Community Empowerment (Scotland) Act 2015: community transfer bodies' guidance

19. Scottish Ministers review

19.1. If the asset transfer request was made to the Scottish Ministers, the community transfer body can apply for a review by Ministers, as set out in section 87 of the Act. Procedures for such reviews are set out in the Asset Transfer Request (Review Procedure) (Scotland) Regulations 2016. The majority of the regulations refer to local authorities, but Part 4 of the Regulations sets out how they apply to reviews by the Scottish Ministers. The procedures may seem complicated, but they are intended to make sure that everyone involved with the review has a chance to see and comment on all the information submitted at each stage.

19.2. The Scottish Ministers must appoint a panel of 3 people to consider the review and report back to Ministers on their findings and recommendations. The panel will be appointed from a pool of people with appropriate experience in relation to community asset transfer and public sector asset management; no more than one of them may be a civil servant.

Application for review

19.3. Your application for review must be made in writing to the Scottish Ministers within 20 working days beginning with the date of the decision notice, or if no decision has been made, within 20 working days beginning with the date of the deadline for the decision (6 months from the validation date, as given in the acknowledgement of the request, or a later date if agreed between you).

19.4. The application must include the name and contact address of your community transfer body, and specify the land to which the asset transfer request relates. It must also include a statement setting out your reasons for requiring a review. This should normally be based on the information provided in connection with your request and the reasons given by the Scottish Ministers for their decision, for example if you feel they have not given enough weight to certain benefits, or there may be ways around certain restrictions. If you are seeking a review on the basis of the terms and conditions in the decision notice, you should be clear which particular items you would want to change, and why.

19.5. Your statement of reasons must cover all matters which your community transfer body intends to raise in the review. You may only bring forward further matters or evidence in response to representations on the application, or if the panel request it.

19.6. You can also state by what procedure the community transfer body considers the review should be conducted. This is an opportunity to say whether you think the review can be decided on the basis of written submissions or if there should be a hearing session or another procedure, such as a site visit. The final decision on what procedure to use will be up to the review panel.

19.7. The application must be accompanied by a list of any documents and other material or evidence you want to refer to in supporting your case, and you must provide copies of any of those documents or evidence the Scottish Ministers do not already have (for example because they were provided as part of the request, or they are Scottish Government documents such as policy statements). The Scottish Ministers will publish all these documents on their website.

19.8. The Scottish Ministers will send you an acknowledgement of the application for review within 10 working days of receiving it. The acknowledgement will state the date on which the application was made, and tell you how the review documents can be inspected.

Notification of interested parties

19.9. The Scottish Ministers will also give notice of the review to anyone who made representations on the original asset transfer request. These people are described as "interested parties". Their original representations will be considered by the Scottish Ministers when determining the review. The notice will advise them how and by what date any further representations can be made, and how documents relating to the review can be inspected.

19.10. If the requirements for notification and publication of the original asset transfer request were not fully met at the time, the Scottish Ministers must complete this before determining the review.

19.11. Interested parties may make representations to the Scottish Ministers within 10 working days of the date of the notice. After this they may not bring forward any further matters or evidence unless the review panel requests it.

19.12. The Scottish Ministers will send a copy of any representations received in relation to the review to the community transfer body, and inform you how and by what date you may make comments on those representations to the Scottish Ministers. This must be at least 10 working days from the date of sending the copy.

19.13. The Scottish Ministers may require the community transfer body or anyone else who has submitted any documents or other material in connection with the review to provide additional copies to the Scottish Ministers or to any other person.

Further representations

19.14. Once they have the initial evidence, any representations from interested parties and comments on those representations, the review panel may consider they have enough information to produce their report. If not, they will decide what further procedure to use to get more information. This could be by written submissions, a hearing session, or other procedures such as a visit to the land to which the asset transfer request relates or to another relevant site (for example the community transfer body's existing premises or another similar community project). Anyone may be asked to provide further information by written submissions, or by attending a hearing session, including people not previously involved in the case.

19.15. If further written submissions are required, the panel will send a notice to the community transfer body and any other person they want information from. The notice must set out the matters on which further representations are required, and the date by which they are to be sent to the panel. It must also give the name and address of each person the notice is sent to. Any information provided to the panel in response to the notice must be copied to everyone else the notice was sent to. Those other people then have 10 working days to send any comments to the panel, again copied to everyone else.

Hearing session rules

19.16. The rules for arranging and conducting a hearing session are set out in the Schedule to the Regulations.

19.17. If the panel decides they should hold a hearing session to get more information on particular matters, they must send a notice to the community transfer body, any interested parties, and any other person they want to provide further information. The notice must set out the matters to be considered at the hearing session. Apart from the community transfer body, the people invited must confirm within 10 working days if they plan to attend the hearing session. The community transfer body is automatically entitled to appear at the hearing session. The panel must inform you of the date, time and place when the session will be held, giving as much notice as they consider reasonable in the circumstances. This also applies if the date, time or place of the hearing session is changed.

19.18. If they wish, the panel may ask people who plan to attend the hearing session to submit a written statement of the case they plan to make, in relation to the matters specified to be considered at the hearing. They must send a notice requesting this, specifying the date by which those statements must be submitted. As with the application for review, the hearing statement must be accompanied by a list of documents you intend to rely on, and a copy of any of those documents which has not already been submitted and published in connection with the review. You may ask other people to speak on your case, such as experts on particular issues or people who will be affected by the asset transfer. Your statement must list anyone you want to speak on your case, setting out the matters which they are to address and their qualifications for doing so.

19.19. The notice requesting a hearing statement may also require you to copy it to other people who are entitled to appear at the hearing. All hearing statements from other people must be copied to the community transfer body. The panel must also publish them online. The panel may request further information about matters contained in a hearing statement; that further information must also be copied to anyone else the hearing statement was sent to.

19.20. The hearing session is intended to be a discussion, led by the panel, on the particular matters set out in the notice of the session. The people attending will not normally be allowed to question each other on their statements, and the panel will be able to stop anything being raised if they consider it is not relevant or is repeating previous points. Anyone who is entitled to appear at the hearing session may be represented by someone else, if they wish. One representative may speak for a group of people who have similar interests in the case.

Additional evidence

19.21. If the Scottish Ministers propose to take into consideration any new evidence that was not obtained through the process for written representations or hearing sessions, they must not reach a decision on the review without giving the community transfer body and other "relevant parties" an opportunity to comment on that evidence. "Relevant parties" are anyone who was entitled to appear at a hearing session, if the evidence relates to matters considered at the hearing session, or anyone who was sent a notice requesting further information in writing, if the evidence relates to matters covered by that notice.

Decision

19.22. Section 87(8) of the Act states that section 82, subsections (3) to (5) apply to a review as they apply to an original asset transfer request. This means that, in carrying out a review, the Scottish Ministers must consider the request in the same way as the original process, taking into account the same factors and benefits of the request and alternative proposals.

19.23. Having carried out the review, the Scottish Ministers may confirm the original decision, modify it or any part of it (including the terms and conditions set out in the decision notice) or substitute a different decision. They must issue a new decision notice, which replaces the previous decision notice. If the request is agreed following the review, the process continues as set out in chapter 16. If it is refused, there is no further option for appeal.

19.24. In addition to sending the decision notice to the community transfer body, the Scottish Ministers must publish it online and inform every person who made written representations in relation to the review of the decision and where the notice can be inspected.