Secondary legislation proposals for Part 3A of the Land Reform (Scotland) Act 2003: the community right to buy abandoned, neglected or detrimental land as introduced by the Community Empowerment (Scotland) Act 2015

1. Executive Summary

The Community Empowerment (Scotland) Act 2015 amended the Land Reform (Scotland) Act 2003 with regard to the provisions relating to community right to buy abandoned, neglected and detrimental land. This 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. It asked for responses by 20 June 2016.

51 responses were received, 49 from organisations and two from individuals. A summary of views from the responses follows.

Land which is eligible for purchase by a Part 3A community body
Most of the respondents (68%) were content with the proposals. However, some of them were more concerned about the assessment of applications and the criteria to be used, and clarification of some of those criteria, than whether or not land would be eligible.

Some respondents also commented on the largely physical nature of the elements around the "harm" element of the eligibility criteria. They stated that other non-physical elements, such as the social development, should be taken into account.

Land pertaining to land on which there is a building or structure which is a person's "home"
Most of the respondents (78%) were content with the proposals. However, some of the respondents who stated that they were content, had further comments which suggested that they did not entirely agree with the proposals.

Again, some of their issues were about clarification of some of the criteria. For example, several respondents stated that conditions such as access, vehicle storage etc. should be restricted to that associated with ownership of the home.

One respondent suggested that an area based approach could be used to determine what is considered to be within the curtilage of a house. They also noted that it was not currently a defined term.

Proposals for additional types of land that should not be eligible included; space for generating electricity for the home, essential services for a house such as a septic tank, soak away or a well/borehole to provide fresh water or land containing service media or infrastructure for a home. Other suggestions included land used for agricultural purposes, or land that already had planning permission.

Descriptions or classes of occupancy or possession which are, or are to be treated as, a tenancy
67% of those who responded agreed with the proposals.

The main concern of the respondents who disagreed with the proposals was that the complexity of tenancy agreements made it difficult to easily classify "types". One respondent suggested that the proposals around agricultural and crofting tenancies should be further clarified. Concern was also expressed that individuals occupying a building without the owner's permission could be covered under these definitions.

List of prescribed regulators
All of the respondents were in favour of the proposals. Some of them suggested that additional bodies should be added to the list. These included; Forestry Commission Scotland, Scottish Enterprise, Office of the Scottish Charity Regulator, and the Scottish Government Rural Payments and Inspections Directorate.

There was one correction: that Historic Scotland should now be referred to as Historic Environment Scotland.

Prohibitions on sale or transfer of land
80% of the respondents agreed with these proposals. Respondents only had minor comments in relation to the proposals. One suggested that the prohibition should be placed as soon as the community indicated that it was interested in the land. Another proposed that the date on which the notice was served should not be affected by the "vagaries of the postal system".

Persons subject to prohibition
67% of the respondents were in favour of the proposals.

One respondent suggested that if the land had become abandoned or neglected due to the fact that the owner may have lost the capacity to manage the land, then any guardian or some such person should also be subject to the prohibition. Another suggested that the suspension of rights relating to the transfer of land by agricultural or crofting tenants should also be included.

Transfers or dealings not subject to these regulations
57% of the respondents agreed with the proposals. Those that disagreed did not do so entirely, but only with some aspects.

For example, one respondent considered that the exceptions, including the anti-avoidance provisions, should be more closely aligned with the wording used in the Community Right to Buy. Another wished to add an exception for mortis causa transfers.

One responder requested that the regulations should not prevent the voluntary transfer from the owner to the Part 3A community body.

Suspension of rights over the land
As with the previous question, 57% of respondents agreed with the proposals.

One respondent was concerned that the power might not be within scope of the powers in the Act. This is because any suspension would not be enforceable against the community body (as the Act does allow for this) and it would be lost if the community gained ownership; the former owner could be found in breach of contract.

Other respondents considered that the proposals required more detail to be added for clarification purposes.

One respondent believed that practical commercial issues should also be considered in order to prevent arbitrary results.

Provision for or in connection with enabling a Part 3A community body to apply for the cost of ballot expenses to be reimbursed
Respondents were split evenly on this question, with 50% agreeing and 50% disagreeing.

One respondent considered that the 21 day period for the appeal was too short and that 60 days would be more realistic. Others requested that a timescale should be placed on the timetable for compensation, although they had different views on that timescale.

Entitlement to compensation
The majority of the respondents (60%) disagreed with the proposal.

The respondents had various reasons why they disagreed with the proposal. They included; the timescale was too short, there was no specification of the calculation used to determine the amount of compensation, there was no detail as to what type of expenses were eligible, there should be parity of the information required from both parties, and there should be a set time limit for the payment of compensation.