The right to buy land to further sustainable development: consultation analysis

Excluded Land, Tenancies And Tenant’s Interests

Question 1

Do you agree with our proposals for excluding from the Part 5 right to buy the sorts of land pertaining to a home outlined above?

Option	Total	Percent of All
Yes	13	65.00%
No	1	5.00%
Partially agree	6	30.0%
Not Answered	0	0%

• This question was answered by all consultation respondents and the majority of respondents either agreed (65%) or partially agreed (30%) with the proposals, with one individual disagreeing.
• The James Hutton Institute said the regulations would benefit from the provision of more detail regarding how these exclusions relate to property and ‘homes’ in urban areas; and further definition and detail with regard to: (i) access roads to rural properties; and (ii) the phrase ‘incidental leisure’.
• Some respondents expressed concern that the exclusions could be used purposely as a tactic to make land ineligible for a Part 5 application. For example, a land owner might claim that a deer forest or grouse moor were part of their home used for incidental leisure activities.
• In particular several respondents were concerned that the exclusion of land used to keep pets belonging to the occupants of the individual’s home could be misused, for example by claiming that livestock were pets.
• The Development Trusts Association Scotland, while agreeing with the principle of excluding land which forms the curtilage of an individual’s home, would like to see more clarity on how this is defined.
• Some respondents suggested that further types of land should be excluded. These included land which is a designated designed landscape pertaining to a home, either under National or Local Authority designation, listed buildings and land contained in the same conservation listing as the home.

Scottish Government Response

The Scottish Government’s view is that no further types of land should be excluded from Part 5, as this could start to limit the amount and types of land available for communities to use to promote sustainable development. Scottish Ministers can only approve a transfer where it is in the public interest, and this will ensure that land which is designated or listed will be properly considered prior to any decision on transfer.

With regard to concerns about how the legislation might be used or misused, in developing our proposals we were mindful of the need to balance the legitimate rights of individuals and families to make use of land they own for domestic related purposes, alongside the needs of communities to acquire land for sustainable development. We believe the balance we have achieved is proportionate, and that where grey areas of interpretation arise in any Part 5 application, these will be best considered on a case-by-case basis.

Question 2

Do you agree with the further types of land that are to be excluded from Part 5 right to buy?

Option	Total	Percent of All
Yes	4	20.0%
No	2	10.0%
Partially agree	14	70.0%
Not Answered	0	0%

• This question was answered by all consultation respondents. Four agreed with the proposals, 2 disagreed and 14 partially agreed.
• Several respondents questioned why it was necessary to exclude land held by a Minister of the Crown or UK government department.
• Some respondents also suggested that land owned by the Crown by virtue of having its vested interest as bona vacantia in the Crown, or its having fallen to the Crown as ultimus haeres, should not be excluded under Part 5. One respondent said that often the reason land is abandoned or neglected is because the land is now owned by the Crown by virtue of it having fallen to the Crown as ultimus haeres, and that Part 5 could be used to bring such land back into sustainable use.
• The NHS suggested that the following types of land should also be excluded:

(i) care in the community accommodation;

(ii) staff accommodation which is intrinsically linked to employment and ordinarily in close proximity to the employer's premises;

(iii) land which is connected to the landowner exercising its statutory functions; and

(iv) operational NHS facilities as required to exercise its statutory functions.

• Scottish Land and Estates (SLE) suggested that sites that have planning permission, are allocated under a local development plan or are included as part of any forestry strategy should not be eligible under Part 5.
• SLE also suggested Ministers consider whether land that has been deemed to meet good agricultural and environmental condition, or if it is deemed to be eligible for the purposes of the Basic Payment Scheme, should also be excluded.
• Similarly, the NFUS was of the view that land relating to the Basic Payment Scheme and other schemes, such as agri-environment, should also be considered for exclusion from Part 5 Right to Buy.
• SLE also made the following suggestions for exemptions:

(i) Sites of Special Scientific Interest;
(ii) Special Protection Areas;
(iii) Special Areas of Conservation; and
(iv) land that is part of an Agri-Environment Climate Scheme (or successor schemes).

• The Church of Scotland suggested that ecclesiastical buildings be excluded from Part 5 eligibility. They made the point that churches in Scotland are responsible for a large number of buildings, the great majority of which are active community hubs, and that ecclesiastical buildings are designed for ecclesiastical use and are often not readily adaptable to other uses. Were a congregation to be deprived of a building in which it may have worshipped for many decades, it would be very difficult to make suitable alternative provision.
• The National Trust for Scotland said that consideration needs to be given to land that is already held for public benefit. This will include common good land and land owned by charities, where this is in pursuance of their public benefit purpose. Their preference was that where land is already held for public benefit (common good land, charitable ownership) it should be excluded from being bought under Part 5.

Scottish Government Response

In excluding land belonging to the Government of the United Kingdom our proposals follow the approach to excluded land in parts 2 and 3A of the Land Reform (Scotland) Act 2003. We see no need to take a different approach in this case.

With regard to suggestions for excluding further sorts of land, please see our comments for Question 1.

Question 3

Do you agree with what we suggest constitutes a tenancy for the purposes of Part 5?

Option	Total	Percent of All
Yes	10	50.0%
No	3	15.00%
Partially agree	4	20.0%
Not Answered	3	15.00%

• 17 consultation respondents answered this question, with 10 respondents agreeing with the consultation proposals; 3 respondents disagreed with the consultation proposals and 4 partially agreed.
• The NFUS, the NHS, SLE and the Scottish Churches Committee all disagreed with tied accommodation being treated as a tenancy. SLE also suggested that residential accommodation in connection with employment and education and in a building owned by the employer or education provider should not be treated as a tenancy.
• The Scottish Churches Committee were also concerned by the suggestion that the right to buy will apply to property serving as temporary accommodation for homeless people.
• The Law Society of Scotland said there was merit in there being consistency across the statute books in terms of the approach to tenancies. In respect of liferents, they note it is common for there to be a personal link between the liferenter and the trustees, which generally supports co-operation between the parties. An element of this may be lost where a community becomes the landowner. They also noted the potential for difficulties in the event that an employer no longer owns the accommodation which is tied to the tenant’s employment.

Scottish Government Response

Our proposals follow the approach to excluded land in parts 2 and 3A of the Land Reform (Scotland) Act 2003, and any transfer of land which includes a residential tenancy as part of a Part 5 transfer, could only be approved where Scottish Ministers decided it was in the public interest to do so. In doing so they would naturally consider the rights and needs of any parties involved, including the tenants, land owner, and any organisation or body with an interest in the tenancies, such as a church or the NHS.

Question 4

Do you agree with the Scottish Government’s decision not to exclude any further types of tenant’s interests from purchase under Part 5?

Option	Total	Percent of All
Yes	11	55.00%
No	6	30.0%
Partially agree	1	5.00%
Not Answered	2	10.0%

• 18 consultation respondents answered this question, 11 supporting the consultation proposal, 6 disagreeing with it and 1 partially agreeing with it.
• The James Hutton Institute, who agreed with the consultation proposals, said that it was important not to exclude any further types of tenant’s interests. It is important to retain flexibility for promoting sustainable development.
• The James Hutton Institute also said it is important that tenant’s rights are maintained through the enforcement of this part of the regulations. They said the accompanying guidance from the Scottish Government should highlight good practice in community engagement and encourage communities to consider the best interests of tenants who have existing rights to the land asset.
• The Law Society of Scotland suggested further consideration about whether it is desirable for an agricultural tenant’s interest to be capable of being purchased under this scheme. Such a tenant may not wish to exercise their pre-emptive right to buy but may wish to continue to farm on the land.
• The Scottish Property Federation (SPF) were of the view that a Part 5 community body should not have the right to acquire the tenant's right to lease of the land, where there is a non-residential tenant in occupation putting the land to productive economic use. They said this could potentially interfere with an individual's livelihood.
• SPF also said there are other tenant's rights that must be protected, such as utility providers, who have leases for substations, or other energy infrastructure including wind and solar farms and battery storage for energy, and that telecommunication providers' leases for their infrastructure such as mobile phone masts, telephone poles, etc. also need to be excluded. Pinsent Masons LLP made a similar point.
• Pinsent Masons LLP said that where there is a non-residential tenant in occupation putting the land to productive economic use they do not think that a Part 5 community body should have the right to acquire the tenant's right to lease of the land and potentially interfere with the individual's livelihood.

Scottish Government Response

For most cases, our approach follows that already outlined above, that no further types of tenant’s interest should be excluded.