Specific statutory jurisdictions
The main authority for operation of the Tribunal is to be found in the Lands Tribunal Act 1949.
Discharge or variation of title conditions
The Conveyancing and Feudal Reform (Scotland) Act 1970 gave the Tribunal power to discharge or vary land obligations. That jurisdiction was replaced and expanded under the provisions of the Title Conditions (Scotland) Act 2003. The jurisdiction now applies in relation to various title conditions, mainly real burdens or servitudes. The Tribunal can now in some cases determine questions as to validity, applicability or enforceability of real burdens. There is now power to grant unopposed applications without further procedure. There is a new approach to expenses in some cases.
The Tribunal can also now consider applications by benefited proprietors to renew (or vary) burdens in certain cases, where the burdened proprietor has executed new statutory rights to execute and register notices of termination or variation and discharge, for example under the “sunset” rule (at least 100 years since the deed containing the burdens was recorded) or in relation to “community burdens” (burdens imposed on more than one property under a common scheme).
The factors relevant in considering applications for variation and discharge (or renewal) are now contained in Section 100 of the Title Conditions (Scotland) Act 2003. There are now ten factors which the Tribunal may take into account. The substantive approach taken by the Tribunal to such issues has not varied greatly.
You may read the text of Section 100 of the 2003 Act on this web site.
The Tribunal also now has some jurisdiction under the Abolition of Feudal Tenure etc. (Scotland) Act 2000, mainly in certain cases in which the abolition of the superior’s right to enforce is subject to re-allotment provisions or notices preserving development value burdens.
Tenants’ rights to purchase
The Housing (Scotland) Act 1987 empowered the Tribunal to deal with a variety of references and disputes related to the rights of public sector tenants to purchase their homes. The right to purchase was repealed on 1 August 2016 so there will now only be a residual number of such cases.
The Tribunal has authority under several Acts of Parliament to resolve questions of disputed compensation. The two main pieces of legislation are the Land Compensation (Scotland) Act 1963 and the Land Compensation (Scotland) Act 1973. There are also other pieces of relevant legislation, some of which are very old but nonetheless significant. Typically references to the Tribunal deal with claims following compulsory purchase of land, or compensation for depreciation caused by public works — for example, a new by-pass may benefit the public but reduce the value of property near it. The Tribunal also has jurisdiction to consider claims for compensation arising from coal mining subsidence: see the Coal Mining (Subsidence) Act 1957 and the Coal Mining Subsidence Act 1991.
Valuations for rating (non-domestic premises)
The Tribunal is empowered by an amended provision of the Lands Tribunal Act 1949 Section 1(3) to deal with appeals against rating assessments. It does so in accordance with procedures laid down in the appropriate Rating and Valuation Regulations.
Appeals against the Keeper of the Registers of Scotland
Section 25 of the Land Registration (Scotland) Act 1979 conferred on the Tribunal the authority to hear appeals against decisions of the Keeper in relation to the registration of title to land. The system of land registration has been altered by the Land Registration etc. (Scotland) Act 2012. Under section 82 the Tribunal has jurisdiction to determine questions referred to it relating to the accuracy of the register and what is needed to rectify an inaccuracy. Under section 103 the Tribunal has jurisdiction to hear appeals on a question of fact or law against any decision of the Keeper under the 2012 Act. These jurisdictions can give rise to cases involving complex questions of property title as well, for example, as cases involving simple disputes as to boundaries.
Valuation on pre-emptive purchases
Under the Land Reform (Scotland) Act 2003, the Tribunal has jurisdiction to determine appeals in relation to the valuation of land that may be subject to pre-emptive rights of purchase by community bodies. The Tribunal also has an ancillary jurisdiction involving the sale procedure. Under the Agricultural Holdings (Scotland) Act 2003, the Tribunal has similar jurisdiction in relation to valuation of farms to be sold to sitting tenants.
Electronic communications code
Since the coming into force of the Digital Economy Act 2017 on 28 December 2017 the Tribunal has had jurisdiction to deal with disputes under the electronic communications code set out in the Communications Act 2003. This is a specialised area of law. Although the Tribunal rules do not provide forms for applications, parties should be aware that Ofcom has prescribed forms of notice to be given under the Code. Ofcom has also set out a Code of Practice and standard terms for a code agreement.
Parties should also be aware that the legislation requires certain types of case to be determined within 6 months of the date of the application. In such cases this will be a critical deadline. The Tribunal will require particular cooperation from parties to ensure that the deadline is met. Both parties should seek to discuss and prepare the case as far as possible prior to the Tribunal application being made so as to limit the lead-in time for a hearing.
Voluntary or joint reference
Section 1(5) of the Lands Tribunal Act 1949 allows the Tribunal to act as arbiter under a reference of consent. This means that where both sides agree, any dispute can be referred to the Tribunal. Parties from time to time choose to make use of this provision in relation to disputes involving land, such as disputes as to the valuation of land. This is potentially a useful resource to those with an interest in dispute resolution within the land based system. The Tribunal members are experienced litigation lawyers and experienced FRICS surveyors, and the dispute resolution infrastructure, namely clerking, offices, courtrooms, witness rooms etc. are available.
Sometimes parties have come before the Tribunal wrongly assuming that they are following a statutory procedure in relation to claims over land taken by compulsory purchase. However, where the land has actually been sold by agreement even under the shadow of compulsory purchase, the Tribunal has no formal jurisdiction. Applications have been able to continue as if they were a reference to the Tribunal as arbiter. A reference under this section is a private reference and parties are entitled to request that proceedings be heard in private.