The right to buy land to further sustainable development: consultation

3. Requests from a Part 5 Community for Voluntary Transfer of Land and Tenant’s Interest

Regulation Making Powers

Section 56(9)(a)(b) & (c)

Background and context

Section 56 of the Land Reform (Scotland) Act 2016 ('the 2016 Act') sets out how Scottish Ministers must decide whether to consent to a Part 5 right to buy application. It includes both procedural requirements and sustainable development conditions against which a Part 5 application must be assessed.

Section 56(1)(b) provides that Scottish Ministers must not consent to a Part 5 Right to Buy application unless they are satisfied that the procedural requirements under section 56(3) have been met. In relation to land, the procedural requirements include that before the period of 6 months ending on the day when a Part 5 application was made, the Part 5 community body have submitted a written request to the land owner to transfer the land to the community body or to the third party purchaser as the case may be.

The procedural requirements under section 56(7)(a), relate to applying to purchase a tenant's interest and section 56(6) requires that Scottish Ministers must not consent to a Part 5 Right to Buy application to buy a tenant's interest unless they are satisfied that these requirements have been met. One such requirement is that Scottish Ministers must be satisfied that before the period of 6 months ending on the day when a Part 5 application was made, the Part 5 community body have submitted a written request to the tenant asking them to assign the tenant's interest to the community body or the third party purchaser as the case may be.

Section 56(3)(a) and section 56(7)(a) require that a community body must have submitted its written requests to the land owner, and where relevant a tenant, at least 6 months prior to submitting a Part 5 application to Scottish Ministers.

Section 56(9) allows Scottish Ministers to make provision in regulations about:

• the form and content of requests by the Part 5 community body in subsections 56(3)(a) (to the land owner) and 56(7)(a) (to a tenant regarding their interest);

• the form and content of responses from the land owner to requests referred to in subsection 56(3)(a); and

• the circumstances in which owners of land are to be taken not to have responded or not to have agreed to requests from the Part 5 community body under subsection 56(3)(a).

Proposals

Form and content of Part 5 community body requests to land owners and tenants for transfer of the land or tenant's interest as the case may be.

Under section 56(9)(a), Scottish Ministers are to prescribe the form and content of requests that a Part 5 community body must make to the land owner to transfer the land to them, and to any tenant to transfer their interest to them.

There is a draft form at Annex A for the community body to send to the land owner, and one at Annex B for the community body to send to the tenant.

The aim of these is to ensure that the Part 5 community body gives the land owner or tenant information which allows the recipient to understand the Part 5 process, to understand the nature and validity of the request and the community body, and the nature of what the community body wants to do with the land or tenant's interest. For the land owner recipient, it also includes options for responding and the consequences of responding or not responding, and of agreeing or not agreeing to the Part 5 community body's request.

Question 6

Do you agree with the proposals for a draft form at Annex A, for the Part 5 community body to send to the land owner seeking transfer of land?

Yes / No / Partially

If you wish, please provide further details, including any suggestions for improvements to the form.

Question 7

Do you agree with the proposals for the draft form, at Annex B, for the Part 5 community body to send to the tenant whose interests they are seeking to buy under Part 5?

Yes / No / Partially agree

If you wish, please provide further details, including any suggestions for improvements to the form.

The form and content of responses from the land owner to requests referred to in subsection 56(3)(a), and the circumstances in which owners of land are to be taken not to have responded or not to have agreed to requests from the Part 5 community body under subsection 56(3)(a).

Section 56(9)(b) allows Scottish Ministers to prescribe the form and content of responses from the land owner to requests from a Part 5 community body to transfer land under section 56(3)(a). Please note that there is no similar requirement in relation to a response from tenants regarding a tenant's interest.

The Scottish Government has included a response form for the land owner to use to respond to the community, as part of Annex A. The land owner will therefore receive this form at the time the community body writes to the land owner.

The draft form at Annex A provides the opportunity for the land owner to choose one of the following options:

• To agree to the community body's proposals.

• To not agree to the community body's proposals.

• To indicate they do not agree to the community's proposals, but that they would like to discuss other options with the community. In terms of the Part 5 process, this would be considered a refusal of the community body's proposals, although outwith the official Part 5 process it could offer an opportunity for the land owner and community to work together.

The land owner does not have to use the form to respond, but we propose that if the land owner does not use the official form to respond, this will be regarded as not responding to the community body's request.

The aim of this is to ensure that for the purposes of the Part 5 process, insofar as they affect the Part 5 process, official exchanges between the land owner and the Part 5 community body are transparent and provide the means of clearly indicating the intent of the corresponding parties. Having a tick box allows the land owner to indicate clearly whether they agree or not with the community body's proposals.

We also propose that where a land owner does not agree to the Part 5 community body's request in its entirety, this will be regarded as not agreeing to the community body's proposals for the purposes of Part 5. This is to ensure that the Part 5 process is clearly focussed on the specific community proposals outlined in the community body's request in the form at Annex A

Question 8

Do you agree with the proposal to provide an official form, as part of the form at Annex A, which the community body send to the land owner, for the land owner to use to respond to the community body request for a land transfer?

Yes / No / Partially

If you wish, please provide further details.

Question 9

Do you agree with the options in the form for the land owner to respond to the community body request for a land transfer?

Yes / No / Partially

If you wish, please provide further details.

Question 10

Do you agree that for the purposes of indicating that the land owner agrees to the community body's proposals, responding by using the form at Annex A is the only valid form of response, and that where a land owner indicates acceptance of the community body's proposals by any other means, this shall be regarded as not responding to the community body for the purposes of the Part 5 process?

Yes / No / Partially

If you wish, please provide further details.

Question 11

Do you agree with the proposal that where a land owner has not agreed to the Part 5 community body's transfer proposals in full, this is to be considered as not agreeing to the proposals for the purposes of the Part 5 process.

Yes / No / Partially

If you wish, please provide further details.