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

3. Getting started

3.1. This guidance deals only with the procedures for asset transfer under the Community Empowerment Act, but this is not the only way for communities to acquire land or buildings. Highlands and Islands Enterprise has a useful guide on "Routes to Ownership" http://www.hie.co.uk/community-support/community-assets/routes-to-ownership.html.

3.2. There are various organisations that can support community groups to develop their ideas, decide whether ownership or control of land is right for them, and help them through the process. A list of useful websites is provided at Annex C.

3.3. To get your project started you need to consider the following things:

• What are your objectives - what is it that you want to improve for your community?
• Who are your community? Do you have support within your community for your ideas?
• Do you need land or buildings to deliver those objectives?
• Is there suitable land that might be available, and who does it belong to?
• Do you want to purchase or lease the land or building, or just have rights to manage, use or occupy it?
• If you want to use asset transfer, or community right to buy, is your organisation eligible?

3.4. You should discuss your ideas with the owner of the land as soon as possible. Hopefully you will be able to work together to come up with a proposal that benefits both sides. There have been many successful voluntary asset transfer schemes already. However, remember that the Community Empowerment Act puts more power in the hands of the community body. If you cannot come to agreement with the relevant authority, a community transfer body has the right to make an asset transfer request for the land and the rights that it wants, and to receive a decision made in line with the legislation, which is subject to review or appeal.

Assets and services

3.5. Sometimes a community transfer body may wish to take over a building or land and the services which are delivered by the relevant authority from those premises. This could be addressed by an asset transfer request, or a participation request in relation to improving the outcome of the services. We do not recommend using both types of request together.

• If you want to run a service which is tied to the particular premises, and do not want to use the premises for any other purpose, this should be addressed through a participation request. A lease or other arrangement in relation to the premises can be negotiated if the transfer of the service is agreed.
• If you want to take control of the asset in order to develop the service on your own terms or use the property for other purposes, this should normally be addressed through an asset transfer request.
• An asset transfer request can be accompanied by negotiations for the public authority to contract with the community body to continue to provide a service, as a source of income.

Some terms used in this paper

Regulations are a type of "secondary legislation". An Act ("primary legislation"), which has been agreed by the Scottish Parliament, may say that the Scottish Ministers may make regulations about certain things. Those regulations also have to be considered by the Parliament before they can come into effect. Regulations are used to set out detail and technical issues, because they can be updated more quickly than an Act if changes are needed. They are law and everyone has to comply with them.

Orders are another type of secondary legislation, very similar to regulations. The Scottish Ministers have powers under the Community Empowerment Act to make orders to make changes to the list of relevant authorities and to designate organisations as community transfer bodies.

Guidance gives advice about how to do what the Act and regulations require. Guidance can give examples and suggestions about best practice and can be flexible to allow for different circumstances. It can also provide links to other helpful information and organisations, and can be updated at any time.

Some parts of the Act allow Ministers to give Directions. A Direction is a piece of legislation that tells certain people or organisations that they must do or not do something. It only applies to the person/people or organisation(s) it is addressed to.

Numbering of legislation

• Acts are divided into sections. These can be divided into subsections, eg "section 81(2)", and paragraphs, eg "section 82(6)(a)".
• Each piece within a set of regulations is a regulation, for example "regulation 2", and these are divided into paragraphs, eg "regulation 5(4)".

An asset is something that has value to someone. In relation to "asset transfer" under the Community Empowerment Act it means land and any buildings or other structures on the land, like bridges, walls or piers. It does not include vehicles or equipment.

"Asset transfer" is a process to allow a community organisation to take over publicly-owned land or buildings, in a way that recognises the public benefits that the community use will bring. That may be a discounted price, a grant or other support, or simply the agreement to transfer something the public authority did not plan to sell. If the land is put up for sale or lease and a community body offers the best (or the only) bid, that is just a commercial transaction.