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

3. Land which is eligible for purchase by a Part 3A community body

Background

When deciding whether land is eligible to be bought by a Part 3A community body, either because it is abandoned or neglected or because the use or management of it is causing harm to the environmental wellbeing of the local community, Ministers are required to have regard to prescribed matters.

The consultation includes a list of the prescribed matters to which the Scottish Government consider Ministers should have regard when deciding whether land is eligible land.

These are:

• The physical condition of the land or any building or other structure on the land, and the length of time for which it has been in such a condition;
• Whether, and to what extent, the physical condition of the land or any building or other structure on the land is detrimental to the amenity of land which is adjacent to it;
• Whether, and to what extent, the physical condition of the land is a risk to public safety;
• Whether the physical condition of the land or any building or other structure on the land is causing or is likely to cause environmental harm;
• Whether the physical condition of the land complies with the standards for good agricultural and environmental condition;
• The purpose for which the land or any building or other structure is being used or has been used, and the length of time for which it has been so used;
• If it appears to the Scottish Ministers that the land or any building or other structure on the land is not being used for any particular purpose, the length of time for which it has not been so used;
• Whether, and to what extent, the land or any building or other structure on the land is being used for public recreation;
• Whether, and to what extent, the land is being held for the purposes of permanent preservation for the benefit of historic or national interest and for the preservation of its natural aspect and features and animal and plant life;
• Whether, and to what extent, any building or other structure on the land is being held for the purposes of the permanent preservation for the benefit of historic or national interest and for the preservation of its architectural or historical features so far as of national or historic interest;
• Whether the land, or any part of the land, is or forms part of a nature reserve or conservation area;
• Whether the land, or any part of the land, is designated a special site;
• Whether any building or structure on the land is a listed building;
• Whether any building or structure on the land is a scheduled monument.

Question 1: Do you agree with the above matters?
41 respondents answered this question, with 28 agreeing and 13 disagreeing.

Question 1a: If not, why not?
24 respondents answered this question. The response indicates that some respondents who stated that they agreed with the proposals, did not, however, entirely agree.

The majority of respondents to this question asked for clarification of the criteria used.

For example, West Dunbartonshire Council stated that it was "generally concerned about lack of specification. In terms of matter five in the table, can further clarification be provided on what is considered to be the standard for land in a good agricultural and environmental condition? In terms of matter seven in the table, how is it proposed to establish whether land not being used for a particular purpose and the length of time so unused? Presumably detailed Guidance will be provided on these matters."

Shetland Islands Council stated that "These criteria are non-specific. They do not define the standards that they would apply and do not, for example, define timescales. Also, where does the evidence come from and who verifies it?"

Highlands and Islands Enterprise was concerned that the matters relating to harm were "strongly focused on the physical condition of the land does not include wider social and community development considerations."

Other respondents mentioned categories that should be added or removed. Some repeated these in their responses to question 2 or 3.

One respondent, Community Land Advisory Service, considered that the three elements (abandoned, neglected or causing harm) were three separate issues and should be treated as such.

Question 1b: Are there any matters you believe should be added?
36 respondents answered this question.

Not all of the respondents listed additional matters. Some addressed procedural issues, such as the introduction of a resale clause, or reasons for the condition of the land and consideration of economic impact.

Additional matters included;

• Local Authority Enforcement Notices
• Transport Corridors
• Local Authority Local Development Plans
• Land used for access to adjoining property
• Land used for drainage
• Land designated for future housing development
• Land with live planning permission
• Land which forms part of an agricultural business
• Conservation agreements.

Other respondents, such as Community Land Scotland, expanded further on the comments made in relation to the consideration of harm. They believed that it is about more than physical considerations. They suggested that additional consideration should be given to the following matters:

a) Whether and to what extent the condition, management or use of the land is detrimental to the amenity and prospects of the relevant community;

b) Whether and to what extent the condition, management or use of the land is detrimental to the preservation of the relevant community or its development;

c) Whether and to what extent the condition of the land, its management or use contributes to reducing the social development of the relevant community;

d) Whether it appears to Scottish Ministers, and to what extent, the condition, management or use of the land is detrimental to the realisation of the human rights of the relevant community.

Question 1c: Are there any matters you believe should be removed?
21 respondents answered this question.

Most respondents simply stated that they did not want to see any of the matters removed. The only exception was Community Land Advisory Service. It stated that Public Recreation should be removed as it was irrelevant and could have unintended results as a result of unauthorised recreational use being held up as evidence that the land is not abandoned or neglected. It also considered that the 9 ^th-14 ^th bullets (relating to historic, scheduled or listed buildings/sites) should be removed as they are not needed or relevant to the decisions made by Ministers. This is because there will clearly be evidence of conservation or preservation in relation to that land.