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

Question 8 – other comments

There were quite a few other comments, some re-iterating points made in earlier answers to the consultation questions and some making new points.

Jennifer Henderson, the Keeper of the Registers of Scotland, did not consider it her place to comment on the questions raised in the consultation. However, she did wish to state that she noted that the main proposal was an amalgamation of the Land Court and Lands Tribunal by means of the incorporation of the latter into the former. She continued:

"As things stand at this time I am, as Keeper, involved in appeals under s103 of the Land Registration etc. (Scotland) Act 2012, which fall under the auspices of the [Lands Tribunal] and reflects the effect of any [Lands Tribunal] determination in the Land Register. In respect of the [Land Court], I, as Keeper, will make any amendments, as the result of a successful appeal to the [Land Court], to the extent of a croft on the Crofting Register as instructed by the Court.

One of the respondents asked if there was an error in paragraph 35 of the consultation paper. Their understanding was that "appeals lie from the Lands Tribunal on a point of law to the Court of Session under section 11(7) of the Tribunals and Inquiries Act 1992". They considered that paragraph 35 gave the impression that all appeals from the Lands Tribunal lie to the Lands Valuation Appeal Court, "which, however, is only correct in the case where the Tribunal hears rating valuation appeals as per the Lands Tribunal Act 1949, section 1(3C)".

The Scottish Land Commission suggested that "it would be good to see the court/tribunal encouraging, or indeed requiring, applicants to have tried some form of alternative dispute resolution (ADR) before their case can be submitted to the court". It reasoned that ADR is becoming more common and "is proving to be a successful way of resolving issues at lower cost than litigation and in a way that is more likely to have a positive result in terms of maintaining a good relationship between the parties, something that is highly desirable in terms of the landlord/tenant situation". The Scottish Tenant Farmers Association was also in favour of ADR.

J Campbell Gemmell, the ERCS, the Law Society, and J Campbell Gemmell raised the issues of the Aarhus Convention and an environmental court for Scotland that had already alluded to in answers to some of the questions asked in the consultation.

Inksters made an observation about fees and sees that an amalgamation of the Land Court and Lands Tribunal as an opportunity to address what it considers to be an omission in that it appears as though it is not currently possible for solicitor firms with Scottish Courts and Tribunals Service credit accounts to be able to use these for the purposes of Land Court fees.

James McPherson and the Scottish Crofting Federation raised an issue about the archive held by the Land Court. Both felt it imperative that all archived material of the Land Court remain accessible.

ScotWays was concerned that transferring Land Reform cases from the sheriff court to an expanded Land Court could prove more expensive.

The Crofting Commission and another respondent made suggestions as to the qualifications that should be required of the Chair of any expanded Court. It also considered that the role of Principal Clerk should be retained.

.The Scottish Assessors Association noted at that at paragraph 63 of the consultation that, if the Tribunal were incorporated into the Scottish Lands Court, it would become subject to the Court's internal appeal system. At present non-domestic rating appeals against decisions of the Lands Tribunal are made directly to the Lands Valuation Appeal Court. The Association would like the present procedure to continue rather than being replaced by the Land Court's internal appeal system. The Association also warned that it considered that fee review mentioned in paragraph 65 of the consultation that would occur if the Lands Tribunal were incorporated into the Land Court must not result in any increase in the level of fees charged for the referral of appeals to the resultant body as any significant change could be detrimental to the public purse.

Finally, one respondent raised concerns about the time taken to obtain a hearing at present saying that "justice delayed is justice denied". This respondent presumed that the extended timescales are owing to capacity and they hoped that amalgamation would be helpful in dealing with the issue.