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127. Part 9 of the Bill deals with the Lands Tribunal which is the court that is responsible for hearing applications for the variation or discharge of title conditions. The Lands Tribunal's powers to discharge real burdens are set out in the Conveyancing and Feudal Reform (Scotland) Act 1970. The 1970 Act uses the phrase 'land obligations': the Bill refers to 'title conditions'. Section 85 of the Bill restates these powers and makes some additions or alterations to them. The main changes to this part of the existing law are to allow the Tribunal to determine the validity of a burden, and to extend its jurisdiction so that it can deal with the new termination procedures (which are discussed in Chapter 1 of this Paper).
The Executive broadly supports the restatement and enhancement of the law relating to the jurisdiction of the Lands Tribunal.
128. Sections 85 and 88 to 91 set out the provisions as to who can apply to the Tribunal, who can make representations to it, who must be notified as to the application, and what information must be contained in the application.
The Executive agrees with the provisions on application and representation.
Unopposed applications
129. Section 92 of the Bill makes a change to the existing law. It provides a new fast-track procedure for applications to the Lands Tribunal which are not opposed. This procedure, which will provide for automatic discharge of unopposed applications, will not, however, be available for facility and service burdens.
130. Under the 1970 Act, the Tribunal is bound to consider the merits of all applications, even if unopposed, and may grant an order to vary or discharge a burden only where it is satisfied that the statutory grounds have been met. Section 92(1) provides that if an application is not opposed, the Tribunal must grant it. This would bring savings of both time and resources.
131. An application would count as unopposed if representations were subsequently withdrawn. Only representations by owners of benefited properties or holders of the real burden would be treated as opposition to the application. The Tribunal would still have a role in receiving the application, notifying the appropriate owners, checking that the application has been properly made and granting the appropriate order discharging the burden. It would not be competent to award compensation in such a case or to impose a substitute real burden.
132. Although the Executive is attracted to the idea of a fast-track procedure for unopposed applications to the Lands Tribunal, it does have some concerns. If no representations are received by the Tribunal, rights to enforce possibly desirable amenity burdens would be discharged with no consideration of the merits of the application at all. This contrasts with planning applications where each application is considered by the planning authority in relation to the local planning scheme even if there are no objections. Questions also arise in relation to the proposed timescale. At present, a party wanting to object to an application usually has 21 days to do so. 21 days is a relatively short period of time, yet if no representations were received by the Tribunal, the application would be granted automatically. An owner of benefited property could easily be absent from his property on holiday for such a period.
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Discussion Point 30 The Executive favours the proposed fast-track approach for unopposed applications to the Lands Tribunal. Do you think the 21 day period for objections is adequate? |
Grounds for disposal of applications
133. Sections 93 and 94 make new provisions on the grounds on which the Tribunal must decide on opposed applications.
134. Under the 1970 Act, a discharge may only be granted if the Tribunal is satisfied that:
135. The Commission believe that these existing grounds do not balance possibly competing considerations. Each is self-contained and, if pled, must be considered separately by the Tribunal in spite of the obvious overlap between them. Success under one of the grounds means success for the whole application.
136. The Commission have suggested that the present grounds should be amended and treated as a series of indicators as to whether or not an application should be granted. Under its proposals, there would be a unified test of reasonableness which would be assessed by reference to a number of specific factors. The Tribunal would evaluate all of the relevant factors to determine whether it is reasonable to discharge, vary or renew a title condition. The proposed factors - which are set out in section 94 - are:
The Executive agrees that the grounds for disposal of applications to the Lands Tribunal should be based on a reasonableness test assessed by reference to the indicators set out in paragraph 136.
Recent title conditions
137. The Bill provides that the existing rule that no application for discharge of a title condition can be made until the condition has been in place for 2 years should be abolished. The Commission suggest that it should be possible, however, to stipulate in the constitutive deed that no such application can be made during a period of up to 5 years after creation (section 87).
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