or have the terms of the offer varied, by appealing to the Scottish Land Court under section 18 of the 2004 Act.
5.18 It is to be hoped that all parties will be prepared to seek a mutually-agreed solution to any dispute. However, SNH's willingness to negotiate, to employ alternative methods of dispute resolution, or to deal with a formal complaint, in no way restricts the land manager's statutory right to appeal to the Scottish Land Court under section 18 of the 2004 Act. The administrative arrangements set out above have been designed to safeguard the interests of land managers and to provide the flexibility to allow mutually-acceptable solutions to be explored. They do not prevent a land manager from appealing to the Scottish Land Court as soon as it is clear that a legal basis for such an appeal exists - irrespective of whether SNH has, at that particular point, made a final decision or formal offer.
5.19 SNH also operates a formal Complaints Procedure, details of which are available from the customer care section of the SNH website (at: www.snh.gov.uk/about/default.asp) or from the address given in paragraph C4 of Annex C. Complaints under this internal procedure will be considered in connection with initial or interim decisions or offers, or in relation to the effectiveness (or otherwise) of decision-making processes, ongoing negotiations or the general conduct of business by SNH. However, as a general rule, the most appropriate mechanism for appealing against a final decision or formal offer, in the sense in which these terms are defined in paragraphs 5.14 and 5.15, is to appeal to the Scottish Land Court under section 18 of the 2004 Act.
Effect of sections 18(3) and 18(4) - The 4 month rule
5.20 Special arrangements have been made in sections 18(3) and 18(4) of the 2004 Act to cope with situations in which SNH fails to act on an application for consent or fails to offer an agreement. In such cases, SNH will at the end of the 4 month period (unless an extension has been agreed in writing), be deemed to have made a definitive decision, by default, not to give consent or not to offer an agreement. This arrangement is intended to act as a failsafe and to protect the interests of land managers, by ensuring that inaction or delay on the part of SNH does not unreasonably prevent matters being brought before the Scottish Land Court.
5.21 Where SNH has not taken action within the 4 month period, land managers need to be aware that the effect of sections 18(3) and 18(4) means that an appeal to the Scottish Land Court must be lodged within 28 days of the expiry of the 4 month period - unless that period has been explicitly extended. Where negotiations or other dispute resolution processes are still in progress at that point and the land manager is content to continue, it is important that an extension to the 4 month period is agreed in writing with SNH. If this is not done, and the negotiations or other processes subsequently break down, the land manager could, on a strict interpretation of section 18, be held to have failed to appeal to the Scottish Land Court within the necessary 28 days.
5.22 As a result, in cases where a solution is being actively sought and it appears that the 4 month period will be exceeded, SNH will, as a matter of course, ask land managers to agree in writing to extend the 4 month period. In the event that negotiations are unsuccessful, the land manager will still be able to appeal to the Court within 28 days of the end of the extended period, or within 28 days of any decision or offer made by SNH. Where a decision or offer is made, the rules established above in paragraphs 5.9 to 5.19 will determine when the 28 day period should be considered to have begun, provided the 4 month period, or any extension, has not expired.
5.23 Where it does not believe that there is any value in extending the 4 month period and it is not in a position to make a decision or to offer an agreement, SNH will, again as a matter of good administrative practice, write to land managers in advance of the expiry of the period, alerting them to the expiry date and to the fact that any appeal to Court must be lodged within 28 days.
5.24 In the event that SNH fails to offer a compensatory management agreement and the land manager believes that it should have done so, it is open to the land manager to write to SNH, within the 4 month period (or any extended period) requesting that SNH makes such an offer. In responding to such a request, SNH will make it clear whether or not the response it gives should be treated as a final decision or a formal offer, for the purposes of section 18 of the 2004 Act.
Admissibility of appeals
5.25 It is for the Scottish Land Court to decide on the admissibility of any appeal and to determine whether, having taken its own rules, the requirements of the 2004 Act, this guidance and other relevant factors into account, it is prepared to hear a particular case.
5.26 In preparing any appeal, it is important that an aggrieved party has regard to the rules and requirements of the Court. Guidance is available via the Court's website at: www.scottish-land-court.org.uk. Further information may be sought from the Principal Clerk to the Court at the address provided in paragraph C3 of Annex C.
Land Management Orders
5.27 Representations to the Scottish Ministers in relation to a proposal from SNH for an LMO must be made within 3 months of the date on which notice of the proposal was given to interested parties, or within any longer period allowed for under paragraph 5 of schedule 3 to the 2004 Act.
5.28 A formal appeal to the Scottish Land Court against a decision by the Scottish Ministers to make an LMO must, by virtue of section 34(2) of the 2004 Act, be lodged within 28 days of the date on which the Scottish Ministers gave notice of their decision to the appellant.
5.29 In both cases the deadlines are strict and, unlike the situation described in paragraphs 5.9 to 5.19 above, the option to retain flexibility and to allow for negotiation or alternative dispute resolution is limited.
5.30 It is however open to the land manager and SNH to seek to negotiate a settlement during the 3 month period before the Scottish Ministers decide whether or not to make the LMO. If such an agreement can be reached before the LMO is made, it is possible for SNH, under paragraph 10 of schedule 3, to formally withdraw the LMO proposal.
Role of the Scottish Land Court
5.31 The 2004 Act provides that the Scottish Land Court may determine an appeal on its merits, rather than simply by way of judicial review. This empowers the Court to consider the facts of the case. It is not confined simply to considering whether, for example, SNH failed to follow proper procedure or acted unreasonably.
5.32 Nonetheless, it should be remembered that, as a court of law, the Scottish Land Court deals with disputes between parties on the basis of the information presented to it. The Court does not function as an inquiry, and will not actively seek out information which a party has failed to present. It is therefore important for aggrieved parties to ensure that all of the relevant facts are brought to the attention of the Court when mounting an appeal.