Proposals on secondary legislation the Land Reform (Scotland) Act 2003 part three: crofting community right to buy as amended by the Community Empowerment (Scotland) Act 2015: consultation

1. Executive Summary

The Community Empowerment (Scotland) Act 2015 amended the Land Reform (Scotland) Act 2003 with regard to the provisions relating to crofting community right to buy which resulted in a number of policy proposals emerging for secondary legislation. The Scottish Government sought views on these from relevant organisations and individuals in a consultation document published on 21 March 2016.

Nine responses were received, eight from organisations; one was from an individual. A summary of views from the responses follows.

Application forms

Whilst most of those providing a view were content with the proposals for the application forms to be used by crofting community bodies ( CCBs) for consent to buy eligible croft land and consent to buy the interest of the tenant in tenanted land, there were some suggestions for making the forms simpler and clearer.

A few questions on the forms were highlighted as potentially overburdensome for CCBs, with some of the information requested not readily available.

Recommendations were made for a "test of necessity" to be applied to the questions posed; and to qualify requests for information with wording along the lines of, "to the best of your knowledge".

Manner of public notice

Whereas most respondents were satisfied with what was proposed regarding manners in which public notice should be given to an application by a CCB, one respondent considered that the public notice should be in writing; another suggested that there should be a site notice and a copy of the notice posted on the website of the relevant local authority.

Right to buy ballot

Most of those who provided a view on how the ballot should be conducted agreed with the proposals set out in the consultation.

Other suggestions were for voting in person; appointing an independent observor to oversee the counting of votes; and being clearer on the criteria for validating the ballot result in terms of thresholds for accepting a majority vote and establishing the minimum turnout acceptable.

Two respondents expressed concern for those with other interests in the land such as fishing or mineral lets; and that there appears to be no requirement for consultation other than with the CCB.

Most respondents agreed with the proposals for making a request for a proxy vote although more time between lodging a proxy vote nomination and the deadline for returning a ballot paper was requested to allow for the CCB to update its ballot records. It was also proposed that a limit be placed on anyone acting as proxy to do so for a maximum of two electors, other than close relatives.

Most respondents were content with the format of the form for the ballot return proposed, although a few suggestions were made for rationalising the return. Most of those providing a view indicated that they were content with the process outlined for making public the results of the ballot, athough two respondents proposed additional online notification.

Respondents were generally supportive of the proposals relating to retention of the ballot papers and were in agreement that there should be a process to deal with requests for documentation relating to the ballot. The process proposed was perceived to be straightforward with only one suggestion for reducing the time period permitted for provision of information from the proposed 28 days to 14 days.

Reimbursement of expenses by Ministers

All but one of the respondents broadly accepted the notion of reimbursement of the expenses of conducting a ballot. A few respondents expressed their view that the outcome of the ballot should be of no consequence in relation to reimbursement of expenses.

All of the respondents who provided a view agreed that the method used by Ministers to calculate the costs should take account of all of the expenses that a CCB incurs in connection with the ballot. There was general agreement that Ministers will need certain information to enable costs to be calculated including vouchers for each item of spend and all documention relating to the procurement of the ballot, including estimates of costs for services procured.

Respondents agreed in general with the proposed procedure to be followed in connection with the making of an application to Ministers for reimbursement.

Views were requested on proposals for an appeals process. Due to what appears to be mis-reading of the relevant question on this topic it is not possible to ascertain the level of support or opposition to the proposals.

Notification of the Minister's decision on an application

Most respondents were content with the proposed format on notification of the Minister's decision on an application. A few respondents identified text which they considered required re-working.

Compensation

It was generally agreed that amounts payable as compensation in respect of loss or expense incurred by a landowner, persons entitled to sporting interests, or the tenant, should be reasonable and vouched for.

Different views emerged on how to determine what is "reasonable" with suggestions including: Ministerial decision; compensation based on actual loss incurred and actions required to be taken; market value; or the district valuer's assessment.

Contrasting views were held on whether compensation claims should be assessed on a case-by-case basis, or whether a statutory formula should be developed for determining claims.

Several respondents considered that specification of particular categories of person who can receive compensation may be inappropriate, but instead anyone who can demonstrate loss should be considered.

There were mixed views on the amount of compensation payable in respect of loss or expense. Some respondents proposed that whatever costs are deemed to be reasonable should be compensated for. Others recommended determining compensation on a case-by-case basis due to wide variation in circumstances. A few respondents argued against setting upper limits where expenses can be vouched for and are legitimate; one respondent considered a ceiling should be in place to ensure legal costs do not become disproportionate to the value of the land being purchased.

Respondents agreed with the proposals for the procedure by which an application for a grant to assist a CCB in meeting its liabilities to pay compensation should be made. There was also agreement on the form of the application document for a grant towards compensation liability.