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You are here: BAILII >> Databases >> The Law Commission >> LAND, VALUATION AND HOUSING TRIBUNALS (A Consultation Paper) [2002] EWLC 170(4) (12 December 2002) URL: http://www.bailii.org/ew/other/EWLC/2002/170(4).html Cite as: [2002] EWLC 170(4) |
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Part IV
Options for Structural Reform
(1) Option 1: essentially retain the current system, but restructure some elements of it by creating a common appeal route for all LVH tribunals, rationalising the structure of the Lands Tribunal and unifying the RPTS tribunals.
(2) Option 2: create an amalgamated LVH tribunal system with a single first instance tribunal. In this option, although the present tribunals would no longer exist in law, they would to some extent be reflected in the administrative allocation of cases within the amalgamated tribunal. There would be a single appeals body. This option represents a “half way house” between option 1 and option 3.
(3) Option 3: create a completely unified LVH tribunal system with a single first instance tribunal. In this option, the first instance tribunal would have jurisdiction to determine all land, valuation and housing matters without consideration of the divisions between the present LVH tribunals. The present tribunals would not be reflected in the administrative allocation of cases. There would be a single appeals body.
4.7 One possibility is of course to retain the current LVH tribunal system in its entirety, subject to any changes made to the tribunals’ jurisdictional remits as a result of the removal of any unnecessary jurisdictional overlaps with the courts.[1] Some may argue that maintaining the status quo may be the best way forward if the areas of difficulty which we have identified do not in fact cause problems or if reform would create unnecessary practical difficulties. The disadvantage of retaining the current structure is, however, a missed opportunity to reform the LVH tribunals within the context of the wider reform prompted by the Leggatt Review.
4.9 The LVH tribunals deal both with disputes between the citizen and the state and those between private parties. In line with the terminology used in the Leggatt Review, we refer to these respectively as “citizen and state” and “party and party” disputes. The Leggatt Review discusses the separation of these two types of dispute. The Review notes that disputes between private parties are qualitatively different from those between citizens and the state. According to the Leggatt Review, party and party disputes are more likely to be adversarial in nature. Tribunal staff will probably be involved with case management to a greater extent in disputes between parties, and different administrative procedures will be needed.[2]
4.10 The dividing line between the two types of dispute is not always a clear one. For example, the Rent Assessment Committee has jurisdiction to confirm or vary the determination of the rent officer under the Rent Act 1977.[3] As the Rent Assessment Committee is reviewing the decision of a public authority, that is the rent officer, this could be viewed as a citizen and state, or public law, dispute. Alternatively, it could be seen as essentially a private dispute between two parties, in other words the landlord and the tenant, as to the correct amount of fair rent.
4.11 We have categorised the LVH tribunals as follows.
(1) Leasehold Valuation Tribunal.
(2) Rent Tribunal.[4]
(3) Rent Assessment Committees.[5]
(4) Agricultural Land Tribunal.
(5) The adjudicator to HM Land Registry.[6]
(1) The Commons Commissioners.
(2) Valuation Tribunal.
(1) final determination of rateable values under section 37(5) of the Landlord and Tenant Act 1954 for the purpose of calculating compensation payable by the landlord under that Act,
(2) apportionment of rentcharges under section 6 of the Rentcharges Act 1977 and
(3) resolution of disputes relating to rights of way over common land under regulation 10 of the Vehicular Access Across Common and Other Land (England) Regulations 2002.[8]
4.13 A point that consultees might want to bear in mind when considering our options is the extent to which each option provides opportunities for the use of Alternative Dispute Resolution (“ADR”). The Leggatt Review states that there may be scope for ADR to be used in the work of the LVH tribunals as “mediation has a proven record of efficacy in cases involving a number of parties with conflicting interests, and that is a common feature of leasehold disputes before the Leasehold Valuation Tribunal and the county courts.” The Leggatt Review therefore suggests that the Law Commission’s consideration of the LVH tribunals should examine the scope for the use of formal and informal ADR procedures.[9]
4.14 The Leggatt Review points out the benefits of ADR. The Review states that ADR can be particularly helpful when parties want to maintain good relations following a dispute. It can provide a chance in citizen and state disputes for regulators and applicants to discuss their differences in relation to complex statutory schemes. ADR provides scope for negotiation rather than resulting in a “win” or “lose” situation, and can reduce the number of contested cases.[10]
4.16 A different type of ADR, arbitration, is already a possible means of dispute resolution for some land and property disputes. Arbitration is a binding method of dispute resolution in which the appointed arbitrator issues an award that is enforceable in the courts. The Lands Tribunal has jurisdiction to act as an arbitrator under section 1(5) of the Lands Tribunal Act 1949. We understand that this power is usually used in disputes concerning the value of land under agreements for the sale of land to authorities which have compulsory purchase powers.[11] There is provision in the Agricultural Holdings Act 1986 for the use of an arbitrator to resolve certain disputes over agricultural holdings.[12] Arbitration is the prescribed means of dispute resolution under the Agricultural Tenancies Act 1995 for most disputes regarding farm business tenancies.[13]
4.18 We now turn to look in detail at our three suggested options for reform.
4.20 At present appeals from the various LVH tribunals are either to the Lands Tribunal or to the High Court. The Lands Tribunal exercises an appellate jurisdiction over all decisions of the Leasehold Valuation Tribunal.[14] It also has appellate jurisdiction over the following decisions from the Valuation Tribunal: non-domestic rates,[15] drainage rates[16] and “old rates”. 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.[17]
4.21 The High Court has appellate jurisdiction over decisions of the Rent Tribunal and the Rent Assessment Committees,[18] as well as decisions of the Commons Commissioners[19] and the Agricultural Land Tribunal.[20] It also has appellate jurisdiction over community charge and council tax decisions from the Valuation Tribunals.[21]
4.22 The Valuation Tribunal additionally has an internal review mechanism which enables it to review decisions on the application of one of the parties to the original appeal. The grounds for this review are clerical error, that the party did not appear at the original hearing but can show reasonable grounds why he did not do so, or that the Valuation Tribunal decision is affected by a decision of the High Court or the Lands Tribunal. This internal review mechanism cannot be used once an appeal has been made to the Lands Tribunal or the High Court.[22]
4.23 Appeal from the Lands Tribunal is to the Court of Appeal on a point of law.[23]
4.24 To create a coherent system and one which is readily comprehensible to users, we provisionally take the view that there should be one clearly defined common appeal route from all the LVH tribunals. In line with the proposals of the Leggatt Review,[24] this common appeal route would most rationally be a system of appeals to the Lands Tribunal rather than to the High Court. A change of name may be desirable, for example, “the Land, Valuation and Housing Appeal Tribunal”[25] or the “Property Appeal Tribunal”. Some training and drafting in of extra expertise may be necessary at the outset to ensure that Lands Tribunal members were able to deal with the added jurisdictions.
4.26 Appeals to the High Court are on a point of law only. Appeals to the Lands Tribunal are not confined to questions of law. The recommendation in the Leggatt Review is for a single right of appeal from all tribunals on a point of law only.[26] We welcome the views of consultees on whether, in our suggested new appeals structure, an appeal to the Lands Tribunal should be a rehearing on the facts, an appeal on a point of law only, or whether the type of appeal should vary depending on the type of hearing that took place at first instance. It seems to us that a key factor is what type of members heard the case at first instance. Cases may be heard by lawyers, by other experts such as valuers or surveyors or by lay members, that is those with no legal or other technical expertise. If a case was originally heard by lay members, there is perhaps more of an argument that an appeal should be a complete rehearing before a panel of experts in the Lands Tribunal. On the other hand, if an appeal is heard as a rehearing on the facts of the case, this may call into question the point of having the first instance hearing at all. Our provisional view is that appeals from decisions of lay tribunals should be heard as a rehearing on the facts whereas appeals from expert tribunals should be appeals on a point of law only.
4.27 In our suggested appeals system, applicants would be able as now to appeal from the Lands Tribunal to the Court of Appeal and further, subject to the granting of permission. The Leggatt Review states that it would be to users’ benefit to use a reformed comprehensive and systematic appeal system rather than the more limited remedies of judicial review, and that the possibility of judicial review should therefore be excluded. We provisionally agree that judicial review should be excluded for the LVH tribunals in a similar way. [27]
4.28 We have provisionally proposed that there should be a single appeal route from all LVH tribunals and that this should be to the Lands Tribunal.[28] If the Lands Tribunal were to become the single appellate body for all LVH tribunals, this would provide a strong incentive for considering the rationalisation of the tribunals’ jurisdictions. However, even within the current system it is worth considering which types of cases the tribunal should properly deal with.
4.29 The Lands Tribunal currently has jurisdiction over both appellate and first instance cases. In this section we discuss two types of first instance jurisdiction which could be dealt with by the Lands Tribunal. We use the terms “original” and “transferred” jurisdiction to distinguish these two types of first instance jurisdiction. By original jurisdictions we mean those which statute (or statutory instrument) states are within the jurisdiction of the Lands Tribunal to decide at first instance. These include, for example, the Lands Tribunal’s first instance jurisdiction to determine compensation disputes under the Land Compensation Act 1973, compulsory purchase disputes under the Compulsory Purchase Act 1965 and matters relating to the discharge and modification of restrictive covenants under section 84 of the Law of Property Act 1925.[29] We use “transferred” jurisdiction to denote first instance disputes which are in fact usually within the jurisdiction of other LVH tribunals, but which could be referred to the Lands Tribunal if to do so would be advantageous in terms of expertise or because the Land Tribunal’s procedures would be more appropriate. For example, a case which was within the jurisdiction of the Leasehold Valuation Tribunal could be transferred to be heard by the Lands Tribunal at first instance if it was of especially high value or was particularly complex.
4.30 We are not aware of any statutory procedure which enables the Lands Tribunal to exercise this transferred jurisdiction, but there is a rarely used procedure by which the Lands Tribunal can exercise a type of transferred jurisdiction in relation to the Valuation Tribunal. Instead of bringing a case before the Valuation Tribunal, parties may agree to refer the question to arbitration.[30] Parties also agree to appoint the Lands Tribunal as the arbitrator.[31] This can save parties intending to take a case before the Lands Tribunal the time and cost of a hearing before the Valuation Tribunal.
4.32 There is a disadvantage to this view. If most of the cases within any particular subject matter are very complex ones, the Lands Tribunal will be the only body which has expertise in this subject matter. This might argue for all cases within that subject area to be considered by the Lands Tribunal, whatever their level of complexity. For example, the Government has agreed with the Compulsory Purchase Policy Review Advisory Group (CPPRAG) that it makes sense to concentrate the determination of all compulsory purchase disputes within a single body with the relevant expertise and experience.[32]
4.34 As previously noted,[33] the RPTS tribunals are made up of the Leasehold Valuation Tribunal, the Rent Tribunal and the Rent Assessment Committee. To a large extent, these three tribunals already function as one unit. The tribunals now have a common legislative basis in Schedule 10 to the Rent Act 1977.[34] The tribunals all carry out similar work in the field of residential tenancies and share a common administration. In practice the workload of the Rent Tribunals has declined sharply and that of the Rent Assessment Committees is rapidly declining. The three tribunals within the RPTS tribunals could therefore be completely unified. The change would largely seem to be changes in nomenclature, possibly with some additional consequences relating to membership of the tribunal. Complete unification of the tribunals might also present further opportunities for some streamlining of their appeal routes and procedures. These two aspects are discussed below.
4.35 A unified tribunal should have one common route of appeal. At present, appeals from the Leasehold Valuation Tribunal are to the Lands Tribunal, whereas appeals from the Rent Tribunal and the Rent Assessment Committee are to the High Court.[35] This is not an issue if reform of the RPTS tribunals is tied into the creation of a common appeals route for all LVH tribunals.[36] If the unification of the RPTS tribunals is not tied into the reform of the appellate structure, our provisional view is that a unified RPTS tribunal should have a single route of appeal to the Lands Tribunal.
4.36 The implementation of a common set of procedures for a unified tribunal would largely be a matter for secondary legislation. The possibility of streamlining the RPTS tribunals’ current procedures is, however, a point to bear in mind when considering the overall viability of this option. The composition of each of the three tribunals is dealt with within the same piece of legislation.[37] Each tribunal has its own set of regulations regarding other procedural matters.[38] The procedures of the tribunals seem on paper to be fairly similar, although the Leasehold Valuation Tribunal has a wider range of case-management type powers.[39] We ask consultees whether any procedural differences are necessary, and whether the unification of the RPTS tribunals would be a useful opportunity to consider whether there could be any further streamlining of the tribunals’ procedures.
4.38 The jurisdiction of a single RPTS tribunal would be a combination of the jurisdictions now exercised by the Leasehold Valuation Tribunal, the Rent Tribunal and the Rent Assessment Committees, subject to any changes made to the tribunals’ jurisdiction as a result of this project.[40]
4.41 Broadly speaking, the jurisdictions currently exercised by the first instance LVH tribunals would all be transferred in law to one new large tribunal called, for example, “the Land, Valuation and Housing Tribunal”.[41] This tribunal would have regional offices. The tribunal would have a single administrative service to deal with all the administration relating to cases within its jurisdiction, called perhaps “the Land, Valuation and Housing Tribunal Service”. There would be one President in charge of the amalgamated tribunal and another President for the appeals tribunal.
4.47 This could work similarly to the way in which cases can be streamed under existing Lands Tribunal procedures. When cases come into the Lands Tribunal, they are allocated to one of four procedural streams. The first is the special procedure, used for cases which require a large degree of case management by a tribunal member because of their complexity. The second is the standard procedure in which case management is in the hands of the registrar and in which there is usually a lesser degree of case management. The third is the simplified procedure which aims to provide for the speedy and economical determination of cases in which no substantial issue of law or valuation practice, or substantial conflict of fact, is likely to arise, and which is often used where the amount at stake is small. It is a procedure in which costs are not awarded. The fourth is a written representations procedure which is used when, having regard to the issues in the case and the desirability of minimising costs, the tribunal is of the view that oral evidence and argument can properly be dispensed with.[42]
(1) The first instance jurisdictions of the existing tribunals are transferred to a single first tier LVH tribunal. Although the existing first instance tribunals no longer exist, they may be reflected to some degree in the administrative organisation of divisions. The Lands Tribunal is the sole appellate body for appeals from the new LVH tribunal.
(2) Applicants apply through a single administrative service. Cases are allocated to procedural streams on a discretionary basis by reference to a range of factors such as the jurisdictional issues raised, the degree of expertise required, the complexity of the case and the monetary value involved. A hierarchy of streams would be created for different types of case.
(3) The existing procedures and fee structures are adapted so as to reflect the allocative criteria referred to in (2) above. There would probably be more commonality of procedure than exists between the LVH tribunals that currently exist. The details of procedure would largely be a matter for secondary legislation.
(4) Tribunal members generally continue to exercise the same functions as they do at present, with the proviso that certain complex and/or important cases be dealt by a higher stream within the amalgamated tribunal structure.
4.52 This option is more flexible than option 1. In the soft-edged variant at least, cases could be dealt with in the most effective way without the restriction of jurisdictional issues as between the different individual tribunals. As the jurisdictions of the individual LVH tribunals have grown up in an ad hoc fashion, it may be that some jurisdictions would in fact be more appropriately be dealt with in a different tribunal to that which has jurisdiction for a particular matter.[43] This option also allows a large degree of flexibility in terms of procedure and case management. The specialist expertise of the tribunal members is retained as members would usually hear cases within their current areas of expertise. This option leaves open the possibility for future development towards a unified tribunal, as described in option 3, without undertaking such a radical move at this stage.
4.58 The following are the principal features of this option:
(1) The first instance jurisdiction of the existing tribunals is transferred to a single first tier LVH tribunal. The existing first instance tribunals are accordingly abolished. The Lands Tribunal becomes the sole appellate body for appeals from the new LVH tribunal.
(2) There is no allocation or streaming of cases by the single administrative body. There are no administrative divisions reflecting the existing LVH tribunals. Tribunals utilise case management in this powers in the same way as do ordinary courts and tribunals.
(3) A single set of procedures and fee structures is adopted for the new first instance tribunal. The exact procedures and fee structures may of course vary according to the type of dispute being heard.
(4) Tribunal members may deal with any dispute that arises before the new tribunal, but in practice a ticketing system would operate under which the expertise of different members would be matched to appropriate cases. The ticketing system may become less important over time, as members became experienced in different land, valuation and housing matters.
4.63 What practical problems have consultees noted with any of the options?
4.64 What would be the financial impact of these options?
[1]See Part V of this consultation paper.
[2]See the Leggatt Review, para 3.17.
[3]Schedule 11 para 9.
[4]With the possible exception of the slightly anomalous jurisdiction exercised by Rent Tribunals under the Housing Act 1985, s 389(1)(b) to determine compensation for possession of furniture under s 383 in default of agreement between the dispossessed proprietor and the local housing authority. This appears to have a predominantly public law flavour.
[5]The Rent Assessment Committee’s jurisdiction to confirm or vary the determination of the rent officer under the Rent Act 1977, Sched 11 para 9 has an element of a citizen and state dispute to it. It could be argued, however, that the dispute is in reality between two parties, ie the landlord and tenant, as to the amount of the fair rent. See para 4.10 above.
[6]The adjudicator’s jurisdiction will primarily be over party and party disputes, but will also cover appeals against decisions of the registrar regarding access the Land Registry Network, which are citizen and state based.
[7] A number of jurisdictions are not related to citizen and state disputes in the strict sense, eg the jurisdiction under the Electricity Act 1989, Sched 3 Part II para 9, which grants the Lands Tribunal power to determine disputes relating to compulsory purchase by electricity licence holders. We consider these types of dispute have a public law flavour. Bodies such as privatised utilities are here acting in place of the state, not as private parties.
[8]SI 2002 No 1711.
[9]Leggatt Review, para 8.22.
[10]Leggatt Review, para 8.19.
[11]This information is taken from a note on the Lands Tribunal’s jurisdictions posted on the Lands Tribunal’s website at www.courtservice.gov.uk/tribunals/lands.
[12]Schedule 11.
[13]See s 28. The parties can instead make their own ADR arrangements. The Act applies to farm business tenancies which were created after 1 September 1995.
[14]Commonhold and Leasehold Reform Act 2002, s 175. Although this section is not yet in force, it in fact only simplifies the legislative basis of the appeal route which already exists from the Leasehold Valuation Tribunal to the Lands Tribunal.
[15]See reg 47(1) of the Non-Domestic Rating (Alteration of Lists and Appeals) Regulations 1993 (SI 1993 No 291) and reg 37(4) of the Non-Domestic Rating (Chargeable Amounts)(England) Regulations 1999 (SI 1999 No 3379). These regulations were made under the Local Government Finance Act 1988, Sched 11 para 11(1)(b).
[16]See the Land Drainage Act 1991, s 46(6) and the Land Drainage Act 1976, s 79(5) (although this latter provision has been repealed by the Water Consolidation (Consequential Provisions) Act 1991, the savings therein allow for appeals to be made to the Lands Tribunal from the Valuation Tribunal exercising this jurisdiction).
[17]SI 1989 No 440. The enabling primary legislation is the Local Government Finance Act 1988, Sched 11 para 3. Appeals to the Lands Tribunal against the Valuation Tribunal’s decisions in “old rates” cases are saved by the General Rate Act 1967 and Related Provisions (Savings and Consequential Provision) Regulations 1990 (SI 1990 No 777), reg 3(1) and the Local Government Finance (Repeals, Savings and Consequential Amendments) Order 1990 (SI 1990 No 776).
[18]Tribunals and Inquiries Act 1992, s 11(1) and Sched 1, para 37.
[19]Commons Registration Act 1965, s 18(1).
[20]Agricultural (Miscellaneous Provisions) Act 1958, s 6.
[21]The High Court has jurisdiction under the Valuation and Community Charge Regulations 1989 (SI 1989 No 439). Regulation 32 confers jurisdiction in respect of community charge matters heard pursuant to the Local Government Finance Act 1988, s 23. 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.
[22]See the Valuation and Community Charge Tribunals Regulations 1989 (SI 1989 No 439), reg 49; the Non-Domestic Rating (Alteration of Lists and Appeals) Regulations 1993 (SI 1993 No 221), reg 45 and the Council Tax (Alteration of Lists and Appeals) Regulations 1993 (SI 1993 No 290), reg 30.
[23]Lands Tribunal Act 1949, proviso to s 3(4). By s 3(11) the court referred to in the proviso to s 3(4) is the Court of Appeal.
[24]Leggatt Review, paras 6.9–6.11 and Table C in chapter 6.
[25]The Leggatt Review suggests the name “Land and Valuation Appeal Tribunal”. See the Leggatt Review, Table C in chapter 6.
[26]Leggatt Review, para 6.12.
[27]Leggatt Review, paras 6.29 and 6.30, and recommendations 106 and 107.
[28]See para 4.24 above.
[29]A full list of the Lands Tribunal’s original first instance jurisdictions is set out in the Lands Tribunal appendix.
[30]Non-Domestic Rating (Alteration of Lists and Appeals) Regulations (SI 1993 No 291), reg 48.
[31]This jurisdiction is conferred by Lands Tribunal Act 1949, s 1(5).
[32]Compulsory Purchase and Compensation – the Government’s proposals for change (December 2001). See also the report of the Compulsory Purchase Policy Review Advisory Group (July 2000). Both of these documents are available on the website of the Office of the Deputy Prime Minister, at www.planning.odpm.gov.uk.
[33]See Part II of this consultation paper, para 2.8.
[34]By s 173 of the Commonhold and Leasehold Reform Act 2002 any jurisdiction conferred on a Leasehold Valuation Tribunal is exercisable by a Rent Assessment Committee in accordance with Sched 10 to the Rent Act 1977 and when so constituted it is known as a Leasehold Valuation Tribunal. By s 72 of the Housing Act 1980, Rent Tribunals are constituted as Rent Assessment Committees under Sched 10 of the Rent Act 1977 and when carrying out any of the functions of a Rent Tribunal, Rent Assessment Committees are known as Rent Tribunals. Leasehold Valuation Tribunals and Rent Tribunals are therefore categories of Rent Assessment Committees.
[35]See paras 4.20 – 4.21 above.
[36]See paras 4.20 – 4.27 above.
[37]Rent Act 1977, Sched 10.
[38]For the Rent Tribunal, see the Rent Assessment Committees (Rent Tribunal) Regulations 1980 (SI 1980 No 1700). For the Rent Assessment Committee, see the Rent Assessment Committees (England and Wales) Regulations 1971 (SI 1971 No 1065). For the Leasehold Valuation Tribunal, see the Rent Assessment Committee (England and Wales) (Leasehold Valuation Tribunal)Regulations 1993 (SI 1993 No 2408) as amended by the Rent Assessment Committee (England and Wales)(Leasehold Valuation Tribunal) (Amendment) Regulations 1997(SI 1997 No 1854). Schedule 12 of the Commonhold and Leasehold Reform Act 2002 contains power for new regulations to be made on the procedure of Leasehold Valuation Tribunals, but at the time of writing no such regulations have been made.
[39]These additional powers were granted by the Rent Assessment Committee (England and Wales) (Leasehold Valuation Tribunal) (Amendment) Regulations 1997 (SI 1997 No 1854).
[40]See Part V of this consultation paper.
[41]Subject to any overall change made to the jurisdictions. See Part V of this consultation paper.
[42]The written procedure and the simplified procedure are provided for by statutory instrument. See the Lands Tribunal Rules 1996 (SI 1996 No 1022), rules 27 and 28. Rule 48 states that subject to the Rules and to any direction by the President, the procedure at the hearing of any proceedings shall be such as the tribunal may direct. The Lands Tribunal’s Practice Direction 3.1 provides that every case will be allocated to one of the four procedures: the standard procedure, the special procedure, the simplified procedure or the written procedure. The Practice Directions are available at www.courtservice.gov.uk/tribunals/lands.
[43]It has been suggested, for example, that the Lands Tribunal’s jurisdiction relating to the discharge of restrictive covenants under s 84 of the Law of Property Act 1925 could be more suitably be placed within the jurisdiction of one of the RPTS tribunals. See Professor Alan Prichard, “New Jurisdictions for Rent Assessment Committees?” (1991) Conv 447.
