Community Empowerment (Scotland) Act 2015: draft regulations consultation analysis

Executive Summary

About this Report

This report provides an analysis of written responses to the Scottish Government Consultation on Draft Regulations relating to the Asset Transfer under the Community Empowerment (Scotland) Act 2015.

Overview of Responses

A total of 82 responses were received to the consultation - 79 from organisations and 3 from individuals. Respondent categories were developed to reflect different interests and roles in relation to asset transfers. Organisational responses were received from local authority organisations, community representative or support organisations, other "relevant authorities" (under the Act), NHS organisations, community planning or health and social care partnerships, and others.

Registers and Information About Land

Types of land to be excluded

The majority of respondents (87%) agreed that the types of land set out in the draft regulations need not be included in relevant authorities' registers. There was broad support from across respondent groups.

When asked whether there are other types of land relevant authorities should not have to include, a large number suggested assets of critical importance to infrastructure or public sector operations - although some may have misunderstood that excluding types of land from the register does not exclude those assets from being subjects of asset transfer requests. Respondents made a wide range of specific suggestions for further exclusions. These included assets relating to public safety, schools and land jointly owned, leased or in dispute.

Guidance on registers

The consultation asked for comments on the proposals for guidance on what information registers should contain and how they should be published. Many respondents highlighted their agreement with particular aspects of the guidance. Many respondents made specific suggestions about additional information that should be included on land registers. In particular, they proposed information on the status of the asset, and additional practical information that may help community transfer bodies decide whether an asset might be suitable for their purposes. Several respondents called for open and positive dialogue between community transfer bodies and relevant authorities.

Information to be provided on request

Respondents were asked whether there was any information that a community transfer body should be able to request from a relevant authority, that would not be available under Freedom of Information (Scotland) Act ( FOISA) or the Environmental Information Regulations ( EIRs). A large number of respondents simply stated 'no', as they were in broad agreement with the proposals. Some highlighted information that would be especially important to community transfer bodies, but which may not be available under the existing legislation. In particular, they emphasised early information that might help a community transfer body decide whether an asset was not worth pursuing, and information on operational costs, title deeds, condition, planning restrictions or permissions, rateable values and any warranties or liabilities.

Procedures for making requests

Additional requirements for making a request

The majority of respondents (79%) agreed that the proposed additional requirements for making an asset transfer request were reasonable. There was broad support from across respondent categories. A few respondents called for more detailed information to be required of community transfer bodies. Others emphasised the challenges of gathering some information that may be required - including valuation information, evidence of community support, and funding information.

Respondents were also asked if there was any other information that should be required to make a valid request. Many emphasised the need to ensure that information on proposed funding and use of land was sufficiently detailed and robust. Others suggested community transfer bodies could be required to provide information on the financial standing of the organisation, its skills, experience or capacity, information on governance and management arrangements within the community transfer body, conflicts of interest, whether they had submitted any other requests, and the organisation's ability to conclude the process within 6 months.

Acknowledgements of requests

When asked for further comments on the proposals for acknowledgements of requests, most respondents indicated they broadly agreed with the proposals. Specific comments related to dealing with missing information, alerting community transfer bodies to alternatives or likely challenges (where appropriate), when prohibition to dispose of an asset would come into effect, and how acknowledgements might deal with competition from other community transfer bodies or commercial bidders.

Notification and publication of information about a request

Respondents commented on a number of issues relating to proposed requirements for notification, when asked. Some respondents commented on the use of physical signs - with some expressing concern about this requirement and others suggesting this should be further developed. A few respondents proposed there may be a need to go beyond the proposed notification and publication processes, to widen the ways in which information would be shared with the local community.

Timescale for decision making on an asset transfer request

When asked whether they thought 6 months was a reasonable length of time for the relevant authority to make a decision on an asset transfer request, the majority of respondents (74%) agreed. There was broad agreement from most respondent groups with the exception of NHS respondents, of which 63% disagreed. While many thought that 6 months would be appropriate in most cases, many (both those who said they agreed and disagreed with the proposal) felt that more complex cases may take longer.

Additional information to be included in decision notices

The majority of respondents (87%) agreed with the proposal for additional information to be included in decision notices. There was a high level of support across respondent groups, with the exception of the NHS respondents, with half broadly agreeing and half broadly disagreeing. Respondents made specific suggestions about other information that might usefully be included in decision notices.

Reviews and appeals

Requirement to appoint a panel of three people to review Ministers' own decisions

The majority of respondents (89%) agreed with this proposal. There was broad support across respondent groups. Of those who provided further comments, most raised questions or put forward suggestions about how a panel might be made up or recruited. Respondents highlighted the importance of transparency, independence and expertise. Three respondents suggested an independent organisation should undertake these reviews.

Timescale for local authorities to make a decision on a review

When asked whether they agreed that local authorities should be required to make a decision on a review within 6 months, the majority of respondents (83%) said they should. There was broad support for this proposal from across respondent groups. When asked to explain how long the period should be, if they had disagreed, respondents provided a wide range of diverse responses. A number emphasised that while the period of 6 months would be workable in most cases, it may be insufficient where a situation was more complex. Of those who disagreed and provided further comments, five specified that the period was too long, and five suggested it was too short.

Other comments about reviews and appeals

Some of those who provided further comments on reviews and appeals demonstrated their general support. A few highlighted the challenges of assessing and balancing non-financial and financial benefits in reviews and appeals. A few others commented on how information would be issued, or on hearings.

Appointment of a single person to consider appeals where no contract has been concluded

The majority of respondents (75%) broadly agreed with this proposal. There was broad support from across respondent groups. When asked for further comments on how these appeals should be carried out if they disagreed, sixteen respondents suggested that a panel or team would be more appropriate. Respondents also highlighted the importance of appointing individual(s) with the right skills, and expertise.

Publication of documents in relation to appeals where no contract has been concluded

Respondents were asked if they agreed that documents should not be published in relation to appeals where contracts had not been concluded, and to explain their reasons. The majority of respondents (79%) agreed with this proposal, and there was overall support from across respondent groups. Those who agreed were often concerned about legally or commercially sensitive information. A few suggested there was no real benefit in sharing information relating to these situations. Those who disagreed tended to suggest information should be shared wherever possible, in the spirit of openness and transparency.

Third party representations where no contract has been concluded

The majority of respondents (90%) agreed that there should be no third party representations allowed in relation to appeals where no contract has been concluded. There was broad support from all respondent groups. When asked to explain their reasons, many of those who agreed suggested there was no real value in additional representation at this stage - which might even introduce further complexities and prevent progress being made. Those who disagreed tended to feel the process should be as open and accessible as possible.

Procedures for appeals where no contract is concluded

When asked for any comments on the proposed procedures for appeals where no contract is concluded, only 23% of respondents answered. Some respondents requested further clarity and guidance on appeals. A few respondents had general or specific queries about how the process might operate, or how Ministers would carry out assessments and develop terms and conditions. Others made very specific suggestions about the timescales for this part of the process.

Procedures for applications to Ministers for Directions

When asked for any comments on the proposed procedures for applications to Ministers for Directions, very few respondents (12%) commented. Points made related to suggested improvements, and changes to timescales.