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

7. Helping community bodies to identify suitable assets

7.1. In the past, asset transfer has usually only been available for land or buildings which a public authority has decided to dispose of, and has decided is suitable for community use. The Act puts more power in the hands of communities by allowing them to request whatever publicly held property they believe will be most suitable to deliver their objectives. The decision process provides for a comparison between the benefits of the community body's proposal and the benefits of any alternative, including the current use.

7.2. The guidance for community bodies are encourages them to start by thinking about what they want their project to achieve - for example, to help young people gain new skills through training, create greater community cohesion by providing a place for people to meet or hold events, or improve health and wellbeing by providing access to the natural environment.. Then they can consider whether they need an asset to deliver their aims, and look for somewhere that will be suitable. This is highlighted in advice from the Community Ownership Support Service ( www.dtascommunityownership.org.uk). Community projects which focus on "saving" a building threatened with closure or demolition often run into difficulties later if they have not fully thought through what they will do with it and the costs involved.

7.3. Publicly owned land and buildings, and how they are used and maintained, can have a significant impact on the community in which they are located, whether they are used to provide services, have historic connections to the community, or affect patterns of traffic and custom for local businesses. Public authorities are generally conscious of the need to engage with communities over any change to services, but you should also consider seeking views on the disposal or future use of premises which become vacant as a result. Relevant authorities may wish to invite community bodies to register their potential interest in particular types of asset, such as offices, halls or business units. They can then be contacted if suitable spaces become available, or included in discussions where relevant new facilities or co-location of services are being considered.

Register of land

7.4. To help community bodies identify assets that may be available through asset transfer, section 94 of the Act requires each relevant authority to establish, maintain and make available a register of land which it owns or leases, "to the best of its knowledge and belief".

7.5. Effective asset management systems are an essential part of financial management. However, it is recognised that the ownership and boundaries of land are sometimes unclear, especially where records are old and land has changed hands by statutory powers or reorganisation of public bodies. The legislation therefore does not require relevant authorities to make checks or confirm title before publishing information in the register of land. The Scottish Government has committed to improving the accuracy of information about land ownership, and is seeking to have all public sector land included on the Land Register by 2019. The process of undertaking voluntary registration will, over time, also improve the accuracy of information held by public bodies and published in their register of land. However, the two processes are not formally linked.

7.6. Relevant authorities will already hold the information which is required to be included in the register of land, in their asset registers held for accounting purposes and in property management systems. In some cases the information may already be published as part of a publication scheme under the Freedom of Information (Scotland) Act 2002 (" FOISA"). These resources should be used as far as possible to minimise the work required to comply with the requirement in section 94 of the Community Empowerment Act. However, some additional work may be required to bring the information together and make it accessible to communities.

7.7. It is for each relevant authority to determine whether a particular property is required to be included in the register, depending on the individual terms of ownership or lease in each case.

7.8. The Act requires that the register must be maintained. If the register is not linked to your authority's internal systems to be updated automatically with any changes, it should be reviewed at least every three months, and the date of the last update should be shown on the register. It will be in the authority's interest to keep the register current, to avoid enquiries about properties you no longer own.

Land which need not be included in the register

7.9. The Act allows the Scottish Ministers to make regulations specifying types of land that relevant authorities need not include in their registers. Following consultation and discussion with various relevant authorities, a number of types of land have been specified in the Community Empowerment (Registers of Land) (Scotland) Regulations 2016.

7.10. Please note that the register of land to be produced under section 94 does not determine what may be requested by a community transfer body. An asset transfer request may be made for any land owned or leased by a relevant authority, including land which is not included in the register.

7.11. The following types of land need not be included in relevant authorities' registers:

(a) Roads. Including all roads would make registers much larger for no purpose, as community bodies are unlikely to want to take over roads. If they do, it is usually clear who to approach. The definition covers pavements, footpaths and cycle paths. It does not cover footpaths on land "owned or managed by a local authority and used by them for the provision of facilities for recreational, sporting, cultural or social activities", but these need not be listed separately from the land they cross.

(b) Underground railways, together with stations, entrances and other land essential to the operation of the railway. This applies only to Strathclyde Partnership for Transport ( SPT), in relation to the Glasgow Subway (Network Rail, as a UK body, is not a relevant authority). It would not be practically possible for a community transfer body to take over individual parts of the Subway, since it operates as a whole. If they wanted to use areas within stations, for example, it is clear who to approach.

(c) Canals. Scottish Canals owns and operates the five main canals in Scotland. As with the Subway, it would not be possible for a community transfer body to take over a section of a canal, as the whole network operates together. The definition includes towpaths, bridges, reservoirs etc, which are essential to the operation of the canal, but Scottish Canals will need to list the other land and buildings it owns.

(d) Bus stations. Bus stations may be operated by local authorities or Regional Transport Partnerships. They need not be included in registers of land, along with roads, railways and canals.

(e) Houses, hostels and lodging-houses. As with roads, including all houses would make registers much larger and more difficult to maintain and search. There are also concerns about the privacy of tenants and security for accommodation for vulnerable people. Community bodies do not often want to take over houses that are occupied, and special arrangements would apply if they wanted to transfer social housing to a new landlord.

The exclusion for houses, hostels and lodging-houses does not apply if they are surplus to the requirements of the relevant authority, which will usually mean they are empty and available for sale. In areas where there is a shortage of affordable housing, particularly in small rural communities, community bodies may be interested in taking over such properties, and relevant authorities should consider engaging with them before putting the house on the market.

The exclusion also does not cover hostels and lodging-houses operated on a commercial basis, for example as tourist accommodation .

(f) Land used for the supply of drinking water and disposal of waste water, and certain reservoirs. The location of these facilities is not published in the interests of national security.

(g) Police radio masts and sites used for covert policing. The location of these facilities is not published in the interests of national security and the prevention and detection of crime.

(h) Souvenir plots. These are areas of land that are of "inconsiderable size and no practical utility" and have never been registered, as described in section 22 of the Land Registration (Scotland) Act 2012. However, you should be aware that community groups, particularly those interested in community growing, may value even small patches of land and you may receive enquiries about them.

(i) Mineral rights owned or leased separately from the land to which they relate. The ownership and exercise of such rights is likely to be complex and would require significant investigation by the community body.

7.12. Land of the types specified in the regulations can be included in your authority's register if you believe this would be helpful for communities, or more straightforward to provide. You should consider the issues of volume, security and privacy outlined above before taking such a decision.

Information about each property

7.13. As a minimum, the register must identify the property and its location. This should normally include a grid reference, the street address (including postcode) if there is one, any name the land or building is known by and its UPRN if there is one (Unique Property Reference Number - these are provided by local authorities through the One Scotland Gazetteer http://onescotlandgazetteer.org.uk/). Users should be able to search the register for particular properties, and also to search for land in particular areas. National public bodies should identify at least the local authority area for each property; local authorities and other authorities with a lot of property might want to identify smaller districts or neighbourhoods.

7.14. A basic description of the current use should also be given if possible, such as "offices", "clinic", "depot", "park". Where a relevant authority owns an area of land with several buildings on it, it is not necessary to identify the buildings separately. For example, a hospital, college campus or business park could be listed as one property. For large areas such as forests, country parks or nature reserves it may be helpful to identify substantial buildings, but there is no need to list every storage shed or shelter.

7.15. You should consider what additional information could be included in the register to help community bodies understand the status of each property and whether it may be suitable for their needs, without having to make further enquiries. This will, of course, depend on the information your authority holds and how easily different datasets can be linked. Details that may be helpful include:

• The department responsible for it or account it is held on (for local authorities);
• Whether it is owned or leased by the authority (there is no need to provide any details of a private owner, but it would be helpful to note if the owner is another relevant authority)
• Whether it is vacant, occupied by the authority, tenanted, surplus, etc
• Size -it is important to be clear what this represents, for example the total area of the plot, the footprint or the floor area of the building
• Any heritage or environmental designations affecting the land
• Any known restrictions on disposal or future use of the property, such as common good a trust deed, etc. It may be appropriate to include a caveat that other restrictions may come to light on investigation.

7.16. Notes attached to the register should also help community bodies to understand the information provided. Any abbreviations, codes or technical terms should be explained, and contact details provided for enquiries, including for different departments if appropriate. This is also an opportunity to explain the purposes for which the authority holds land and buildings and any general restrictions on your ability to dispose of property, or of particular categories of property.

Publishing the register

7.17. There is no set format in which the register must be made available, although it must be online. It will depend on how the information is currently held, the number of properties to be listed and how frequently changes are made. Ideally you would provide a map-based, searchable system which is automatically updated from the authority's own property management system; some authorities already have such systems available to the public. Text-based systems with the ability to search or filter entries by location or description could also be used. As a minimum, authorities with only a small number of properties on their register (less than 100) could provide a table or simple spreadsheet with the ability to search for text.

7.18. There are a number of projects already in progress to improve public access to information about land, including ScotLIS (managed by Registers of Scotland) and the Spatial Hub http://www.spatialhub.scot/ (managed by the Improvement Service), in addition to the requirements of the INSPIRE Directive for publishing spatial datasets. If you are developing a new system to maintain or present your register, it should be compatible with other ongoing projects, and compliant with INSPIRE, so that in time they could potentially be linked together. Speak to your geographic information or spatial data specialists to ensure you take advantage of any existing work.

7.19. There are no plans at present to provide a single, central register for all relevant authorities. However, relevant authorities may wish to combine with others in the same area or of similar types. Links to all relevant authorities' pages will be provided via the Scottish Government website, http://www.gov.scot/Topics/People/engage/AssetTransfer.

7.20. In addition to making the register available online, arrangements must be made for members of the public to inspect it, free of charge, at reasonable times and at such places as the authority may determine. This does not mean that a full paper version of the register has to be produced, although this may be practical for some authorities. Alternatives could be, for example, to enable people to use the register on a computer at a public enquiry office, or to send out printed extracts in response to telephone enquiries.

7.21. For local authorities and others which have public offices across their area, it should be straightforward to make arrangements for people to inspect the register. Others may only be able to provide this service at a few locations. Members of community bodies may be able to access online registers at libraries or community hubs, which are generally used to helping users find information. You should ensure your register is easy to find and has clear instructions for use.

7.22. You must also be ready to provide information from your registers in alternative languages and formats if requested, to meet equality requirements.

Enquiries about land

7.23. As mentioned above, an asset transfer request can be made for any land owned or leased by the relevant authority, even if it is not on the register. You may receive enquiries about land which someone believes is owned or leased by your authority, which is not on your register. You should aim to respond helpfully to such queries, for example providing pointers if you believe the land is owned by another relevant authority. Even where there are security issues about the publication of lists or maps of sites, it will often be possible to respond to a particular request about an individual property.

7.24. If it appears that significant cost would be involved in answering the enquiry, or it involves information that you think should be withheld, you should consider it in line with the requirements of FOISA and the Environmental Information Regulations ( EIRs). Remember that there is no requirement to state that the request is made under this legislation, and the EIRs do not even require a request to be in writing. This consideration may indicate that it is appropriate to direct the community body to Registers of Scotland to investigate ownership, or to charge a fee if substantial work is required to provide the information.

7.25. It is important that all staff are aware of the asset transfer legislation (as well as FOISA / EIRs requirements) and where to direct any enquiries. Community bodies may ask any staff they see on site, rather than contacting a central office or accessing your website. It is essential that they are put in touch directly with officers dealing with asset transfer who can provide accurate information, for example about the status of the building and any future plans. It can be difficult to build positive relationships later if people have received misleading information, or have not had an answer to their enquiries. Officers should also keep in mind that, while it is helpful to provide advice, community transfer bodies ultimately have a right to make a request for any property, on their own terms, and to receive a formal decision in line with the legislation.

Further information about land

7.26. Once they have identified one or more properties that may be suitable for their project, a community body will need further information about them. They will need to decide whether the land or building is suitable for their planned activities, what the running costs will be, and how much to offer for it. If they intend to request ownership or a lease with repairing responsibilities, they will need information about the structural condition of any building, other rights on the land, and so on.

7.27. We recommend that community bodies should make contact with the relevant authority as early as possible and there should be an open discussion about the community's objectives and property that may be suitable. The relevant authority should be open about the information it has, including practical knowledge about managing the property, and how other information might be obtained. Most importantly, you should ensure that the community transfer body is aware of any information that is likely to be a significant factor in the authority's decision on the request.

7.28. Although the Scottish Ministers may make regulations about information which a community body may request from a relevant authority about land for which they intend to make an asset transfer request, no such regulations have been made so far. We consider that FOISA and the EIRs provide sufficient rights for community bodies to request any information they may require. The exemptions and exclusions provided by this legislation are equally appropriate in relation to asset transfer, for example the ability to withhold information on grounds of protecting personal data, commercial confidentiality or national security. These exemptions are also backed by a right to a review and appeal to the Information Commissioner if information is withheld without good reason. Further guidance on these rights is available on the Scottish Information Commissioner's website, http://www.itspublicknowledge.info/home/ScottishInformationCommissioner.aspx. All staff who may be dealing with enquiries should be familiar with the requirements.

7.29. Relevant authorities may not have current, detailed information about all their properties, for example in relation to condition and energy costs. Where they do it will have been produced for the authority in relation to their use of the building, and may not be appropriate for the community transfer body to rely on. Professional surveys produced for the authority may also be confidential to them. You should seek to make as much information available to the community body as possible, but these kinds of caveats should be made clear.

7.30. Ultimately it is the responsibility of the community transfer body to ensure it has all the necessary and relevant information to develop its proposals. There is no requirement for the relevant authority to obtain information or commission reports to provide to the community body, which it does not already have. However, as a way of supporting them, the relevant authority may agree to share the cost of producing or commissioning new information, and provide assistance by providing information to surveyors, facilitating access to the site, and so on. Funding for project development work such as surveys may be available where the community body proposes to buy the property. It is less likely to be available for proposals for lease.

7.31. Where an authority is seeking to dispose of a property, or considers that a community proposal deserves support, it may be appropriate to draw together a "sales pack", which would contain information such as:

• title reports
• rateable value
• size - including site or building plans if appropriate
• any planning restrictions, heritage designations, environmental designations, or other restrictions on future use
• information on any tenancies, occupancy agreements etc (as far as possible under confidentiality)
• Coal authority report
• utility / service information

For buildings

• condition and suitability reports
• asbestos reports and management plan
• energy costs (for current use) and / or Energy Performance Certificate

For land

• contamination
• for agricultural or forestry land, any relevant planting records, management plan or similar.