Community right to buy abandoned, neglected or detrimental land: full guidance

Introduction

Use of this guidance

1. This guidance is intended to support communities through the right to buy abandoned, neglected or detrimental land process. The guidance covers most aspects from the initial identification of land to the completion of a purchase. It provides a step-by-step guide, setting out the considerations that need to be taken into account, the legal requirements that must be met and the various decision-making stages. Although the majority of the information is relevant to community groups, there is also useful information for landowners and other parties who may have a reason to be involved in the process.

2. This guidance applies to all applications for consent received by Ministers on or after 27 June 2018.

Community right to buy abandoned, neglected or detrimental land

3. The community right to buy abandoned, neglected or detrimental land (the "Part 3A right to buy") is created by Part 3A of the Land Reform (Scotland) Act 2003 ("the Act"). The Part 3A right to buy allows community bodies to apply to Ministers ("Ministers") for consent to exercise a right to buy land. Where Ministers grant consent, the community body has the right to buy the land, even if the owner is not seeking to sell it. That is, the community body can acquire the land compulsorily.

4. This right can be only exercised by a properly constituted Part 3A community body (a "Part 3A CB") when consent to do so is granted by Ministers. There are a number of requirements that must be fulfilled before an application can be considered.

5. If a Part 3A CB identifies an area of land which they believe is abandoned or neglected, or where the use or management of the land results in or is causing harm to their environmental wellbeing, the Part 3A CB can apply to Ministers for consent to exercise a right to buy the land under the Part 3A right to buy. However, before they are able to submit an application they must first try to address the situation by trying to buy the land from its current owner. Acquisition by way of an agreement is likely to result in a deal which better suits the needs of both the community and landowner. The process of making an offer, even where it is rejected, can help a Part 3A CB to gather information which will subsequently prove useful in preparing an application under the Part 3A right to buy. It can also help to avoid misunderstandings by, for example, confirming who owns the land, which could otherwise result in a flawed application.

6. If a Part 3A CB is of the view that the use or management of the land is such that it is resulting in or is causing harm to the environmental wellbeing of the community, they must also try to remedy that harm by contacting any relevant regulator(s) and requesting that the regulator(s) take action in relation to the land before they are able to submit an application under the Part 3A right to buy.

7. If the Part 3A CB is unsuccessful in trying to purchase the land from the owner and, if relevant, the result of the request to any regulator(s) does not remedy the matter, the Part 3A CB may apply for consent to exercise a right to buy the land under the Part 3A right to buy. If an application for consent to exercise a right to buy is granted by Ministers, the owner must sell that land to the Part 3A CB.

8. The Part 3A right to buy does not prevent the owner from developing the land, subject to any necessary planning approval. Part 3A CB's should not use the Part 3A right to buy as a way to stop an owner from developing the land in any way. For example, if an owner wishes to develop the land for housing or for other purposes that come under the planning process, this is for the planning authority to determine and not for the Part 3A right to buy process. These two processes are entirely separate matters and are in no way related. The existence of an application for consent under Part 3A of the Act will not affect Ministers consideration of any planning matter which may subsequently come before them for determination in terms of the relevant planning legislation.

9. If an owner has entered into an enforceable personal obligation to sell the land, for example, an option agreement, before a Part 3A CB's application for consent to acquire land has been submitted to Ministers, the application from the Part 3A CB will not be considered. If, however, Ministers find that an option agreement put in place after a valid application has been submitted to them, that option agreement will be deemed to have no effect.

10. The Part 3A right to buy requires to be exercised in accordance with Part 3A of the Act. The relevant legislation can be accessed via the following electronic links:

Land Reform Act (Scotland) 2003

http://www.legislation.gov.uk/asp/2003/2/contents

The Community Right to Buy (Abandoned, Neglected or Detrimental Land) (Eligible Land, Regulators and Restrictions on Transfers and Dealing) (Scotland) Regulations

http://www.legislation.gov.uk/ssi/2018/201/contents/made

The Community Right to Buy (Abandoned, Neglected or Detrimental Land) (Applications, Ballots and Miscellaneous Provisions) (Scotland) Regulations 2018

http://www.legislation.gov.uk/ssi/2018/140/contents/made

The Community Right to Buy (Abandoned, Neglected or Detrimental Land) (Compensation) (Scotland) Order 2018

http://www.legislation.gov.uk/ssi/2018/137/contents/made

Purpose of this guidance

11. The requirements of the Part 3A right to buy can be both complex and demanding. This guidance will provide valuable assistance in understanding the process and what is required at each stage. It covers the entire process for applying under the Part 3A right to buy, including most of the statutory requirements under Part 3A of the Act and the associated subordinate legislation.

12. The guidance is intended primarily to assist communities interested in seeking to acquire land under the Part 3A right to buy, but it will also be useful to landowners and creditors in a standard security with the right to sell the land who have an interest in an application made under Part 3A of the Act, as well as to third parties who might be affected by a Part 3A right to buy application for consent.

13. References to the Act and subordinate legislation are included to direct the reader to the relevant provisions should they wish to read it alongside this guidance. However, it should be possible to understand what is required by reading only the guidance.

14. There are also additional annexes which provide further information and useful tools.

15. This guidance cannot take the place of independent professional advice on individual applications. Any group wishing to create a Part 3A CB for the purpose of applying to exercise a Part 3A right to buy should obtain appropriate advice. Any landowner or other person with an interest in land who considers that an application made under the Part 3A right to buy may affect their land or interest is also recommended to seek advice. This may include legal advice, as well as advice on valuation, environmental and land management issues.

16. The guidance has been produced by the Scottish Government's Community Land Team. The team is happy to assist with any questions you may have about the Part 3A right to buy process. In particular, you may wish to speak to them before beginning the Part 3A right to buy process.

17. The Community Land Team cannot provide legal advice nor, due to the impartiality required in advising Ministers on a case-by-case basis, advice which would be seen as supporting a particular group (e.g. a Part 3A CB, a landowner or any third party) involved in a specific case.

18. This guidance is subject to review from time to time. If you are unsure whether you have the latest version available, or if you have any comments on the guidance itself, please contact the Community Land Team. Contact details are noted in Annex B.