Upper Tribunal, Lands Chamber users’ group minutes 30 November 2021


1. Attendance

Attendance: Martin Rodger QC, Judge Elizabeth Cooke, Diane Martin MRICS, Mark Higgin FRICS, Peter McCrea FRICS, Donald Scannell and Susan Brady.

Judge Siobhan McGrath, Chamber President, First-tier Tribunal, Property Chamber.

Richard Honey QC, Justin Bates, Moira Hepworth, Michael Pearce, Dennis Broughton, Paul Tonkin, Jeremy Moody, Daniel Bazuaye, Tim Johnson, Toby Boncey, Amit Bansal, Sena Frimpong, Mark Loveday, Andrew Hetherton, Richard Asher.

2. Apologies

Apologies were received from the Chamber President, Caroline Shea QC and Mike Holland.

3. Minutes

The minutes of the meeting on 18 March 2021 were approved.

4. Matters arising

4.1 Resumption of face to face hearings and COVID-19 precautions

The Deputy President (DP) explained that face to face hearings continue to be preferred but that the Tribunal remains flexible over listing arrangements; it is less easy for hybrid hearings to be arranged because most RCJ courts are not equipped with the necessary facilities, but it may sometimes be possible with sufficient notice; some longer hearings have also been conducted with the evidence of certain witnesses being received virtually, but the remainder of the proceedings in person. Those attending face to face hearings are asked please to wear a mask.

4.2 Costs in the Tribunal

The DP thanked the Planning and Environmental Bar Association (and in particular Guy Roots QC and Tim Mould QC) for a paper they had prepared on the issue of whether the Tribunal should have power to award costs in CAAD appeals. Mark Loveday of the Tribunals Procedure Committee said that the TPC had found the PEBA paper very helpful and that the next TPC meeting would consider the issue. It was likely that a proposal for change would be going out for public consultation and the DP would circulate the consultation paper to the User Group when it becomes available. The TPC would welcome responses, in particular from those who wished to maintain the Tribunal’s current powers and who are against a rule change.

4.3 Pro bono representation in the Tribunal

The DP thanked Richard Honey QC for providing details of a proposed pro bono scheme for the Planning Court which might form a model for increased pro bono representation in the Tribunal in compensation cases. The DP reported that he had held a useful meeting with Advocate, the Bar pro bono service. The Tribunal intends now to adopt the approach taken by the Court of Appeal in appropriate cases of sign-posting Advocate’s services to unrepresented parties who might qualify for its assistance (particularly in appeals from the FTT).

5. Current volume of work

4.1 The DP provided an overview of the Tribunal’s workload. The Tribunal was currently busy and expecting next year to be very busy, with: compensation work resulting from some large public projects, including HS2, the Manchester Southern relief road and significant regeneration schemes in Redbridge and elsewhere; a very significant quantity of telecommunications work; and a large number of appeals from the First-tier Tribunal, Property Chamber, particularly concerning civil penalties for Housing Act offences and rent repayment orders. The one exception to the pattern of increasing workload was rating, where appeals from the Valuation Tribunal had declined almost to nothing during 2020-21 and were showing only very slow signs of recovering.

4.2 During the year to 31 March 2021 530 new cases had been filed and 609 had been disposed of. At the end of the year there were 459 cases awaiting determination.

During the half year from 1 April to 30 September 2021 352 new cases had been filed and 418 had been disposed of, leaving 383 cases awaiting determination.

A more detailed breakdown of receipts during the two periods (excluding applications dealt with administratively) is as follows:

Year to 30 March 2021 1 April 2021 to 30 September 2021
Applications for permission to appeal from the FTT 123 105
Appeals from the FTT 55 42
Appeals from the VTE 14 18
Discharge/modification of covenants applications 34 17
References 182 (including 106 Electronic Communications Code) 113 (75 Code)

4.3 A discussion followed concerning the low number of rating appeals and when the Tribunal might expect these to increase. Michael Pearce of the VOA did not expect any increase in the small number of appeals brought by Valuation Officers. Tim Johnson did not expect any great increase in 2022 but thought numbers may rise towards end of the year with the closure of the 2017 list. Andrew Hetherton said that transitional relief had reduced the number of appeals and thought there may be more appetite for 2023 list challenges as it may be easier to demonstrate changes in value in 2023; there were likely to be more 2017 list appeals close to deadline date.

6. CE-Filing

5.1 The DP explained that the Tribunal’s new digital case management and filing system had been in use for all new cases since October 2020, and all existing cases had been transferred to the platform in May 2021. Parties in cases of all types are now able to file new proceedings and make applications or file documents in existing proceedings using CE-File. Take up in some sectors had been good, particularly in compensation and telecommunications references, but it had been much slower in FTT appeals, rating appeals and covenant applications.

5.2 There was a short discussion on whether CE-Filing should be made mandatory for all represented parties filing material with the Tribunal, including commencing new case. A rule change would be likely to be required to achieve this. Mark Loveday said that compulsory e-filing was controversial in other tribunals for reasons concerning access to justice. The DP did not envisage unrepresented parties being required to make use of CE-File if they did not wish to but said that there were significant benefits for users and for the Tribunal which would continue to encourage professionally represented parties to make use of it. In cases where both sides in a case were represented the Tribunal would be likely to direct use of CE-File.

5.3 Sue Brady, the Tribunal’s acting delivery manager provided some practical tips on CE-Filing and document management. In particular, when filing a new case the information page should only be used to submit the Notice of Reference or Application and not for supporting material. All documents filed using the “filing information” page appear as a single case event making it difficult for Tribunal staff to check the filing. All additional documents should be submitted using the “Filing Summary” screen. This gives the option to select a filing type and subtype for each document (for example, Filing – claimant’s statement of case, correspondence – letter from party or Filing – other document). The documents will then transfer as separate case events. It is not necessary to file more than one copy of a document.

7. Preparation of materials for use in final hearings

The DP suggested that time and money spent on over-preparing hearing bundles and complex documents was often wasted. A concise and well-focused statement of agreed facts and issues can be an extremely useful resource, but over-elaborate statements with lengthy preambles, too few facts and too many caveats were positively unhelpful. In a valuation case it was almost always essential to have an agreed description of the property, including agreed measurements and specifications, planning background, environmental factors etc. Where comparable properties were relied on details of the properties, and the relevant transactions, should also be recorded in an agreed statement. This was a task for the surveyors or valuers who would give expert evidence, not for lawyers. The practice of experts agreeing details of comparable transactions would also identify where material facts were in dispute, or ambiguous, and thus where further factual evidence may be necessary.

In a case with numerous documents an agreed core bundle was essential and should be produced just ahead of skeleton arguments, when the experts and advocates would have a better idea of which were the documents likely to be most frequently referred to.

8. Procedures in compensation and enfranchisement cases involving absent owners/landlords

7.1 Diane Martin explained that she is the Tribunal Member with responsibility for compensation cases involving absent owners. There are two different absent owner procedures, depending on whether acquisition is by notice to treat or general vesting declaration. For notice to treat acquisition, Schedule 2 of the CPA 1965 applies and a special Form T362 (on the website) is used by the authority applying for a determination of compensation payable. The Tribunal Member instructs the VOA to produce an expert report. The valuation report may lead directly to a determination by the Member, but in some higher value cases the authority will be given the opportunity to respond to the report before a determination is made. For acquisition by GVD there is currently no special form or other guidance on the Tribunal’s website. A standard compensation reference should be submitted, with evidence of unsuccessful attempts to establish the ownership interests. The Tribunal has power under rule 14 to waive the requirement of service of the notice of reference and will give directions for evidence to be filed and for a determination either on the basis of written representations or after a hearing. It is intended to explain the GVD absent owner procedure more clearly on the Tribunal’s website.

7.2 Peter McCrea explained that he is the Tribunal Member with responsibility for recommending surveyors for appointment by the Chamber President under section 33, Landlord and Tenant Act 1987 to value the interest of an absent landlord where an acquisition order has been made by a court in favour of tenants exercising rights of enfranchisement. In such cases the required valuation is undertaken by the nominated surveyor, and not by the Tribunal. The Tribunal maintains a list of suitably qualified and experienced surveyors and would welcome nominations – from around the country – for inclusion in that list.

9. New Judiciary website

The Courts and Tribunals Judiciary of England and Wales has its own website – www.judiciary.uk – which is distinct from the GOV.UK website maintained by HMCTS. The website is being redesigned and will include pages for each tribunal Chamber. If users have views on what the Lands Chamber page should contain they are asked to pass them on to the DP.

10. Minutes of the meeting of the Telecommunications Users sub-group meeting – 4 November 2021

The minutes of the sub-group were tabled for information.

11. AOB

10.1 Michael Pearce raised the subject of recent difficulty experienced by HMRC lawyers in joining a virtual hearing using the CVP platform; it had been suggested that the platform might be incompatible with HMRC platforms. The DP said that he was aware of the hearing and would follow it up with the Tribunal’s staff.

10.2 Mark Loveday said that the TPC is working on rule amendments to deal with conservation covenants (restrictions on the use of land created by agreement between the landowner and a charity or public authority) under the Environment Act 2021; the changes may involve new Part 6A for the Rules.

10.3 The DP said that the CVP digital hearing platform, which had been in use by the Tribunal throughout 2021, would be likely to be replaced by a new bespoke digital platform run by HMCTS and known as VHS (Virtual Hearing Service). The new platform may be introduced by the end of March 2022.