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

20. Appeal to the Scottish Ministers

20.1. If the asset transfer request was made to any relevant authority other than the Scottish Ministers or a local authority, the community transfer body can appeal to the Scottish Ministers, as set out in section 85 of the Act. Procedures for such appeals are set out in the Asset Transfer Request (Appeals) (Scotland) Regulations 2016.

20.2. You can also appeal to the Scottish Ministers following a review by a local authority, as provided by section 88 of the Act. The procedure is the same in both cases. Part 4 of the regulations sets out the technical differences in how they refer back to section 88 instead of section 85.

20.3. The procedures may seem complicated, but they are intended to make sure that everyone involved with the appeal has a chance to see and comment on all the information submitted at each stage.

Notice of appeal and relevant authority response

20.4. You must send a notice of appeal 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). For appeals following a local authority review, this relates to the date of the decision on the review, or the deadline for that decision.

20.5. The notice of appeal 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 why you are appealing and the matters which you consider should be taken into account in determining the appeal. This should normally be based on the information provided in connection with your request and the reasons given by the relevant authority 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 appealing 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.

20.6. The Scottish Ministers may consider any aspect of the decision in their appeal, including issues not raised by the community transfer body, but they will mainly focus on the matters covered in the notice of appeal.

20.7. Your notice of appeal must cover all matters which your community transfer body intends to raise in the appeal, and be accompanied by all documents or other evidence you intend to refer to. You may only bring forward further matters or evidence in response to representations on the application, or if the Scottish Ministers request it.

20.8. You can also state by what procedure the community transfer body considers the appeal should be conducted. This is an opportunity to say whether you think the appeal 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 Scottish Ministers.

20.9. The notice of appeal must be accompanied by a copy of the original asset transfer request, and all documents provided by the community transfer body the relevant authority in connection with the request (and review, if appropriate). If a decision notice has been issued, this must also be attached. The Scottish Ministers will publish all these documents on their website.

20.10. At the same time as sending the notice of appeal to the Scottish Ministers, you must send a copy to the relevant authority. This must be accompanied by a list of all the documents and evidence sent to the Scottish Ministers, and copies of anything the relevant authority does not already have.

20.11. The relevant authority will have 15 working days to send its response to the Scottish Ministers. This must set out the matters they consider should be taken into account in the appeal and the procedure they consider should be used. The relevant authority must also send to the Scottish Ministers copies of any documents that were taken into account in reaching its decision on the request (or review), which were not included with the community transfer body's notice of appeal. The relevant authority will not be allowed to bring forward any further issues or evidence after submitting its response, unless the Scottish Ministers request it.

20.12. If the relevant authority raises any issues in its response that were not covered in its decision notice, or in your notice of appeal, the community transfer body will have 15 working days to send the Scottish Ministers any comments on those issues. together with any related documents or evidence. All this material will be published on the Scottish Ministers' website.

Notification of interested parties

20.13. Within 10 working days of receiving the notice of appeal, the relevant authority must also give notice of the appeal to anyone who made representations on the original asset transfer request (or review). These people are described as "interested parties". The relevant authority must also send copies of the original representations to the Scottish Ministers, to be considered when determining the appeal. The notice to interested parties will advise them how and by what date any further representations can be made, and how documents relating to the appeal can be inspected.

20.14. 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 appeal.

20.15. 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 Scottish Ministers request it.

20.16. The Scottish Ministers will send a copy of any representations received in relation to the appeal to the community transfer body and the relevant authority, 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.

20.17. The Scottish Ministers may require the community transfer body or anyone else who has submitted any documents or other material in connection with the appeal to provide additional copies to the Scottish Ministers or to any other person. They may require the relevant authority to make copies of such material available for inspection at an office, for example if it is not practical to view them online.

Further representations

20.18. Once they have the initial evidence, any representations from interested parties and comments on those representations, the Scottish Ministers may consider they have enough information to determine the appeal. 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.

20.19. If further written submissions are required, the Scottish Ministers will send a notice to the community transfer body, the relevant authority, 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 Scottish Ministers. It must also give the name and address of each person the notice is sent to. Any information provided to the Scottish Ministers 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 Scottish Ministers, again copied to everyone else.

Hearing session rules

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

20.21. If the Scottish Ministers decide they should hold a hearing session to get more information on particular matters, they must send a notice to the community transfer body, the relevant authority, 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 and the relevant authority, who are automatically entitled to appear, the people invited must confirm within 10 working days if they plan to attend the hearing session. The Scottish Ministers 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.

20.22. If they wish, the Scottish Ministers 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 notice of appeal, 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 appeal. 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.

20.23. 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 and the relevant authority. The Scottish Ministers must also publish them online. The Scottish Ministers 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.

20.24. The hearing session is intended to be a discussion, led by the Scottish Ministers, 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 Scottish Ministers 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

20.25. 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 appeal without giving the community transfer body, the relevant authority 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

20.26. Having carried out the appeal, the Scottish Ministers may allow the appeal (agree with the community transfer body's case), or dismiss (reject) it. They may reverse or change any part of the original decision by the relevant authority, even if that part was not mentioned in the appeal, including changing the terms and conditions set out in the decision notice.

20.27. If the outcome of the appeal is that the asset is to be transferred, or any terms and conditions in the decision notice are to be changed, the Scottish Ministers must issue a direction to the relevant authority requiring them to issue a new decision notice on those terms. This decision notice replaces any previous decision notice in relation to the asset transfer request.

20.28. The Scottish Ministers must notify the community transfer body and the relevant authority of its decision, and send the community transfer body a copy of any direction issued to the relevant authority. They must also publish their decision and any direction online and inform every person who made written representations in relation to the appeal of the decision and where the notice can be inspected.

Appeal where no contract concluded