The right to buy land to further sustainable development: consultation

4. Conduct of The Ballot and Reimbursement of Expenses

Regulation Making Powers

Section 57(2)
Section 57(8)

Background and context

Conduct of the Ballot

It is a requirement under Part 5 that the community represented by the Part 5 community body have given their approval to a proposal to exercise the right to buy. Section 57(1) of the 2016 Act states that a community will have demonstrated their approval of the proposal by holding a ballot of the members of the community during the period of 6 months which immediately preceded the date on which the Part 5 application was made to Ministers.

Section 57(2) specifies that the ballot is to be conducted as the Scottish Ministers may by regulations specify.

As specified by section 57(3), these regulations must include provisions for the ascertainment and publication of:

• the number of persons eligible to vote in the ballot,
• the number who did vote, and
• the numbers of valid votes respectively cast for and against the proposed right to buy.
• The regulations must also include the form and manner in which the result of the ballot is to be published.

Reimbursement of Expenses

Section 57(7) of the 2016 Act specifies that the expenses of conducting a ballot are to be met by the Part 5 community body. However, section 57(8) specifies that Scottish Ministers may make regulations enabling a Part 5 community body to apply to them to seek reimbursement of the expenses of conducting a ballot under this section in certain circumstances as they may provide.

Proposals

The Scottish Government proposes that the conduct of the ballot should closely match the conduct of a ballot for the purposes of Part 3A of the Land Reform (Scotland) Act 2003 (the Community Right to Buy Abandoned, Neglected or Detrimental Land).

The Part 3A ballot process was developed based on years of experience of the Part 2 ballot process. It is a well-established process that works well, and provides for fairness and a secret postal ballot.

The use of similar ballot procedures will also provide consistency for communities and those who advise communities on rights to buy. We see no reason why the ballot process should differ in any substantial way for the respective rights to buy.

For the same reasons, it is also the view of the Scottish Government that the process for communities to seek reimbursement for Part 5 ballot expenses should also match closely the process for seeking expenses for a Part 3A application under the 2003 Act.

Details of the ballot for the purpose of demonstrating approval of a Part 3A right to buy application under the 2003 Act, and the process governing the reimbursement of expenses under that Act, are provided for in sections 6 to 16 of SSI 2018 No. 140, the Community Right to Buy (Abandoned, Neglected or Detrimental Land) (Applications, Ballots and Miscellaneous Provisions) (Scotland) Regulations 2018. These regulations can be found at the following web address; http://www.legislation.gov.uk/ssi/2018/140/pdfs/ssi_20180140_en.pdf

The key elements of the ballot process contained in the regulations for Part 3A are:

• Conduct of the ballot, including ensuring that the ballot is conducted in a fair and reasonable manner, is a secret ballot by post, and that all those eligible to vote get the opportunity to vote.

• Provision is made for proxy votes.

• Provision for the appointment of an observer, who is independent of the community body, is appointed to oversee, in person, the counting of the votes and the recording of the result.

• The results of the ballot must be published within 14 days beginning with the ballot deadline. They must be published in a digital or paper edition of a local newspaper circulating in the area where the community is located, as well as on the community body's website, if it has one.

• The community body must retain records of the ballot, including returned votes, for two years after the ballot deadline.

• Provision is made for the community body to apply to Scottish Ministers for reimbursement of the expense of conducting a ballot. This includes provision for Ministers to seek further information about the ballot expenses, to calculate the payment to the community body, and a requirement for Ministers to take a decision and pay the community within 60 days of receiving the application for reimbursement of ballot expenses.

• There is provision for the community body to appeal to the Lands Tribunal about Scottish Minister's decision on the reimbursement of ballot expenses.

Question 12

We invite respondents to consider whether they agree that ballot procedures, including applications for reimbursement, for Part 5 applications, should match those for applications under Part 3A of the 2003 Act, as outlined above.

Yes / No / Partially

If you wish, please provide further details.