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

10. Decision-making process

10.1. Each relevant authority will have its own process for making decisions on asset transfer requests, depending on their internal management structures and responsibilities. They should make information available to community transfer bodies on their process, including at what level the decision will be made and expected timings for each stage.

10.2. The relevant authority should continue dialogue with the community transfer body throughout the process. They may ask for clarification or more detail on any issues they feel are necessary for their decision. This will help to avoid situations where a request is refused on the basis of a lack of information which the community transfer body could have provided if they had been asked. The type of information and level of detail expected should be appropriate and proportionate to the individual request.

10.3. Sometimes the relevant authority may indicate that it is more likely to agree to your proposals if you make some changes, and suggest that you submit a new request. However, you have a right to continue your original request and receive a formal decision, which is open to review or appeal.

Matters to be considered

10.4. Section 82 of the Act states that, "where an asset transfer request is made by a community transfer body to a relevant authority … the authority must decide whether to agree to or refuse the request". Under subsection (5), "the authority must agree to the request unless there are reasonable grounds for refusing it".

10.5. It is not possible to give detailed guidance on what may be reasonable grounds for refusal, as this must be determined in the circumstances of each individual case. However, they are likely to include cases where the benefits of the asset transfer request are judged to be less than the benefits of an alternative proposal, where agreeing to the request would restrict the relevant authority's ability to carry out its functions, or where another obligation on the relevant authority prevents or restricts its ability to agree to the request.

Benefits

10.6. In reaching its decision the authority must consider the reasons for the request and the information provided in the request and in support of the request, and compare the benefits of the community transfer body's proposals with the benefits that might arise from any alternative proposal. Alternative proposals may be another asset transfer request, or another proposal made by the authority, or by any other person. If the relevant authority does not consider the property to be surplus, continuing the existing use would be treated as an alternative proposal; if the property has been identified for disposal, disposal on the open market could be an alternative.

10.7. In assessing the benefits of the request the relevant authority must consider whether agreeing to it would be likely to:

• promote or improve
  • economic development
  • regeneration
  • public health
  • social wellbeing
  • environmental wellbeing, or
• reduce inequalities of outcome which result from socio-economic disadvantage

10.8. The authority must also make the decision in a manner which encourages equal opportunities and the observance of the equal opportunities requirements.

10.9. When comparing the benefits of other proposals to the benefits of the asset transfer request, the relevant authority should consider non-financial benefits of the other proposals, where possible, as they are for the asset transfer request. The price offered for the transfer will also be considered alongside the non-financial benefits. In its simplest form, the relevant authority should consider what it could achieve with any profit or savings it might make, or what impact any financial loss might have, compared with the benefits offered by the community project or alternative proposals.

10.10. Further guidance on the assessment of benefits and price is provided in chapter 11.

Ability to deliver

10.11. As noted in chapter 8, the relevant authority will want to be confident that your organisation has the ability to actually deliver the benefits you promise. They may consider issues such as:

• has the community transfer body identified all the relevant costs of the project or activities?
• have you identified appropriate and realistic sources of funding - for example, will you be eligible for any suggested grants, are any fees for activities affordable for their target market, do you have a viable business plan for any proposed commercial activities?
• where relevant, have you identified how the project will be funded in the longer term?
• do members have appropriate skills, experience and qualifications to deliver the project, or does the body have a plan for engaging people who do?
• does the community transfer body have suitable governance arrangements for the scale of the project?
• where relevant, do you have succession plans in place for recruiting new Board members / Trustees in future?

10.12. The information required on these issues should always be proportionate and appropriate to the scale and type of project involved. A proposal to buy and redevelop a building to provide new facilities for a range of users will be a complex and long-term project which requires clear planning for several years and a range of professional skills. A proposal to provide sport activities for young people in school grounds in the evening may not need long-term planning, but you will still need to consider whether people with appropriate skills are available and potential additional costs such as affiliation to governing bodies or Disclosure checks.

Relevant authority's functions

10.13. The relevant authority must consider how any benefits relate to other matters the authority considers relevant, including, in particular, the functions and purposes that the authority is established to deliver. In many cases, the proposed benefits of an asset transfer request will contribute to achieving the relevant authority's outcomes, or to national outcomes more generally. However, there may be cases in which agreeing to the request would have an unacceptable impact on the relevant authority's ability to deliver its functions. This could be a direct impact, for example because the community activities would physically interfere with the relevant authority carrying out its operations, or require them to put alternative arrangements in place that substantially increase the costs. There may also be cases where the community transfer body's proposals conflict with a policy of the relevant authority. And affordability may be a factor, if the cost of the transfer would affect the relevant authority's budget to the extent that it reduced its ability to deliver its functions, even after taking account of the value of the proposed benefits.

10.14. You should make sure you are aware of the relevant authority's key functions and purposes (these can usually be found on their website or in a Corporate Plan) and how they use the land you are requesting. If there is likely to be any conflict you should recognise this in your request and suggest solutions, if possible. Relevant authorities are encouraged to work with community bodies to find a solution that suits both sides. Ideally this should be dealt with in discussion before you make your request.

Obligations and restrictions

10.15. Another matter to be considered is any obligations that may prevent, restrict or otherwise affect the authority's ability to agree to the request, whether these arise from legislation or otherwise. For example, legislation may require a relevant authority to obtain special permission to dispose of certain property, or title conditions or planning restrictions may say that it cannot be used for certain purposes. The Act does not over-ride or alter any such obligations. The relevant authority should explain them to the community transfer body at the earliest possible stage, as they may influence your decision on what property may be suitable for your needs.

10.16. If an obligation imposes an absolute ban on the transfer of the rights sought by the community transfer body, or on the use you propose for the land, that would be reasonable grounds for refusal. However, in many cases there are mechanisms available for amending or removing the restrictions, for example by getting permission from the Scottish Ministers or the courts. The relevant authority should consider the benefits of the asset transfer request first. If it would be inclined to agree to the request, it can then investigate the possibility of removing the restriction. It may take some time to do this, which could mean that either an extension to the decision period is needed, or the agreement to the request might be made conditional on the restriction being removed. The relevant authority should keep you informed of progress regularly.

Lease restrictions

10.17. If your request is for land which is leased to the relevant authority, there may be conditions in the lease which prevent them from agreeing to the request, for example if they are not allowed to sub-let. However, if the landlord is another relevant authority, in certain circumstances restrictions in the lease do not apply, as set out in section 92 of the Act. The circumstances are that:

• the land is leased by one relevant authority, or a company wholly owned by a relevant authority, to another relevant authority
• the request is for lease or a right of occupancy of the land, and
• no other person is entitled to occupy the land.

10.18. In this case, any restrictions in the lease which restrict the ability of the relevant authority to sub-let or share occupancy of the land, or restrict how the land may be used, do not prevent the relevant authority agreeing to lease the land to the community transfer body or allow them to occupy the land. This does not affect any restrictions on the power of the relevant authority to assign or transfer rights and liabilities under the lease, and the relevant authority continues to be subject to any obligations under the lease. For example, if the lease said sub-letting was not allowed, the relevant authority could agree to an asset transfer request for a sub-let, but would still be responsible to the landlord for any maintenance requirements included in the lease between them.

"Other matters" and community support

10.19. The final paragraph of section 82(3) requires the relevant authority to consider "such other matters (whether or not included in or arising out of the request) as the authority considers relevant". This is the heading under which we recommend relevant authorities consider community support for the proposals and any potential impact on other community groups.