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

The consultation seeks views on the proposed amalgamation of the Scottish Land Court and the Lands Tribunal for Scotland and on four administrative issues related to those bodies.

Chapter 5: Arguments against unification

52. Surveyors have always seen a clear distinction between the roles of the two bodies that is reflected in their composition. The Chair/President is at present common to both but otherwise the Lands Tribunal comprises a QC and two chartered surveyors whilst the Land Court consists of a legally qualified Deputy Chair and two agricultural experts. It can be argued that this difference is an important distinction between the two bodies which should be preserved.

53. Others also question whether, in reality, there is any major overlap between the Lands Tribunal and the Land Court. The argument is that it is clear which forum handles what work. The Lands Tribunal website makes it clear that the Land Court and the Lands Tribunal have distinct functions which should not be confused[60]:

“In particular you should note that although our jurisdiction is related to land issues, most disputes about rights to land (for example, disputes over ownership or succession) are dealt with by the ordinary courts: the Sheriff Court or the Court of Session. The Scottish Land Court also has jurisdiction to deal with some land cases. This Court is sometimes confused with the Lands Tribunal. They share the same offices. But the work of the Court is quite distinct. The Land Court deals with cases involving agriculture and is mainly concerned in matters involving landlords and tenants.”

54. It can be argued that following a merger of the two bodies the same Tribunal/Court members would continue to deal with the same matters as they do at present, with little or no crossover, inviting the question, “Where’s the gain?”. For example, many of the high profile Lands Tribunal cases involve an in-depth knowledge of things such as rating, compulsory purchase and a range of valuation matters which Land Court members do not possess. Conversely, both the law relating to agricultural holdings and the law relating to crofting are complex and require specialist knowledge which Lands Tribunal members are unlikely to hold.

55. The Valuation Appeal Committees (VACs) are slated to go into the First-tier Tribunal (FTT) in the Scottish Tribunals in 2022 and work is already underway. They currently remit cases to the Lands Tribunal which are complex, may set a precedent or have a national impact in relation to non-domestic rates. We anticipate that these functions will transfer into the Upper Tribunal and that, in order to utilise their expertise, members of the Lands Tribunal will be authorised, by regulations, to sit on these cases in the Upper Tribunal. This would not impact on the remaining, substantive workload of the Lands Tribunal and its members.

56. Both the Land Court and the Lands Tribunal are regarded by those who use them as very effective with good staff. The core of the Land Court’s functions is centred on farming and crofting. Whilst it is noted that the proposal is for the Lands Tribunal to be incorporated into the Land Court, the amalgamation could well be viewed by the Land Court’s stakeholders as posing a threat to the Court’s identity and focus, particularly if new jurisdictions are also added to its remit.

57. Like the Land Court, the Lands Tribunal is well respected amongst users, who value the way members and staff deal with cases and place great value on its judgments. Some have concerns about whether this level of service and the Lands Tribunal’s whole specialist focus might be compromised by the proposed merger.

58. It could be argued that, as both the Land Court and Lands Tribunal are presently working separately and effectively without major criticism, there is no need for an amalgamation, the implementation of which may have cost implications both in terms of time and resources.

59. The terms and conditions of members would have to be harmonised. A significant discrepancy remains between the salary levels of Lands Tribunal members (higher) and Land Court members (lower) notwithstanding a narrowing of the gap following upon the partial implementation of recommendations made by the recent report of the UK Government Senior Salaries Review Body. Serving members would not, of course, lose any of their present entitlements but harmonisation would have to take place. As this only involves two part-time Land Court members, the cost implications would be relatively modest.



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