Frequently asked questions
Is a Lands Tribunal application part of the planning permission process?
No. The process at the Lands Tribunal is quite separate from the process of obtaining planning permission from the local authority. Where the planning side of things is concerned with aspects of public amenity, traffic, noise, density of building, and so on, the Lands Tribunal is concerned solely with the matter of private rights. The Tribunal has no power to hear appeals on a planning decision.
Do I have to use a solicitor at the hearing?
No. As with any form of legal action, it is advisable for you to consult with a solicitor; but any party to the proceedings may appear and be heard in person. Of course, they may also be represented by a solicitor or an advocate specialising in court work or, with the Tribunal’s permission, by any other person. In that case, you must send a letter to the Clerk to the Tribunal in advance of the hearing, requesting that another person represent you in court.
What are productions?
Productions are documents that you will refer to in the course of leading your evidence. They may be title deeds, specialist reports (from a surveyor, for example), photographs, and so on. You should lodge a specified number of copies (normally three) of all productions with the Tribunal and copy them to the other parties fourteen days before the hearing. In valuation cases, which involve reference to comparable properties, you must lodge with the Clerk to the Tribunal a list of the properties from which you will draw support 28 days before the hearing. The Clerk will then copy each list simultaneously to all parties.
What about witnesses and authorities?
It is appropriate practice if, five days before a hearing, you lodge with the Tribunal
- a list specifying the full names, addresses, occupations and qualifications of any witnesses you may call; and
- a list of past cases or statutes (known as authorities) to which you might refer during the hearing.
Prompt intimation of authorities allows members of the Tribunal an opportunity of looking at the cases in advance. This reduces the time spent on formal introduction of authorities at the hearing. It also assists in comprehension of the legal submissions as they are made. You must understand, however, that this is not a substitute for a solicitor or a party litigant fully setting forth all necessary information to be founded on.
You may be asked to produce photocopies of your authorities, especially when hearings are arranged out of Edinburgh.
Are there “wigs and gowns” at hearings?
No. The Tribunal is not strictly a court and never sits in wig and gown.
Might the Tribunal award expenses?
Possibly. The Tribunal has power to award expenses in most of its jurisdictions. Usually awards will be in favour of the successful party, but this is not an invariable rule. Legislation might lay down how an award should be determined; for example, in valuation for rating cases or in compensation cases in which a formal offer has been made. It is normal procedure to deal with the matter of expenses on parties’ written submissions rather than by way of a separate hearing.
Does the Tribunal decide how much I am to be paid for expenses?
No. If no agreement is reached between parties as to the actual amount, then expenses are decided, at the discretion of the Tribunal, either by the Auditor of the Court of Session or by the Auditor of a Sheriff Court specified by the Tribunal. However the Tribunal may have to decide what scale of expenses is to be allowed. The Tribunal will also decide whether the expense of employing counsel or expert witnesses is a good claim.
Can I get Legal Aid to pursue my case?
In appropriate cases legal aid may be available to you in connection with proceedings before the Lands Tribunal. You should make any application under Schedule 2 of the Legal Aid (Scotland) Act 1986 to the Scottish Legal Aid Board at the address below.
The Scottish Legal Aid Board
44 Drumsheugh Gardens
How long does the process take?
The length of time that an application takes depends largely on whether or not there is any opposition. For example, an unopposed application to discharge or vary title conditions can be dealt with within two months. If the application is opposed and the matter has to go to a hearing, the whole process could take between four and six months. Compensation references often take at least a year to conclude. Any delays in the process are generally caused by the parties to the action (who may require more time at particular stage of the process or to accommodate their representatives’ availability for hearing dates, etc.) rather than by the Tribunal itself.