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

15. Decision notice

15.1. Having made its decision, the relevant authority must issue a decision notice to the community transfer body, under section 82(7) of the Act, setting out its decision and the reasons for it. This must be done within six months from the validation date, as prescribed in regulation 10 of the Procedure Regulations, or a longer period if agreed between the relevant authority and the community transfer body. If no decision notice is issued within this time, the community transfer body has the right to request a review or appeal to the Scottish Ministers, as appropriate.

15.2. The decision should not be unnecessarily delayed. It may be possible to make a decision in less than six months if the request is straightforward or there has been substantial discussion with the community transfer body before the request is submitted - as little as three months has been suggested. On the other hand, a longer period may be required for complex requests or where another process is required to remove a restriction on the relevant authority. You should advise the community transfer body of any potential delays at the earliest opportunity, and seek their agreement to an extension to the time period. It may be helpful to assess the complexity of a request and give the community transfer body an indicative decision date at the beginning of the process, for all cases. An extension should always be agreed before the prescribed (or previously extended) period expires.

15.3. The information to be provided in a decision notice is set out in sections 82(7) and 83(2) of the Act, and regulation 11 of the Procedure Regulations. It must do the following:

A. state the date on which the asset transfer request was made

B. identify the community transfer body which made the request

C. identify the land to which the request relates

D. set out the authority's decision to agree to or refuse the request

E. set out the authority's reasons for its decision

F. contain notification of the right of appeal or review, how an appeal or application for review may be made, and the date by which it must be made.

and if the request is agreed:

G. specify the terms and conditions on which the authority is prepared to transfer ownership, lease the land or confer the rights requested

H. state that, to proceed with the process, the community transfer body must submit an offer,

I. specify the period within which the offer must be submitted (this must be at least 6 months from the date of the decision notice)

15.4. A template for a decision notice is provided on the Scottish Government's website.

A, B, C - date of the asset transfer request, community transfer body and land to which the request relates

15.5. This information is simply to identify the request to which the decision notice relates.

D, E - the authority's decision and reasons

15.6. The requirement for the relevant authority to give reasons for its decision is a key part of the legislation. An asset transfer request must be agreed unless there are reasonable grounds for refusal: it is the decision notice that will set out those grounds, and if the community transfer body does not believe they are reasonable they may appeal or seek review of the decision. In particular, if a request is refused because an alternative proposal is preferred, the decision notice would need to describe the alternative proposal and how it was considered to provide greater benefits. This should be as transparent as possible and reasons should be given for any key information that is withheld, for example on grounds of commercial confidentiality. The decision notice should be equally clear if the request is refused because of deficiencies in the community transfer body's case.

15.7. If the request is agreed, the reasons may simply be that there were no reasonable grounds for refusal. However, if there were alternative proposals for the property, or objections to the transfer, the reasons might set out why the community transfer body's proposals were favoured.

F. Notification of the right of appeal or review

15.8. As with the acknowledgement letter, the decision notice should advise the community transfer body of the type of appeal or review that is available to them, depending on the relevant authority to which the request is made. At this stage it can be more detailed, taking account of the decision which has been made. You should explain the circumstances in which the appeal or application for review can be made, ie, if the request has been refused, or if it has been agreed, in case the terms and conditions are significantly different from those in the request.

15.9. You should say who the appeal or application for review should be made to, with the address it should be sent to, and refer the community transfer body to the guidance on how to make the application. You should also give the date by which the application must be made - this is 20 working days beginning with the date of the decision notice.

F. Terms and conditions for transfer

15.10. The terms and conditions (including price or rent) on which the relevant authority would be prepared to agree to the transfer may be the same as or different from, any terms and conditions set out in the request, or may add to those in the request. However, if they are significantly different the community transfer body may apply for a review or appeal against them.

15.11. The terms and conditions set out in the decision notice form the basis of the offer to be made by the community transfer body, and subsequent negotiations to conclude the contract for transfer. They should therefore be detailed enough for the community transfer body to decide whether or not they are willing to agree, and to write a meaningful offer. The terms and conditions set out in the request should cover any issues that are key to the community transfer body's proposal; those set out in the decision notice should add anything the relevant authority considers essential. They should also clearly include anything that may affect the community transfer body's ability to deliver their proposals or secure funding, such as any restrictions on use or conditions requiring repayment if benefits are not delivered.

15.12. The decision notice may be conditional on a range of factors, such as the community transfer body securing funding, planning permission or confirmation of charitable status.

G, H. Requirement to submit an offer, and date

15.13. As the next stage in the process, if the community transfer body wishes to proceed, it must submit an offer to the relevant authority. This offer must reflect the terms and conditions in the decision notice, and may include any other reasonable terms and conditions that are necessary or helpful to secure the transfer of the rights requested in a reasonable time. The decision notice must set out this requirement, and give the date by which the offer must be submitted. It is for the relevant authority to determine that date, but it must be at least 6 months from the date of the decision notice.

Notification and Publishing

15.14. The decision notice must be sent to the community transfer body at the contact address, and published online. The relevant authority must inform anyone who made representations (and provided an address) of its decision and where the decision notice can be seen.

After Agreement