The Law Commission

PART IV

A REFORMED STRUCTURE FOR LAND, VALUATION AND HOUSING TRIBUNALS

Introduction

4.1      Given the Leggatt principles of independence, coherence and user-friendliness discussed in Part III, this report seeks to apply those principles to reform of the project tribunals. In developing our proposed model we have also been guided by the importance of building on the strengths of the project tribunals, in order to construct a rational structure for them for the future. We see our model as the start of a modernising process that will continue in the tribunals' future development. Our proposed reforms therefore aim to accommodate to a large extent the essential elements of the project tribunals while also looking to their future development and to the addition of new jurisdictions.
4.2      This Part and Part V together set out our proposals for rationalising the project tribunals. In this Part we set out our proposed new structure. In Part V we discuss certain important matters relating to the operation of our proposed tribunals in practice.
4.3      In our consultation paper^[1] we discussed three possible options for reform of the project tribunals. These options were intended to be used as a basis for further discussion by consultees with expert knowledge of the day to day operation of the tribunals. The options are set out in full in the consultation paper,^[2] but are summarised here for ease of reference.

(1) Option 1: retaining the existing tribunals but rationalising certain features of them. The suggestions for reform were a common appeal route from all of the first tier project tribunals to the Lands Tribunal; rationalisation of the Lands Tribunal's current dual first instance and appellate jurisdiction and formal unification of the Leasehold Valuation Tribunal, the Rent Assessment Committee and the Rent Tribunal.

(2) Option 2: bringing the current first tier project tribunals closer together by having an administratively unified system (the "amalgamated tribunal" option). It was suggested that individual cases could be allocated to "streams" within the system, reflecting the existing divisions between the tribunals, including existing procedural divisions. In this option, tribunal members would continue to hear disputes within their present areas of expertise. Although amalgamated for administrative purposes, the current tribunals would to a large extent retain their jurisdictional distinctions within the amalgamated tribunal.

(3) Option 3: a completely unified tribunal. This option envisaged the jurisdiction of all the first tier project tribunals being combined into a single tribunal with a single procedural code for all disputes. All tribunal members might eventually be able to hear any type of dispute, although at least initially there would be a degree of "ticketing" of members to ensure that cases continued to be heard by those with relevant expertise.

4.4      In the consultation paper we expressed a provisional preference for option 3. This was on the basis that it appeared to us at that stage that this form of unified tribunal was the best way of delivering the Leggatt vision for the project tribunals.
4.5      The responses to consultation confirmed our view that rationalisation of the current project tribunals into a unified tribunal structure is the way forward. However, the consultation process has persuaded us that this unified structure should be different from the unified or amalgamated tribunal envisaged in our original options 2 and 3.

The way forward: a unified tribunal structure

Changes to the consultation paper options

4.6      One preliminary issue that we raised in the consultation paper was whether the distinction between party and party disputes and citizen and state disputes was an important one in the context of the project tribunals. We do not now consider this to be a material distinction. The subject matter of the jurisdictions concerned is the most important factor. This view was backed up by consultees.^[3] The only way in which these types of disputes might need to be treated differently is that some procedural rules might need to be slightly different. This is discussed in paragraph 5.41 below.
4.7      We do not consider that option 1, essentially keeping the overall structure as it is with some changes, is a realistic option in the context of the post-Leggatt view of tribunals. Consultation responses confirmed that this would be a missed opportunity to improve the project tribunals.^[4] To fully deliver the key advantages of the project tribunals to users, more radical reform is needed.
4.8      Options 2 and 3 were somewhat similar to each other. Option 2 suggested a common administration for the tribunals but no further real integration. We do not consider this a meaningful route for reform. Within option 3 we suggested that one possibility might be that eventually every member might be able to hear every case before the unified tribunal. A key issue to come out of consultation was a concern that the vital expertise that currently exists in the project tribunals must be retained. We have recognised that it is crucial to devise a structure which ensures that this expertise is fully retained and sustained in the future. We do not now favour such a radical option and have therefore revised our model for a unified tribunal accordingly.
4.9      Options 2 and 3 essentially consisted of a unified or amalgamated first tier tribunal with a mainly appellate Lands Tribunal. In the consultation paper we noted that the Lands Tribunal currently has jurisdiction over both first instance and appellate cases. Our provisional view was that the first instance cases of the Lands Tribunal should usually be heard in the unified first tier tribunal, only being referred to the Lands Tribunal in certain circumstances through case management procedures. This model envisaged that cases would "leapfrog" to the Lands Tribunal only if a particular case were complex on its own facts. The Lands Tribunal would therefore be a mainly appellate tribunal, with jurisdiction to hear any first instance case only if it were referred up from the unified first tier tribunal. The Lands Tribunal would not, on this view, have its current jurisdiction for both first instance and appellate cases.
4.10      We now accept that this would not be a suitable model for the project tribunals. Our original concern was to ensure that the expertise of the Lands Tribunal should be reserved only for the most complex first instance land, valuation and housing disputes. We had thought to tackle this by using case management systems to refer cases which were complex on their facts up from the unified first tier tribunal to the Lands Tribunal. We have now moved from an entirely case management system for determining complexity to a more jurisdiction based system.^[5] We have understood through the consultation process that the Lands Tribunal's first instance jurisdictions in fact almost always deal with complex cases. The legal and factual complexity of the Lands Tribunal's jurisdictions (the majority of which are its first instance jurisdictions)^[6] was noted in the Leggatt report.^[7] For examples of cases heard by the Lands Tribunal at first instance, see paragraphs 4.40 – 4.43 below. In the model we now propose, the expertise of the Lands Tribunal is still reserved for the most complex first instance disputes, but the question of complexity is mainly determined according to the jurisdiction involved rather than on the facts of any one case.
4.11      The Lands Tribunal has developed a special expertise in these complex first instance cases and a distinguished reputation for its handling of them.^[8] We now think that it is necessary to keep the Lands Tribunal in something quite similar to its present form, so that these difficult and specialised first instance cases are heard by those who have the experience and the ability to do so. The members needed to hear these complex first instance cases are also appropriate people to hear land, valuation and housing appeals. The present form of the Lands Tribunal was praised in the Leggatt report, which noted with approval the current mixture of first instance and appellate jurisdictions in the tribunal.^[9]
4.12      We have therefore changed our structural model for the project tribunals accordingly, and this is discussed below.

The overall structure

4.13      This section is intended to give a picture of the overall structure of our suggested model. The details are discussed in the following sections of this Part and Part V. A diagram showing our proposed structure is at Appendix B.
4.14      The new model envisages two tribunals to deal with land, valuation and housing cases. In our model, a Property and Valuation Tribunal ("PVT") would deal with the majority of cases at first instance. The PVT would comprise the current jurisdictions of the RPTS tribunals, the Valuation Tribunals and the Agricultural Land Tribunals. Appeals from the PVT would be to a reformed Lands Tribunal.
4.15      The reformed Lands Tribunal would largely be based on the current jurisdictions of the Lands Tribunal, with some extensions of its jurisdiction. The tribunal would therefore retain its first instance jurisdictions, and would also be the appellate tribunal for all decisions of the PVT. Our model sees the reformed Lands Tribunal as being analogous to the High Court in having both an original jurisdiction for complex first instance cases and an appellate jurisdiction. The Commons Commissioners and the Adjudicator to HM Land Registry would also be transferred to be brought within the reformed Lands Tribunal. Both the PVT and the reformed Lands Tribunal would be under the control of the Department for Constitutional Affairs.
4.16      Although we suggest that land, valuation and housing cases should be divided between the two reformed tribunals as described, our aim is that the tribunals should be sufficiently flexible to ensure that all cases are heard at the right level. We suggest therefore that the two tribunals should be "porous". This means that cases properly started at one level should be moveable upwards or downwards, as appropriate, taking all relevant factors into account.
4.17      The reformed tribunals must also be sufficiently flexible to ensure that members with sufficient expertise and the right level of expertise hear each case. A new system of member "specialisms" is proposed to ensure that this will happen.
4.18      Our model is slightly different from the broad structure discussed in the Leggatt report, which envisaged a two-tier system with different tribunals for first instance and appellate cases.^[10] However, as noted above,^[11] the Leggatt report also praised the current mixture of first instance and appellate work in the Lands Tribunal.^[12] We think that our proposals represent a practical realisation of the Leggatt concept which reflects the realities of the project tribunals.

Advantages of the proposed structure

4.19      We believe that our proposed system would provide direct benefits for users. Users would have a clear contact point for applications to the tribunals and throughout the progression of their case. The system would be sufficiently flexible and adaptable so as to be able to deal with cases fairly, efficiently and economically. In the jurisdictions of the project tribunals it is important that cases are dealt with in this way, given that cases will often determine key questions relating to homes and livelihoods. A unified system should also enable greater resources to be directed to providing user information and publicity, as well as assistance where appropriate.
4.20      There should be advantages for the tribunals themselves. Our proposed structure would provide the opportunity for greater administrative efficiency and economy. We hope that a unified system would enable sharing of training provision, equipment, estate and IT systems. A more unified structure should facilitate recruitment for members and staff and provide clear and attractive routes for career progression.
4.21      A unified system should bring a greater consistency of approach to resolving land, valuation and housing disputes and to the development of the law in these areas. The current tribunals already have some features which enable them to provide some of this consistency of approach. One such feature is the unification in practice of the Leasehold Valuation Tribunals, Rent Assessment Committees and Rent Tribunals under the umbrella of the Residential Property Tribunal Service. Another is the appellate link between the Lands Tribunal and the Leasehold Valuation and the Valuation Tribunals (for some of the Valuation Tribunal's decisions). Our proposed system is intended to build upon and extend the benefits of these structures. A greater consistency of approach could lead to increased user confidence.
4.22      Even if it is felt that the current system works adequately for the present resolution of land, valuation and housing disputes, it is important to look to the future and to create a system that can properly deal with upcoming legislation such as the Commonhold and Leasehold Reform Act 2002, the Land Registration Act 2002 and further into the future, new housing legislation such as that envisaged in the current draft Housing Bill.^[13]
4.23      Our structure holds advantages for the future in that it would open up the possibility of adding new jurisdictions to the tribunals where appropriate. The current proliferation of tribunals is a result of new tribunals often having to be created for new legal jurisdictions. A unified land, valuation and housing tribunal system should be able to cope with new work in related jurisdictions. For example some disputes relating to commonhold under the Commonhold and Leasehold Reform Act 2002, although at present within the jurisdiction of the courts, might be suitable for adjudication by a tribunal.^[14] These jurisdictions could where appropriate be conferred on our proposed PVT or reformed Lands Tribunal. The reformed tribunal system could also accommodate jurisdictions that are in the pipeline for the current project tribunals, for example the possible new jurisdictions for the Commons Commissioners.^[15] We would hope that a unified structure would in the future be a natural choice for dispute resolution in land, valuation and housing legislation.^[16] New jurisdictions have often been added to the Lands Tribunal over time.^[17] We seek to extend this advantage to a first tier tribunal.
4.24      We have not carried out a detailed financial costs-benefits analysis for our proposals. The detailed quantification of financial costs and benefits is a matter for a Regulatory Impact Assessment by the Government if it decides to adopt our proposals. However, we have heard from a number of consultees that they believe that considerable financial savings could be made and reduced running costs would be possible if there were a unified structure.
4.25      We now turn to consider the structure of the our proposed new tribunal system in more detail.

The Property and Valuation Tribunal

Jurisdictions of the PVT

4.26      We propose a PVT to deal with the majority of land, valuation and housing cases at first instance. We propose that this tribunal will be responsible for hearing most cases which are currently within the jurisdiction of

(1) the RPTS tribunals,

(2) the Valuation Tribunal and

(3) the Agricultural Land Tribunal.

4.27      The RPTS tribunals and the Agricultural Land Tribunals carry out similar types of work. Both hear disputes between landlords and tenants, albeit in different spheres of activity. Both tribunals use lawyers and experts as members to decide cases.^[18] We acknowledge, however, that there are some differences between, on the one hand the RPTS tribunals and the Agricultural Land Tribunals and, on the other hand, the Valuation Tribunals. These are as follows.

(1) While the members of the RPTS tribunals and the Agricultural Land Tribunals include lawyers and experts, cases in the Valuation Tribunals are heard solely by lay members (although some members may incidentally have expert qualifications).

(2) The Valuation Tribunals have a significantly larger caseload than the RPTS tribunals and the Agricultural Land Tribunals. In 2001, the Valuation Tribunals decided 33,546 cases, whereas the RPTS tribunals decided 6,608 cases and the Agricultural Land Tribunals 31 cases.^[19] The figures for the Valuation Tribunals are, however, rather misleading; many of the cases are simply the tribunals' ratification of settlements by the parties rather than a full adjudicative hearing. This is discussed further at paragraph 4.32 below.

(3) The RPTS tribunals and Agricultural Land Tribunals hear disputes between landlords and tenants. The Valuation Tribunals deal with disputes between citizens and the state.

4.28      The Government's announcement of the unified Tribunals Service referred to the inclusion of "central government" tribunals within the unified service.^[20] The Valuation Tribunals might be regarded as local rather than central government tribunals, as they adjudicate on questions relating to local government finance (though they are dealing with appeals against decisions taken by the Valuation Office Agency, an executive agency of the Inland Revenue). It is possible therefore that the Government might decide that the Valuation Tribunals will not be included within the unified Tribunals Service, at least initially.
4.29      We would argue, however, that the Valuation Tribunals are sufficiently similar to the other project tribunals to be included within a unified system. The tribunals are linked by the fact that they hear cases related to property, housing and the valuation of land. Like the RPTS tribunals, the Valuation Tribunals decide questions relating to the valuation of property (although the RPTS tribunals also hear cases which are not about valuation matters). Valuation cases in the RPTS tribunals and the Valuation Tribunal are broadly concerned with similar issues, and members of both tribunals use similar skills in deciding valuation questions. The Valuation Tribunals are closely connected to the overall scheme of the project tribunals in that, like the Leasehold Valuation Tribunals, there is an appellate route to the Lands Tribunal.^[21]
4.30      The Valuation Tribunals are not the only one of the project tribunals to hear disputes between citizens and the state. The majority of the Lands Tribunal's cases, that is its first instance compensation and compulsory purchase cases, are disputes between the citizen and the state. The list of jurisdictions for each of the project tribunals is not closed. It would be possible for citizen and state jurisdictions to be added either to the project tribunals or to a PVT and a reformed Lands Tribunal. It has been suggested that some jurisdictions under the Government's new Housing Bill might be suitable for adjudication by the RPTS tribunals.^[22] The Bill makes provision (among other matters) for appeals against local authority decisions relating to the licensing of houses in multiple occupation.^[23] If the RPTS were to have this jurisdiction, the tribunal would be adjudicating on disputes between citizens and the state.
4.31      It can also be argued that the Leggatt principles for the rationalisation of tribunals should apply to the Valuation Tribunals as much as to any other tribunal. The Valuation Tribunals and their users would also benefit from a more coherent and independent structure. Given these arguments, we think it right to include the Valuation Tribunals within our new system.

Operation of the Valuation Tribunals

4.32      The differences between the Valuation Tribunals and the other project tribunals do, however, raise questions about the operation of the Valuation Tribunals. It has been noted that Valuation Tribunals hear a comparatively large number of cases.^[24] However, the number of cases may be deceptive. This is because of the procedure by which proposals made for alteration of the non-domestic rating list or council tax valuation list are automatically referred to the Valuation Tribunal as an appeal if they are not settled within the time period specified by legislation.^[25] This procedure is intended to act as a catalyst for the parties to negotiate a settlement, and the majority of cases are settled before the hearing date.^[26] In 2001, the Valuation Tribunals received 386,307 cases, of which 328,014 were withdrawn and 33,546 decided following a hearing.^[27] The authors of the Leggatt report attended a Valuation Tribunal hearing, and they comment that the majority of the tribunal's time was taken up in ratifying negotiated settlements or noting withdrawn appeals. The Leggatt report argued that the ratification of documents is not a good use of a tribunal's time.^[28] It could be said that the automatic listing of cases before the Valuation Tribunals gives them more of an administrative than an adjudicative function. Arguably this is not the proper function of a tribunal.
4.33      A second issue related to Valuation Tribunals which is raised by comparing them to the RPTS tribunals and the Agricultural Land Tribunals is their wholly lay membership. Although the RPTS tribunals also use some lay members, a wholly lay membership is anomalous in the context of the project tribunals, and to a large extent in the wider world of tribunals.^[29] However, any alteration to the type of membership of the Valuation Tribunals would be a policy matter for Government and we make no recommendation about this. We consider our proposed system to be sufficiently flexible to be able to accommodate both lay and expert tribunal members. This is discussed further in Part V of this report.
4.34      We have also noted some wider issues relating to Valuation Tribunals and the resolution of local government finance disputes. We noted in our Consultation Paper^[30] that there are different forums for the resolution of local government taxation disputes as follows.

(1) Disputes as to the contents of non-domestic rating valuation lists are heard by the Valuation Tribunal with appeals heard by the Lands Tribunal.^[31]

(2) Disputes as to liability in relation to non-domestic ratings are heard by the magistrates' courts with appeals heard by the High Court.^[32]

(3) This can be contrasted with council tax, where disputes both as to the contents of valuation lists and as to liability are heard by the Valuation Tribunal, with appeals heard by the High Court.^[33]

4.35      A case might be argued for giving Valuation Tribunals jurisdiction to hear disputes about liability for non-domestic ratings as well as about the contents of the list, in line with council tax cases, with appeals to the Lands Tribunal. We note that the jurisdiction of the Valuation Tribunals may be extended in relation to non-domestic rating by proposed provisions in the Local Government Bill.^[34] If implemented, these provisions would mean that non-compliance with a statutory notice requesting information from a ratepayer about rental values would give rise to a civil penalty to be imposed by the valuation officer with an appeal to the Valuation Tribunal. This would replace the current criminal sanction imposed by the magistrates' court.^[35]
4.36      Given the factors noted above, we recommend that the Government considers reviewing the way in which the local government tax system is adjudicated, including the roles of the Valuation Tribunals and the magistrates' courts.

Appeals from the PVT

4.37      In our model, appeals from all cases within the PVT would be heard by the reformed Lands Tribunal. The proposed mechanics of the appeal process are discussed at paragraphs 4.62 – 4.74 below.

Reformed Lands Tribunal

Jurisdictions of the reformed Lands Tribunal

4.38      Our proposed model for the project tribunals has a second tier tribunal based largely on the current jurisdictions of the Lands Tribunal. As explained in paragraphs 4.10 – 4.12, we no longer think it would be appropriate to have a mainly appellate Lands Tribunal. We propose that the reformed Lands Tribunal should exercise both a first instance and an appellate jurisdiction, as well as some additional jurisdictions. In summary, we envisage that the reformed Lands Tribunal would have jurisdiction in the following types of cases.

(1) The Lands Tribunal's current first instance jurisdictions.

(2) The Lands Tribunal's current appellate jurisdictions over decisions of the Leasehold Valuation Tribunal and non-domestic rates, drainage rates and "old rates"^[36] decisions of the Valuation Tribunal.

(3) The new appellate jurisdictions that we propose for the reformed Lands Tribunal, that is appellate jurisdiction over the other cases which would be heard in the PVT. These are discussed in paragraph 4.46 below.

(4) The jurisdictions of the Adjudicator to HM Land Registry.

(5) The jurisdictions of the Commons Commissioners.

4.39      These jurisdictions are each discussed in more detail below.

First instance Lands Tribunal jurisdictions

4.40      The Lands Tribunal currently has jurisdiction to hear a number of cases at first instance. These are mostly compulsory purchase and other land compensation cases. Other first instance jurisdictions of the Lands Tribunal relate to blight notices, restrictive covenants, taxation disputes, arbitration and rights of light.^[37] In our scheme, the reformed Lands Tribunal would have jurisdiction to hear these cases, as the Lands Tribunal does now. This recognises the importance of there being an appropriate level of expertise for the complex and heavyweight compensation cases that largely make up the Lands Tribunal's first instance jurisdictions.
4.41      A large proportion of the Lands Tribunal's first instance jurisdictions concern compensation for compulsory purchase. These cases frequently involve difficult points of law and valuation principle, and substantial sums of money are often involved. The Lands Tribunal has told us that parties are represented by Counsel in the majority of cases and about a quarter of parties are represented by leading Counsel. Recent cases decided under the compulsory purchase jurisdiction highlight some of the factors which make these heavyweight cases which should stay with the reformed Lands Tribunal. For example, in Yorkshire Traction Co Ltd v South Yorkshire Passenger Transport Executive,^[38] the compensation awarded was £782,776 and the case involved questions of proper valuation methods and principles. In Christos v Secretary of State for the Environment, Transport and the Regions,^[39] £618,945 compensation was awarded and the Lands Tribunal decided legal questions relating to contract and estoppel as well as questions about the effect of a defect in legal title to property on valuation and the effect of damage to the property post-valuation.
4.42      The Lands Tribunal's other first instance jurisdictions will also usually require the special expertise that the tribunal has developed. The Lands Tribunal's restrictive covenant jurisdiction,^[40] for example, is relatively technical and complex. In this jurisdiction, those who are entitled to the benefit of the restrictive covenant in question can object to its modification or discharge. Disputes as to whether objectors are so entitled are determined as preliminary issues. This requires a detailed understanding of land law. Although the majority of these restrictive covenant cases are decided by the President without a hearing, where a hearing is needed detailed and technical issues relating to the statutory grounds for discharge and modification of restrictive covenants may need to be considered.^[41]
4.43      We recognise that although cases within the Lands Tribunal's first instance jurisdiction are usually complex, there will sometimes be cases that are less complex, or are of a lower monetary value. An example of such as case might be the recent Lands Tribunal decision Nesbitt v National Assembly for Wales.^[42] This was a claim under the Land Compensation Act 1973 for compensation for the deprecation in value of a house caused by a new motorway bridge. The compensation awarded was £6,250. The case was heard under the Lands Tribunal's simplified procedure.^[43] Within our proposed scheme, simpler or lower value cases might be more suitably heard in the PVT. We therefore suggest a mechanism which would allow such cases to be transferred from the reformed Lands Tribunal to the PVT (or vice versa in appropriate circumstances). This is discussed in paragraphs 5.55 – 5.60 below.

Appellate jurisdictions

4.44      The Leggatt report noted that the current structure of appeal routes from tribunals developed alongside the unstructured growth of the tribunals themselves, and, as a result, it is a haphazard system. The report saw a need to simplify the system and to make sure that appeal routes are rational and clearly defined.^[44] We agree. A coherent and user-friendly tribunal system needs a single, rational route of appeal. A single appellate tribunal would also be able to develop the law in a consistent manner across the range of land, valuation and housing matters, and this should in turn assist the consistency of decisions in the first instance tribunal. Consultees supported the creation of a single route of appeal,^[45] including those commenting from the point of view of the RPTS tribunals and the Valuation Tribunals, in which there are presently divergent routes of appeal for different jurisdictions.^[46]
4.45      We suggested in our consultation paper that this single route of appeal should be to the Lands Tribunal.^[47] The Lands Tribunal is a respected and expert tribunal which is already experienced in hearing appeals from some of the project tribunals. It regularly hears complex cases including those which involve difficult questions of law and valuation principle. The Leggatt model is for appeals to be heard within the tribunal system rather than by the courts (with a few exceptions). For these reasons, we think that the single route of appeal should be to the Lands Tribunal. This was supported by the majority of consultation responses.^[48]
4.46      In our scheme, the reformed Lands Tribunal would hear appeals from all cases within the jurisdiction of the PVT. As noted above,^[49] the Lands Tribunal currently hears appeals from all cases heard at first instance in the Leasehold Valuation Tribunal, and non-domestic rates, drainage rates and "old rates" cases heard by the Valuation Tribunal. Legislation would therefore be needed to transfer the appellate jurisdiction to the reformed Lands Tribunal for appeals from the following first instance jurisdictions:

(1) Valuation Tribunal council tax and community charge jurisdictions,^[50]

(2) All Rent Assessment Committee jurisdictions,

(3) All Rent Tribunal jurisdictions and

(4) All Agricultural Land Tribunal jurisdictions.

4.47      We mentioned in paragraph 4.44 above the role of the reformed Lands Tribunal in promoting consistency across the range of land, valuation and housing disputes. The Leggatt report submitted that that there would be greater consistency and coherency in a unified Tribunal System if there were systematic arrangements for appellate tribunals to be able to set precedents.^[51] The report noted that in practice the Immigration Appellate Authorities and the Social Security and Child Support Commissioners have already moved towards selecting particularly important decisions as carrying authority.^[52]
4.48      The Leggatt report recommended that there should a system in which some (not all) appellate tribunal cases were designated as binding,^[53] with final decisions about binding precedents being taken by the President of the appellate tribunal concerned (in conjunction with the Tribunals Board proposed in the Leggatt report).^[54] The report preferred a system in which cases were selected to have precedent status after they had been heard, rather than cases being selected in advance of the hearing and then being heard by a special panel.^[55]
4.49      We think that a formal system of precedents would have a useful role to play in our proposed PVT and reformed Lands Tribunal. We believe that it would give useful guidance to the PVT and promote consistency of decision-making if the Lands Tribunal were able to designate some of its appellate decisions as binding precedents. If the Leggatt recommendation for a system of precedents is implemented by the Government for a unified Tribunals Service, then we think that whatever system is adopted should also apply to our proposed PVT and reformed Lands Tribunal.

The Adjudicator to HM Land Registry and the Commons Commissioners

4.50      In the consultation paper, our options 2 and 3 included all of the first instance tribunals within the amalgamated or unified tribunal. We have since reconsidered the position of the Adjudicator and the Commons Commissioners. In the light of consultation responses, we take the view that the work of these smaller tribunals requires a different level of specialist knowledge to that of the tribunals which we propose should be within the PVT.^[56] In our opinion, cases before the Adjudicator and the Commons Commissioners require an in-depth knowledge of property law and more specifically the law relating to registered land and the law of commons respectively.
4.51      The main jurisdiction of the Commons Commissioners is to decide on disputed registrations of land as common land or as town or village greens.^[57] To do this they must decide whether land falls within the legal definition of common land or a town or village green.^[58] This can raise difficult factual and legal issues. A recent example is Llangenith Manors Ltd v Chief Commons Commissioner,^[59] an appeal from the Commons Commissioners to the High Court on the question of whether land was correctly registered as a village green. The High Court judge reviewed the very detailed evidence that the Commissioner had heard from a number of witnesses regarding the exact nature and history of activities that had taken place on the land in question in order to decide whether there was a "customary" green which had been enjoyed for time immemorial or a "prescriptive" green over which a right had been enjoyed as of right for 20 years.^[60] In relation to these two legal types of village green it was also necessary to consider the nature of the custom, to have proof of certainty of the locality in which the custom was alleged to exist and proof of certainty of the persons enjoying the custom. The High Court judge found that the Commons Commissioner had erred in law and that there was no strict and proper proof of a village green. The House of Lords has also recently decided a number of issues relating to the legal definition of a village green in the important case R v Oxfordshire CC ex parte Sunningwell Parish Council.^[61]
4.52      The main role of the Adjudicator will be to hear contested applications for registration, where the registrar of the Land Registry is unable to dispose of these objections by agreement.^[62] As the Adjudicator has not yet decided any cases, we cannot with certainty say whether the tribunal will deal with complex questions that should be decided within the reformed Lands Tribunal proposed in our scheme. However, the Solicitor to HM Land Registry carries out a similar role in dispute resolution at present as the Adjudicator will once the tribunal is established. Although the Adjudicator will not be deciding precisely the same range of disputes,^[63] we can gain some idea of the Adjudicator's work by looking at the cases the Solicitor has decided.
4.53      The cases heard by the Solicitor to HM Land Registry can be technical and complex. Cases often arise out of disputed first registrations, adverse possession claims and claims for rectification of the register. They often involve a determination of the correct legal title to the land by examining and interpreting conflicting conveyancing documents which date back over a number of years.^[64] The Solicitor and his Deputies have in recent cases considered the tests for adverse possession;^[65] the differing legal authorities on the effect of adverse possession by a tenant;^[66] the legal presumptions about the existence of boundaries^[67] and questions about easements.^[68] Some of the issues that arise in the cases could also be decided in the High Court.^[69] We think that the Adjudicator's cases would be appropriately dealt with at the level of the reformed Lands Tribunal.
4.54      The jurisdictions of the Commons Commissioners and the Adjudicator are somewhat similar to some of the complex and specialised areas of property law which the Lands Tribunal deals with at present. This is particularly noticeable in the sphere of restrictive covenants decisions, in which the Lands Tribunal often has to decide technical property law matters.^[70]
4.55      We suggest that the posts of Adjudicator and Chief Commons Commissioner should be preserved as distinct specialist roles within the reformed Lands Tribunal. Within the Lands Tribunal, there would be one individual with the title of Chief Commons Commissioner and one individual with the title of Adjudicator. The tribunal could sit as the Commons Commissioners or as the Adjudicator as relevant when hearing cases currently within these jurisdictions. However, our scheme is sufficiently flexible that other members of the Lands Tribunal (who we would expect to be lawyer members in this case) could over time gain experience in these two jurisdictions and hear some of these cases if necessary. Conversely, the Chief Commons Commissioner and the Adjudicator could hear other cases within the jurisdiction of the Lands Tribunal where appropriate. This would make full use of the expertise of the members of the Lands Tribunal and could potentially be an efficient use of resources, while increasing the range of work available to Lands Tribunal members.
4.56      The transfer of the Adjudicator and the Commons Commissioners to the Lands Tribunal would probably have some resource implications for the Lands Tribunal as currently constituted. We imagine that if necessary judicial, administrative and other resources would be transferred to the Lands Tribunal.

Appeals from the reformed Lands Tribunal

4.57      The appeal route from decisions of the Lands Tribunal is to the Court of Appeal on a point of law.^[71] This would continue to be the appeal route from the reformed Lands Tribunal in our scheme.
4.58      This would mean that appeals from the Commons Commissioners and the Adjudicator, which are currently to the High Court,^[72] would instead be to the Court of Appeal. We do not think that this would substantially increase the workload of the Court of Appeal. There are very few appeals at present from the Commons Commissioners to the High Court. The Chief Commons Commissioner told us in his consultation response that he was aware of only one such appeal in recent years.^[73] Although we cannot yet know the number of appeals there would be from the Adjudicator, there are very few appeals from the Solicitor to HM Land Registry and his Deputies, who perform a similar role at present, to the High Court. The Land Registry has told us that in the last five years there have been six such appeals.^[74] We would not therefore anticipate a large number of appeals from the Commons Commissioners and the Adjudicator to the Court of Appeal in our proposed system.
4.59      Our proposals would also result in some changes to the present basis of appeal from the Commons Commissioners and the Adjudicator. As noted in paragraph 4.57 above, appeals from the Lands Tribunal to the Court of Appeal are on a point of law only. Appeals from the Commons Commissioners to the High Court are also on a point of law only.^[75] Appeals from the Adjudicator to the High Court under the present law are not restricted to appeals on a point of law, other than appeals made in relation to the Land Registry Network.^[76] We do not think that this change to the basis of appeal from the Adjudicator is problematic. The Adjudicator will be a professional expert, sitting in a professional and expert second tier tribunal. We do not consider an appeal on the facts would be appropriate in these circumstances.
4.60      In our earlier report on land registration we recommended that appeals from the Adjudicator should go to the High Court and that they should not be restricted to appeals on a point of law, other than appeals made in relation to the Land Registry Network. We also noted, however, that "these rights of appeal may have to be reconsidered in the light of any recommendations that may be made by Sir Andrew Leggatt in his forthcoming Review of Tribunals."^[77]
4.61      We would not expect there to be a large number of second appeals to the Court of Appeal. Permission is required to appeal from the Lands Tribunal to the Court of Appeal.^[78] The Court of Appeal seems likely to adopt a strict test for the granting of permission in an appeal from an expert tribunal.^[79]

Appeals from the PVT to the reformed Lands Tribunal

4.62      As noted in paragraph 4.37 above, in our proposed scheme, all appeals from the PVT would be heard by the reformed Lands Tribunal. This section sets out the proposed mechanics of that route of appeal.

The permission requirement

4.63      The current requirements for permission to appeal from the first tier project tribunals to the Lands Tribunal vary depending on which tribunal is in question. Permission is not required to appeal non-domestic rating cases from the Valuation Tribunals. Permission is required to appeal any decision of the Leasehold Valuation Tribunal.^[80]
4.64      We think there should be a consistent permission requirement for appeals from the PVT to the Lands Tribunal in our proposed system. A permission requirement is consistent with the current practice in the civil courts.^[81] Either the Lands Tribunal or the PVT should have the power to grant permission.
4.65      The Lands Tribunal Rules^[82] do not prescribe how the Lands Tribunal is to exercise its discretion in deciding whether to allow permission to appeal. The Lands Tribunal's Practice Directions^[83] state that permission will only be granted if it appears to the Lands Tribunal that there are reasonable grounds for concluding that the decision of the Leasehold Valuation Tribunal may have been wrong because it wrongly interpreted or wrongly applied law or valuation principle, or that there was a substantial procedural defect. Alternatively, the Lands Tribunal may grant permission to appeal if the points at issues are of potentially wide application. It is for the applicant to satisfy the Lands Tribunal that permission should be given, and the tribunal takes into account the principles of proportionality in deciding whether it should do so. We do not propose any change to this approach. We think that a similar approach should be adopted by our proposed PVT and be published in Practice Directions. We expect that over time case law would develop which would give further guidance on the granting of permission.

Basis of appeals

4.66      In the consultation paper we discussed whether appeals from a unified first tier tribunal should be rehearings on the facts or appeals on points of law only.^[84] We provisionally took the view that appeals from decisions of lay tribunals should be heard as rehearings on the facts while appeals from expert tribunals should be on a point of law only.
4.67      We now consider that none of the appeals from the PVT to the Lands Tribunal should be restricted to points of law. This is different from the basis of appeal recommended in the Leggatt Report, which proposed that appeals should be on a point of law only, by permission, on the generic ground that the decision of the tribunal was unlawful.^[85]
4.68      We consider that a wider basis of appeal is necessary in the particular context of the project tribunals given the importance of valuation principles, as well as points of law, in these tribunals. One of the main purposes of the project tribunals is to determine questions of valuation. Professionally qualified valuer and surveyor members sit on the tribunals to determine specialist valuation issues. The power to decide points of valuation principle is an equally important facet of the Lands Tribunal's appellate role as its power to decide points of law. As noted by the then Attorney-General during the Second Reading of the Lands Tribunal Bill, the objective in creating the Lands Tribunal was that "there should be a single consistent jurisdiction combining legal and technical valuation expertise."^[86] If appeals from our proposed PVT to our proposed reformed Lands Tribunal were to be restricted to appeals on a point of law, this would deprive the Lands Tribunal of a key role in ruling on valuation questions and developing valuation principles for future cases.
4.69      It has been argued^[87] that if appeals were not restricted to points of law, this might open the floodgates in the number of council tax cases appealed to the Lands Tribunal. Council tax appeals from the Valuation Tribunals are currently to the High Court on a point of law only.^[88]
4.70      Our proposed permission requirement should prevent an unnecessarily large number of council tax appeals being brought to the reformed Lands Tribunal. Although we cannot know exactly how many applications would be made for permission to appeal, the indications are that this would not be a very great number. The Lands Tribunal currently hears appeals from the Valuation Tribunal in non-domestic rating cases.^[89] These appeals are not restricted to points of law and there is no permission filter. We understand that there are about 70 appeals a year from the Valuation Tribunal to the Lands Tribunal in these non-domestic rating cases.^[90] We have also been told by the Lands Tribunal that in the days of domestic rating, when there was an appeal to the Lands Tribunal with no permission filter, the number of appeals was "extremely small in relation to the total number of houses and flats in England and Wales."
4.71      We do not therefore recommend a different basis for council tax appeals from the PVT to the Lands Tribunal. It is worth noting that the Lands Tribunal's view is that permission applications could be dealt with quickly in view of the essentially simple nature of council tax cases, if more demanding criteria were set for the grant of permission and a fee^[91] were charged for making a permission application.
4.72      Under the Civil Procedure Rules, the hearing of appeals in the civil courts is limited to a review of the decision of the lower court, unless the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a rehearing. The court will not receive oral evidence or evidence which was not before the lower court, unless it orders otherwise.^[92] In the Lands Tribunal, there are no rules restricting how appeals should be heard, so the tribunal can hear cases by way of rehearing or review.
4.73      In practice the Lands Tribunal usually hears appeals as rehearings of the matters in dispute.^[93] Some of the facts may in practice be agreed between the parties in advance of the hearing, so the Lands Tribunal does not need to hear fresh evidence on these matters.^[94] The point at issue in many appeals is valuation, and the tribunal's decision on valuation rests on the evidence of valuation witnesses.^[95] In many cases, therefore, the Lands Tribunal will need to be able to hear evidence afresh to determine an appeal. The case as a whole may be more quickly disposed of if the Lands Tribunal is able to hear evidence afresh where necessary rather than reviewing the case and remitting the case to the first tier tribunal. We therefore think that the Lands Tribunal's rules should state that the tribunal can deal with an appeal either by way of review or rehearing, with Practice Directions or internal procedures providing further guidance.
4.74      This basis of appeal would give the Lands Tribunal a broad power to hear appeals on the facts of cases. However, many cases will have been heard at first instance by members who are experts in the jurisdiction in question and in the local area. In most cases there will have been a site inspection by the first instance tribunal. We expect that the Lands Tribunal would interfere with first instance findings of fact relatively rarely where these facts are based on specialist knowledge or the results of a site inspection.^[96]

Powers of the reformed Lands Tribunal on appeal

4.75      The powers of the Lands Tribunal on appeal at present differ slightly when hearing appeals from the Valuation Tribunal and those from the Leasehold Valuation Tribunal. In appeals from the Valuation Tribunal in non-domestic ratings cases, the Lands Tribunal may confirm, vary, set aside, revoke or remit the decision or order of the tribunal, and may make any order the tribunal could have made.^[97] In appeals from the Leasehold Valuation Tribunal, the Lands Tribunal may exercise any power that was available to the Leasehold Valuation Tribunal.^[98] It is not clear that this includes the power to remit the case to the Leasehold Valuation Tribunal.
4.76      We note that in the civil court system, the appeal court has all the powers of the lower court. Among the appeal court's powers is the power to affirm, set aside or vary any order or judgement made or given by the lower court or to refer any claim or issue for determination by the lower court.^[99] We recommend that the reformed Lands Tribunal should have the same full range of powers on appeals.

Judicial review

4.77      The Leggatt report recommended that first tier tribunals should be susceptible to judicial review only if all available rights of appeal had been exhausted, and that judicial review of a first tier tribunal in any other circumstance should be excluded by statute.^[100] The report recommended that the proposed appellate Division (made up of second tier tribunals) should not be susceptible to judicial review in any circumstances, and that judicial review should be excluded altogether by statute.^[101]
4.78      In practice, the project tribunals have very rarely been subject to judicial review,^[102] perhaps because of the availability of alternative routes of appeal. The courts will hardly ever grant permission for judicial review^[103] where a more appropriate alternative procedure is available.^[104] The courts have upheld this principle on several occasions.^[105]
4.79      In this report we propose a comprehensive, coherent and effective appeal system from the PVT to the reformed Lands Tribunal. We do not think that users should have the opportunity to forum shop by choosing between judicial review and an appeal to the Lands Tribunal.^[106] Given the comprehensive appeal system we propose, we do not consider that users of the PVT would need an alternative remedy of judicial review.^[107] One possibility would be to leave decisions about the availability of judicial review to the courts in the course of decisions about whether to grant permission for judicial review. However, our proposal for the exclusion of judicial review is a point of principle based on the existence of a coherent and exclusive route of appeal within the tribunal system. We therefore recommend that judicial review of decisions of the PVT should be expressly barred by statute where other remedies have not been exhausted.
4.80      We agree with the Leggatt report's recommendation on statutory exclusion of judicial review of the appellate Division. There would be an appeal from the reformed Lands Tribunal to the Court of Appeal. In order to prevent the possibility of forum shopping, it is desirable that judicial review of the Lands Tribunal be excluded. The Leggatt report reasoned that it would be inappropriate to allow judicial review proceedings from the appellate Division to the High Court on the basis that appellate Division would be of a similar status to the High Court as far as tribunals were concerned.^[108] The report argued that as the Senior President of the appellate Division would be a High Court judge, as would be a number of other Presidents, it would be inappropriate to subject them to review by a judge of equal status.^[109] Although we have not recommended that the President of the reformed Lands Tribunal should necessarily be a High Court judge,^[110] the President would be a judge or a senior lawyer with a specialist and expert knowledge of the tribunal's jurisdictions. It was noted in the Leggatt report that the Lands Tribunal has a status "broadly equivalent to that of the High Court."^[111] We recommend that statute should bar judicial review from the reformed Lands Tribunal.

Referrals to the courts

4.81      There are legislative provisions that enable referrals from some of the project tribunals to be made to the court for a number of different reasons.

The statutory provisions

4.82      There are two relevant statutory provisions which provide for referrals from two of the project tribunals to the courts.

Referrals from Agricultural Land Tribunals

4.83      Section 6 of the Agriculture (Miscellaneous Provisions) Act 1954 allows parties to request an Agricultural Land Tribunal to refer any question of law that arises in the course of proceedings to the High Court for decision. We understand that this provision is very rarely used in practice.

Referrals from the Adjudicator

4.84      Section 110 of the Land Registration Act 2002 allows the Adjudicator to direct parties to commence proceedings in the court to obtain the court's decision on a matter, instead of the Adjudicator deciding that matter himself.^[112] Draft rules provide for the adjournment of proceedings before the Adjudicator following such a direction and for the Adjudicator to close the proceedings (or that part of the proceedings which was referred to the court) without making a substantive decision once he has been informed of the court's decision.^[113]
4.85      The Law Commission report on land registration^[114] set out some of the reasons for which the Adjudicator's power might be used. These are

(1) "the application raises an important or difficult point of law;

(2) there are substantial or complex disputes of fact that are more appropriate for a court hearing;

(3) there are other issues between the parties already before the court (such as matrimonial proceedings); or

(4) the court has powers not available to the Adjudicator, as for example, the power to award damages for lodging a caution, applying for the entry of a notice or restriction, or objecting to an application without reasonable cause."^[115]

Reasons for referral

4.86      We see two distinct reasons for referral to the courts, namely referrals on points of law and referrals relating to overlapping jurisdictions.

Referrals on points of law

4.87      The first reason is the referral of a point of law or the whole case to the court in order to utilise the court's expertise on points of law. This is typified by section 6 of the Agriculture (Miscellaneous Provisions) Act 1964.
4.88      Our new tribunal system aims to be a coherent and expert system in its own right. We do not therefore think that there should need to be referrals to the courts for the purpose of deciding complex aspects of law. Complex areas of law should be capable of being decided within the tribunals structure itself. If, within our new system, a difficult point of law arises in an agricultural (or other) case before the PVT, the case may well be deemed more suitable for the reformed Lands Tribunal, and could be transferred to that tribunal accordingly, with an appeal route to the Court of Appeal. The case would then be heard at the appropriate level of expertise. The transfer mechanism is explored at paragraphs 5.55 – 5.60.
4.89      The Adjudicator would, in our proposed scheme, be placed within the reformed Lands Tribunal. We do not think there should need to be what would essentially be "sideways" referrals to the High Court of complicated points of law or legally complicated cases. In an expert system, there should be confidence that the Adjudicator would be able to deal with complicated legal issues, with appeals to the Court of Appeal. We therefore think that referrals from the Adjudicator to the court should be restricted to cases of jurisdictional overlap, as discussed in paragraph 4.90 below.

Referrals related to overlapping jurisdictions

4.90      The second reason for referral to the courts is the referral of part of or the whole case to the court because of issues related to overlapping jurisdictions. This is one possible use of the power in section 110 of the Land Registration Act 2002 for referrals to court. The provision is not restricted to referrals on points of law. We think it is useful to have a flexible power to refer matters to the court where the court is seised of other related issues between the parties, in order to avoid unnecessary duplication of proceedings. It could be useful for the PVT and the Lands Tribunal to have a power to direct parties to refer cases or parts of cases to the court in this way if appropriate for reasons of jurisdictional overlap. In Part VI, we recommend that our proposed PVT and reformed Lands Tribunal should have a similar power to that in section 110 of the Land Registration Act 2002 to refer cases or parts of cases to the courts in overlapping proceedings.^[116]
4.91      The sole purpose of section 6 of the Agriculture (Miscellaneous Provisions) Act 1964 is to refer points of law to the courts. For the reasons set out in paragraph 4.88 above, we recommend the repeal of this section.

Ministerial responsibility

4.92      We noted in Part III that the Leggatt report attached a great deal of importance to the fact that tribunals should be perceived by users to be independent. We noted that the perceived independence of tribunals is as important in those which hear disputes between private parties as in those which hear citizen and state disputes.^[117] In the words of the Leggatt report, tribunals must be seen to "demonstrate similar qualities of independence and impartiality to the courts."^[118]
4.93      The Leggatt report recommended that the Lord Chancellor should eventually assume responsibility for all tribunals. The report argued that the Lord Chancellor's responsibilities do not give rise to tribunal cases, and that the Lord Chancellor is already responsible for the appointment of most tribunal members and has extensive experience of managing the courts.^[119] The Government's announcement of the unified Tribunals Service has indicated that transfer to the Lord Chancellor's Department (now the Department for Constitutional Affairs) is the way forward for tribunals. Of the project tribunals, the Lands Tribunal and the Adjudicator are the responsibility of the Department for Constitutional Affairs, the Agricultural Land Tribunals and the Commons Commissioners that of the Department for Environment, Food and Rural Affairs and the RPTS tribunals and Valuation Tribunals that of the Office of the Deputy Prime Minister.^[120]
4.94      We agree that it is important that tribunals are perceived by users to be independent. The Leggatt approach of attempting to achieve this perception of independence through transfer of responsibility to the Lord Chancellor's Department seems a commendable solution. In any event, if the project tribunals were unified as we propose, the two reformed tribunals would need to be the responsibility of a single Government department. We therefore recommend that ministerial responsibility for a PVT and a reformed Lands Tribunal should rest with the Lord Chancellor.

Implications of the new structure for Wales

4.95      The Leggatt report recommended that the Tribunals System should include all tribunals whose jurisdiction covers England, England and Wales, Great Britain and the UK.^[121]
4.96      The administration of the Leasehold Valuation Tribunal, the Rent Assessment Committee, the Rent Tribunal, the Agricultural Land Tribunal and the Valuation Tribunal as they operate in Wales has been devolved to the National Assembly for Wales. The administration of the Lands Tribunal, the Commons Commissioners and the Adjudicator has not been devolved. Our terms of reference relate to England only. Our recommendations for the reforms proposed above therefore do not extend to Wales.
4.97      Coincidentally, the devolved project tribunals are the same as those tribunals which we have recommended should be unified as a PVT. If our proposals were accepted by the Government, there would be a unified PVT in England. In Wales, the Leasehold Valuation Tribunal, the Rent Assessment Committee, the Rent Tribunal, the Agricultural Land Tribunal and the Valuation Tribunal would not be unified in this way. These tribunals would operate as discrete entities in Wales, administered by the National Assembly for Wales.
4.98      As they are not devolved, the Lands Tribunal, Commons Commissioners and Adjudicator function across England and Wales, administered centrally by the United Kingdom Government. If our proposals were accepted, in English cases the Lands Tribunal would operate as the reformed Lands Tribunal discussed in this report. In relation to Welsh cases, the Lands Tribunal, Commons Commissioners and Adjudicator would work as they currently do in Wales.
4.99      We consider it particularly undesirable that the Lands Tribunal may have to constitute itself as the old style Lands Tribunal to hear Welsh appeals, rather than constituting itself as the reformed Lands Tribunal. The new model for the Lands Tribunal is different in several respects to the Lands Tribunal as it operates now. For example, our scheme proposes the standardisation of the permission requirement and the ability to transfer cases to the PVT. In England, the reformed Lands Tribunal would function as the single route of appeal for all jurisdictions within the PVT whereas in Wales some appeals would still lie to the High Court.
4.100      We think that the benefits of our proposed system should extend to the project tribunals as they operate in Wales. We recommend that the National Assembly for Wales should consider adopting or joining in a unified tribunal structure.

Note 1    Land, Valuation and Housing Tribunals, Consultation Paper No 170.    [Back]

Note 2    See Consultation Paper No 170, Part III.    [Back]

Note 3    Of the 15 consultees who raised the issue, 11 did not think the distinction between these two types of tribunals was an important one, with one consultee saying the issue did not arise for them.     [Back]

Note 4    For example, the Royal Institution of Chartered Surveyors said that “to preserve the status quo is not an acceptable proposition in the face of shared concerns over the transparency of and access to the tribunals as currently administered.” The senior judiciary said that “as matters presently stand, the exceedingly complex network of tribunals in the areas covered by the consultation paper is a source of confusion to the trained lawyer, let alone the layman.”    [Back]

Note 5    There would be, however, additional provision in our model for particularly complex cases which enter the system at the PVT level to be transferred to the Lands Tribunal where appropriate. See paras 5.55 – 5.60.     [Back]

Note 6    We do not have precise figures, but the Lands Tribunal has told us that as at June 2003, first instance cases received this calendar year represent over 80% of the total. The Lands Tribunal estimates that at least 75% of judicial time is spent on first instance cases.    [Back]

Note 7    Leggatt report Part II, Lands Tribunal section, para 3.    [Back]

Note 8    For example, the Country Land and Business Association told us that “the Lands Tribunal is highly respected as expert, efficient and fair by users.”    [Back]

Note 9    Leggatt report, para 6.11.    [Back]

Note 10    See the Leggatt report, Chapter 6, Table C, which sets out the proposed structure.     [Back]

Note 11    See para 4.11 above.    [Back]

Note 12    Leggatt report, para 6.11.    [Back]

Note 13    See Housing Bill – Consultation on draft legislation (2003) Cm 5793. The Bill gives jurisdiction for the resolution of disputes to the courts, but some disputes might be suitable for resolution by a unified PVT. This possibility is raised in the consultation document, which invites consultees to comment on whether appeals on housing conditions and licensing should be heard by the county courts or the Residential Property Tribunal Service. See the Housing Bill consultation document, p 20.     [Back]

Note 14    Leasehold Valuation Tribunals are given new jurisdictions under the Act in relation to leasehold property. Disputes relating to commonhold are at present within the jurisdiction of the courts. Transfer of these jurisdictions to a tribunal is possible by virtue of s 66(3) of the Act, which states that a power to confer jurisdiction on a court includes power to confer jurisdiction on a tribunal.     [Back]

Note 15    See the Common Land Policy Statement, published by the Department for Environment, Food and Rural Affairs in July 2002. The proposed new jurisdictions for the Commons Commissioners are to make orders to de-register land, ordering unclaimed common land to be vested in a local authority, to inquire into claims of ownership of common land and to inquire into the ownership of town and village greens.     [Back]

Note 16    See also Report of the Committee on Administrative Tribunals and Enquiries (1957) Cmnd 218 (the Franks Report), para 139. The Franks Report, although having some reservations about the amalgamation of tribunals, stated that “we recommend that whenever it is proposed to establish a new tribunal consideration should first be given to the possibility of vesting the jurisdiction in an existing tribunal.”     [Back]

Note 17    Lands Tribunal Act 1949, s 4 expressly provides for power to add to the jurisdiction of the Lands Tribunal. For a list of the jurisdictions that have been added to the Lands Tribunal over time, see Consultation Paper No 170, Appendix E.     [Back]

Note 18    The experts in the RPTS tribunals are surveyors and valuers. Lay members also sit in the RPTS tribunals. The wing members in the Agricultural Land Tribunals do not necessarily have qualifications which mark them out as experts, but are chosen for their expertise in agriculture.     [Back]

Note 19    See the Council on Tribunals Annual Report 2001/2002. The data relates to England only (and not Wales). Although the Agricultural Land Tribunal heard only 31 cases in 2001/2002, 296 cases were pending.     [Back]

Note 20    Written Answer, Hansard (HL) 11 March 2003, col WA168. The Government’s announcement is discussed at para 1.5 above.    [Back]

Note 21    Appeal from the Valuation Tribunal is to the Lands Tribunal in non-domestic rates and drainage rates cases. In relation to non-domestic rates see the Non-Domestic Rating (Alteration of Lists and Appeals) Regulations 1993 (SI 1993 No 291), reg 47(1) and the Non-Domestic Rating (Chargeable Amounts) (England) Regulations 1999 (SI 1999 No 3379), reg 37(4). In relation to drainage rates, see the Land Drainage Act 1991, s 46(6) and the Land Drainage Act 1976, s 79(5). Appeals from the Leasehold Valuation Tribunal are to the Lands Tribunal under the Commonhold and Leasehold Reform Act 2002, s 175.     [Back]

Note 22    See para 4.22 footnote 13 above.    [Back]

Note 23    Housing Bill, cl 75. See Housing Bill – Consultation on draft legislation (2003) Cm 5793.    [Back]

Note 24    See para 4.27 above.    [Back]

Note 25    Non-Domestic Rating (Alteration of Lists and Appeals) Regulations 1993 (SI 1993 No 291), reg 4A and reg 12 and the Council Tax (Alteration of Lists and Appeals) Regulations 1993 (SI 1993 No 290), reg 5 and reg 13. The relevant time period is six months in council tax cases and three months in non-domestic rating cases. In relation to non-domestic rates, the Valuation Office Agency has from 1 April 2000 introduced a “programming” system which shows ratepayers the time frame within which they expect to deal with proposals. The Valuation Office Agency’s 2005 Rating Revaluation “Right First Time” initiative may reduce appeals. For further information on this initiative see David Hudson, “Don’t play politics with the rates” (2003) EG 107.    [Back]

Note 26    See the Leggatt report, Part II, Valuation Tribunals section, para 2.    [Back]

Note 27    Council on Tribunals Annual Report 2001/2002.    [Back]

Note 28    Leggatt report, Part II, Valuation Tribunals section, para 6.    [Back]

Note 29    The General Commissioners of Income Tax are similar to the Valuation Tribunals in that members are unpaid and there are no qualification requirements for members. The Government’s consultation paper on tax tribunals questions whether some of the work now handled by General Commissioners needs to be heard by a panel including a lawyer. See Tax Appeals Consultation Paper (Lord Chancellor’s Department, March 2000), Question 5 and following text.     [Back]

Note 30    Consultation Paper No 170, para 5.16.     [Back]

Note 31    Non-Domestic Rating (Alteration of Lists and Appeals) Regulations 1993 (SI 1993 No 291) and the Non-Domestic Rating (Chargeable Amounts) Regulations 1994 (SI 1994 No 3279).    [Back]

Note 32    Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations (SI 1989 No 1058), reg 12.    [Back]

Note 33    The jurisdiction for disputes about liability comes from the Local Government Finance Act 1992, s 16. The jurisdiction for disputes about the content of valuation disputes comes from the Council Tax (Alteration of Lists and Appeals) Regulations 1993 (SI 1993 No 290).    [Back]

Note 34    Local Government Bill, cl 71 confers jurisdiction on the Valuation Tribunal (as amended on report in the House of Lords on 17 July 2003).    [Back]

Note 35    Local Government Finance Act 1988, Sched 9 para 5, as amended.    [Back]

Note 36    These “old rates” cases are the residual jurisdiction of the old Local Valuation Courts, which was transferred to the Valuation Tribunal by the Valuation and Community Charge (Transfer of Jurisdiction) Regulations 1989 (SI 1989 No 440).    [Back]

Note 37    A full list of the Lands Tribunal’s first instance jurisdictions can be found in Consultation Paper No 170, Appendix E, Part II.    [Back]

Note 38    LT ref ACQ/191/2000.    [Back]

Note 39    LT ref ACQ/69/2001.    [Back]

Note 40    This jurisdiction arises under the Law of Property Act 1925, s 84.     [Back]

Note 41    See, for example, Marcello Development Ltd’s Application [2002] RVR 146.    [Back]

Note 42    LT ref LCA/139/2001.    [Back]

Note 43    See the Lands Tribunal Rules 1996 (SI 1996 No 1022), r 28.     [Back]

Note 44    Leggatt report, paras 6.8 and 6.9.    [Back]

Note 45    Of the 26 consultees who discussed the issue, 24 thought that there should be a single route of appeal from the first tier project tribunals.     [Back]

Note 46    The Inland Revenue said that “it is odd that non-domestic rating appeals generally proceed from local Valuation Tribunals to the Lands Tribunal by way of a rehearing, whilst council tax appeals proceed from the local Valuation Tribunals direct to the High Court on a point of law only.” The Residential Property Tribunal Service “would welcome the creation of a common route of appeal for all jurisdictions dealt with by the RPTS.”    [Back]

Note 47    Consultation Paper No 170, para 4.24.    [Back]

Note 48    Of the 24 consultees who thought there should be a single route of appeal, 17 expressed a clear preference that this should be to the Lands Tribunal.    [Back]

Note 49    Paragraph 4.38.    [Back]

Note 50    These jurisdictions are those conferred by the following legislation: Local Government Finance Act 1988, s 23; Local Government Finance Act 1992, s 16; Local Government Finance Act 1992, Sched 3 para 3(1); Council Tax (Alteration of Lists and Appeals) Regulations 1993 (SI 1993 No 290), reg 8(3); Council Tax (Alteration of Lists and Appeals) Regulations 1993 (SI 1993 No 290) reg 13; Local Government Finance Act 1988, Sched 4A para 4(1) together with Local Government Finance Act 1992, s 17. See Consultation Paper No 170, Appendix I for further details.    [Back]

Note 51    Leggatt report, paras 6.17 – 6.26.    [Back]

Note 52    Leggatt report, para 6.20.    [Back]

Note 53    Leggatt report, para 6.26.    [Back]

Note 54    Leggatt report, para 6.26. The purpose of the Tribunals Board which the Leggatt report recommended is to act as the council directing the Tribunals System. The report recommended that the Board should comprise the chief personnel in the Tribunals System and should be responsible for matters including qualifications for chairs and members, overseeing the appointment of members and co-ordinating training. On the Tribunals Board, see further the Leggatt report, para 6.40.    [Back]

Note 55    Leggatt report, para 6.25.    [Back]

Note 56    For example, the Lands Tribunal said that the jurisdiction of the Commons Commissioners and the Adjudicator are so specialist that it would not be appropriate for ordinary members of first tier tribunals to hear cases within these jurisdictions. The senior judiciary said that the Adjudicator will perform a highly specialised role in the regulation of dealings in land, and that the proposed route of appeal from a unified first tier tribunal would not be appropriate. The senior judiciary did not think that either the Commons Commissioners or the Adjudicator should be brought within a unified first tier tribunal.     [Back]

Note 57    Commons Registration Act 1965, s 6(1).    [Back]

Note 58    See Commons Registration Act 1965, s 22(1). This section has now been amended by the Countryside and Rights of Way Act 2000, s 98(3). This essentially relaxed the definition of a town or village green.     [Back]

Note 59    [2001] All ER 381 (Chancery Division). The amendments to the Commons Registration Act 1965 brought in by the Countryside and Rights of Way Act 2000 do not affect this case as the original decision was taken before that Act came into force.    [Back]

Note 60    The question has previously arisen of whether the relevant period is 20 years immediately preceding either the passing of the Act or the application for registration of the right. In Windsor Corpn v Mellor [1975] 1 Ch 380, the Court of Appeal stated that it referred to 20 years user before the passing of the Act.     [Back]

Note 61    [2001] 1 AC 335. This case does not directly concern the Commons Commissioners, as the application for registration was made after the date of 2 January 1970, and therefore the Commons Commissioners did not have initial jurisdiction. One of the important issues decided in the Sunningwell case related to use “as of right” for the prescriptive establishment of village greens. On this see also R (on the application of Beresford) v Sunderland CC [2001] EWCA Civ 1218; [2002] QB 874 (Court of Appeal).    [Back]

Note 62    Land Registration Act 2002, s 73.    [Back]

Note 63    The Adjudicator will have a new jurisdiction to decide disputes about network access agreements. In addition, the Land Registration Act 2002 makes some substantive changes to registered property law which will mean that the Adjudicator’s jurisdictions will differ substantively to a certain extent.     [Back]

Note 64    See, for example, Land Authority for Wales v R M Williams, D L Prothero and O K Parker (June 1998, appealed to the High Court on the question of costs); Glover and Glover v Hiles (June 1998); D C Smith v R F Underwood and J M Underwood (June 1999).    [Back]

Note 65    See J E Ludlow and S P Ludlow v Mayo Land Co Ltd (October 2002);Brierley v Wroe; Jack Adams v the Trustees of the Michael Batt Charitable Trust (October 2000), appealed to the High Court, reported at [2001] 2 EGLR 92.    [Back]

Note 66    Jack Adams v the Trustees of the Michael Batt Charitable Trust (October 2000). Appealed to the High Court, reported at [2001] 2 EGLR 92.    [Back]

Note 67    C H Gibson and B J Gibson v I H Carnegie and J H Carnegie (Land Registry transcript).     [Back]

Note 68    Williams v Bateman (Land Registry transcript).    [Back]

Note 69    Especially cases relating to adverse possession. For a notable adverse possession case in the courts see J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419; [2002] UKHL 30.     [Back]

Note 70    See, for example,Marcello Development Ltd’s Application [2002] RVR 146; Adnan Azfar’s Application LT ref LP/10/2000.    [Back]

Note 71    Lands Tribunal Act, s 3.     [Back]

Note 72    Commons Registration Act 1965, s 18; Land Registration Act 2002, s 111.    [Back]

Note 73    This case is Llangenith Manors Ltd v Chief Commons Commissioner [2001] All ER 381 (Chancery Division), discussed at para 4.51 above.     [Back]

Note 74    Telephone conversation with HM Land Registry. Five appeals were against decisions made following a hearing and one was against a decision to impose a sanction for failure to comply with directions given in preparation for a hearing.    [Back]

Note 75    Commons Registration Act 1965, s 18(1).    [Back]

Note 76    See Land Registration Act 2002, s 111(1) and s 111(2). For appeals relating to the Land Registry Network, see Land Registration Act 2002, Sched 5 para 4. The reason for the different bases of appeal is set out in Land Registration for the 21st Century: A Conveyancing Revolution (2001) Law Com No 271, para 16.23(2) which states that appeals in relation to the Land Registry Network are second appeals, and it is not considered appropriate to permit unlimited rights to make a second appeal.     [Back]

Note 77    Land Registration for the 21st Century: A Conveyancing Revolution (2001) Law Com No 271, para 16.23(1).    [Back]

Note 78    Girls Day School Trust (1872) v Dadak [2002] 1 P&CR 4; [2001] EWCA Civ 380. Permission was required as the Lands Tribunal Act, s 3(4) did not specifically state whether permission was required or not, and it therefore could not amount to a statutory provision excluding Lands Tribunal cases from the normal rule under the Access to Justice Act, s 54(1) that permission was required.     [Back]

Note 79    See Access to Justice Act 1999, s 55 and CPR 52.13(2) which state that in second appeals the appeal cannot be heard unless the appeal would raise an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it. Although this section does not apply to appeals from tribunals, the stricter test for permission was applied to an appeal from an expert tribunal (a Social Security Commissioner) in Cooke v Secretary of State for Social Security [2002] 3 All ER 279; [2001] EWCA Civ 734.    [Back]

Note 80    Commonhold and Leasehold Reform Act 2002, s175(2). Permission can be granted either by the Leasehold Valuation Tribunal or by the Lands Tribunal. Note that the current permission requirements are different pending the coming into force of the Commonhold and Leasehold Reform Act 2002.     [Back]

Note 81    The Access to Justice Act, s 54 enables rules of court to provide that any right of appeal to a county court, the High Court and the Court of Appeal may be exercised only with permission. By CPR 52.3(1), permission to appeal is required for all appeals from the decision of a judge in a county court or the High Court (with a couple of exceptions that do not need to be discussed here). By CPR 52.3(6), permission to appeal will only be given where the court considers the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard.     [Back]

Note 82    SI 1996 No 1022.    [Back]

Note 83    See Practice Direction 5.6.     [Back]

Note 84    Consultation Paper No 170, para 4.26.    [Back]

Note 85    Leggatt Report, para 6.12.    [Back]

Note 86    Hansard (HC) 28 February 1949, vol 462, col 41.     [Back]

Note 87    In a meeting of the land, valuation and housing tribunals advisory group. On the advisory group, see further para 1.4.    [Back]

Note 88    The High Court has jurisdiction under the Valuation and Community Charge Regulations 1989 (SI 1989 No 439). Regulation 51 confers jurisdiction in respect of council tax decisions made under the Local Government Finance Act 1992, s 16 and Sched 3 para 3(1) and the Local Government Finance Act 1988 Sched 4A para 4. The High Court also has appellate jurisdiction under the Council Tax (Alteration of Lists and Appeals) Regulations 1993 (SI 1993 No 290), reg 32, in respect of appeals made pursuant to regs 8(3) and 13. The primary legislation is the Local Government Finance Act 1988, Sched 11 para 11.    [Back]

Note 89    Non-Domestic Rating (Alteration of Lists and Appeals) Regulations 1993 (SI 1993 No 291), reg 47(1) and Non-Domestic Rating (Chargeable Amounts)(England) Regulations 1999 (SI 1999 No 3379), reg 37(4). These regulations were made under the Local Government Finance Act 1988, Sched 11 para 11(1)(b).    [Back]

Note 90    Information from Lands Tribunal consultation response.    [Back]

Note 91    We do not make any specific recommendations in this report about the issue of fees in tribunals. For a discussion of fees and costs, see paras 5.65 – 5.68.    [Back]

Note 92    CPR 52.11(1) and 52.11(2).    [Back]

Note 93    See Ryde on Rating and the Council Tax (1996) para F[354] in relation to non-domestic rating appeals from the Valuation Tribunal. In relation to appeals from the Leasehold Valuation Tribunal, see the Lands Tribunal’s Practice Direction 5.8, which states that the Lands Tribunal will treat the appeal as a fresh hearing of the issues to which the application to the Leasehold Valuation Tribunal gives rise, except where permission has been granted on conditions that limit the appellant to particular grounds.    [Back]

Note 94    Information provided by the Lands Tribunal.    [Back]

Note 95    Information provided by the Lands Tribunal.    [Back]

Note 96    See Verkan and Co v Byland Close (Winchmore Hill) Ltd [1998] 28 EG 118 (LT) in which it was said that the Lands Tribunal should be reluctant to interfere with the decision of a competent Leasehold Valuation Tribunal on facts for which they have the specialist local knowledge unless there is a dispute as to law or of valuation principle.     [Back]

Note 97    Non-Domestic Rating (Alteration of Lists and Appeals) Regulations (SI 1993 No 291), reg 47(5).    [Back]

Note 98    Commonhold and Leasehold Reform Act 2002, s 175(3).    [Back]

Note 99    CPR 52.10(1) and 52.10(2).    [Back]

Note 100    Leggatt report, recommendation 106.    [Back]

Note 101    Leggatt report, recommendation 107.    [Back]

Note 102    Although we do not have exact figures, we understand from the tribunals themselves that judicial review of the project tribunals is very rare in practice. Christopher Rodgers, Agricultural Law (2nd ed 1998), para 17.33 states that in the Agricultural Land Tribunal “the remedy by way of application for judicial review is rarely invoked in practice.”    [Back]

Note 103    Permission is required by CPR 54.4.    [Back]

Note 104    De Smith, Woolf and Jowell, Judicial Review of Administrative Action (5th ed 1995) p663, para 15-015.     [Back]

Note 105    In re Preston [1985] AC 835, 851 per Lord Scarman: “a remedy by way of judicial review is not to be made available where an alternative remedy exists. This is a proposition of great importance.” See also R v Secretary of State for the Home Department ex parte Swati [1986] 1 All ER 717, 723 per Sir John Donaldson MR, and R v Sandwell MBC ex parte Wilkinson [1999] 31 HLR 22, per Laws J.    [Back]

Note 106    See also the Leggatt report, para 6.35.    [Back]

Note 107    See also the Leggatt report, para 6.30, which noted that judicial review has more complicated procedures and more limited remedies.     [Back]

Note 108    Leggatt report, para 6.32.    [Back]

Note 109    Leggatt report, para 6.32.    [Back]

Note 110    We have not recommended any change to the present qualification requirements for the President of the Lands Tribunal. See para 5.14 below.    [Back]

Note 111    Leggatt report, Part II, Lands Tribunal section, para 1.    [Back]

Note 112    This power relates to cases arising from objections to applications under Land Registration Act 2002, s 73(7).     [Back]

Note 113    Adjudicator to Her Majesty’s Land Registry (Practice and Procedure) Rules: a consultation on draft rules, Lord Chancellor’s Department (April 2003). See draft rules 8 and 9.     [Back]

Note 114    Land Registration for the 21st Century: A Conveyancing Revolution (2001) Law Com No 271.    [Back]

Note 115    Land Registration for the 21st Century: A Conveyancing Revolution (2001) Law Com No 271. See para 16.20.    [Back]

Note 116    See para 6.61 below.    [Back]

Note 117    See para 3.23 above.    [Back]

Note 118    Leggatt report, para 2.18.    [Back]

Note 119    Leggatt report, para 2.25.    [Back]

Note 120    Note that a non-departmental public body, the Valuation Tribunal Service, is established by the Local Government Bill, clauses 104 – 105 and Sched 4 (as amended on report in the House of Lords on 17 July 2003).     [Back]

Note 121    Leggatt report, para 11.4.    [Back]