Land Court and right to appeal

I’ve noticed a distinct upturn in inquiries from clients who are aggrieved by a decision relating to agricultural subsidies and I thought it would be worthwhile looking at the procedures which have to be followed by someone who wants to appeal a decision which they think is wrong.

Appeals are governed by the Rural Payment (Appeals) (Scotland) Regulations 2015 which apply to appeals against decisions made by Scottish ministers in the application of various agricultural subsidy and other rural payment schemes.

The 2015 rules are a refinement of reforms made in 2009.

Under the previous procedure, appeals were dealt with internally by the department (known as Stage 1) with applicants having a right to a further review (known as Stage 2) by a review panel made up of independent members but also including a representative of the department.

The Scottish ministers could over-rule a finding in favour of the applicant at Stage 2. An applicant had a right to appeal a decision at Stage 2, or a decision by the minister over-ruling a Stage 2 decision, to the Scottish Land Court.

This procedure was the cause of much frustration and was extremely slow, with some cases taking several years to negotiate the whole process.

Only a very few appeals were successful at any stage.

The reformed procedure is subject to tighter time limits and is in only two stages – an internal appeal and then an appeal to the Land Court if the internal appeal is unsuccessful.

An internal appeal (or “application for review”) must be made not later than 60 days following the date of the decision letter.

The application for review must be in writing and must set out clearly why the applicant thinks that the decision is wrong.

The Scottish ministers must provide the applicant with an opportunity of being heard at a review meeting within 60 days of receiving the appeal.

They must intimate the date of the review meeting in writing. The review meeting may be conducted in person or by the use of telephone or video conference facilities.

The applicant is also entitled to be represented. The applicant can decline the opportunity of a hearing in which case the appeal will be dealt with on the written material.

The Scottish ministers can confirm, amend, alter or revoke their decision in its entirety and substitute a new decision.

The decision must be issued in a written report which must set out the decision, the requirements of the scheme in respect of which the claim was made, the facts relied upon by the Scottish ministers as showing that the requirements were not met and where appropriate the matters of fact and law which are understood to remain in dispute.

This written report must be sent by recorded delivery post to the applicant before the expiry of 60 days from the date of the review meeting.

The applicant is entitled to appeal to the Scottish Land Court against the Scottish ministers’ decision. The appeal must be made within 60 days of receipt of the written report.

The applicant is also entitled to appeal directly to the Scottish Land Court where the Scottish ministers have failed to issue their written report and decision within 60 days of the date of the review meeting and that appeal must be made within 60 days of the expiry of the time limit.

The Land Court has overturned the Scottish ministers’ decisions in a number of cases, often on the grounds that the ministers have mis-applied the European rules introducing the subsidy in question, and the court has more than proved itself as an effective overseer of Government decisionmaking.

The application for review must be in writing and must set out clearly why the applicant thinks that the decision is wrong