The Scottish Government has launched a consultation about amalgamating the Scottish Land Court and the Lands Tribunal in Scotland. 

Many readers will be familiar with the work of the Scottish Land Court. It is the Court that deals with crofting disputes and disputes between agricultural landlords and tenants. The Lands Tribunal deals with disputes about compensation for compulsory purchase or loss in value caused by public works, rates appeals for non-domestic premises, references relating to the accuracy of the Land Registry of Scotland and applications for the variation and discharge of land obligations and real burdens in title deeds.

This is not the first time amalgamation has been suggested. In 1975, it was proposed that the Land Court be subsumed within the Lands Tribunal. This proved to be controversial and was never followed through. It is testimony to the high reputation of the Land Court that the current proposal is that the Lands Tribunal’s functions be subsumed into the functions of the Land Court.

The Land Court also has jurisdiction to deal with agricultural subsidy appeals made by farmers against adverse decisions by the Department. The Court has the power to award expenses depending on the success or failure of the appeal. An unsuccessful appellant can be required by the Court to meet the Scottish Government’s expenses.

It has been suggested that the prospect of being liable for expenses if an appeal is lost operates as a barrier to justice. The Scottish Government is in the positon to deploy considerable firepower in the form of Counsel, sometimes Senior Counsel, in addition to its own in-house solicitors, all funded at public expense. The consultation paper asks whether it would be better to abolish the power of the Court to award expenses in the appeal process or perhaps to introduce a statutory cap on expenses so that appellants would know in advance, what their maximum exposure was. This would be a significant change very much to the advantage of farmers. 

In my experience, it is often the case that an appeal against a subsidy decision will only be successful when it reaches the Scottish Land Court. A large number of appeals never make it as far as the Court because of the fear of incurring expense. If working farmers had more confidence that they would not be exposing themselves to undue expense by going to Court they might have more confidence in challenging decisions by Scottish Government.

For more information please contact Hamish Lean, Head of Rural Property and Business, at hamish.lean@shepwedd.com.

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