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

1.2. Definitions of eligible and ineligible land

Overview

1.2.1. The Act defines what "land" and "eligible land" mean for the purposes of the Part 3A right to buy (section 97B and 97C of the Act). Eligible land is land that a Part 3A CB can apply to Ministers for consent to exercise a right to buy. The Community Right to Buy Regulations 2018 (no. 201) set out matters that Ministers must have regard to when considering whether the land that is the subject of an application is abandoned or neglected, or that the use or management is such that it is resulting in or causing harm to the environmental wellbeing of the community.

1.2.2. "Land" includes bridges and other structures built on or over land, inland waters, canals and the foreshore (section 97B of the Act).

1.2.3. Eligible land can either be land that is wholly or mainly abandoned or neglected (section 97C(2)(a) of the Act) or land where the use or management of that land is such that it results in or causes harm, directly or indirectly, to the environmental wellbeing of a relevant community (section 97C(2)(b) of the Act) (details below).

1.2.4. Eligible land does not include certain land specified in section 97C(5) of the Act and regulations 8 and 9 of the Community Right to Buy Regulations 2018 (no. 201). This includes:

• land held or used by a Minister of the Crown or a UK government department;
• land consisting of a right to petroleum, coal, gold or silver;
• land on which there is a building or other structure which is an individual's home other than a building or other structure which is occupied by an individual under a tenancy;
• land pertaining to an individual's home (as defined below);
• eligible croft land;
• any croft occupied or worked by its owner or a member of its owner's family; and
• land owned or occupied by the Crown that is designated as bona vacantia in the Crown, or its having fallen to the Crown as ultimus haeres.

Any land which falls within the types of land mentioned above must not be included in an application.

1.2.5. Part 3A CB's should consider the requirements for eligibility including the factors that Ministers will have regard to in determining whether they are satisfied that the land is either abandoned or neglected, or that the use or management is such that it results in or causes harm to the environmental wellbeing of the community. It is for the Part 3A CB to make a case in its application that the land is abandoned or neglected, or that the use or management results in or is causing harm to the environmental wellbeing of the community.

Land which is wholly or mainly abandoned or neglected

1.2.6. The Part 3A CB's application must include why they consider that the land subject to the application is wholly or mainly abandoned or neglected (section 97G(6)(b)(i) of the Act).

1.2.7. The Part 3A CB should give details as to why they are of the view that the land is abandoned or neglected. The Act does not require that the land is both abandoned and neglected (section 97C(2)(b)).

1.2.8. The Part 3A CB should be satisfied that, and include reasons why, the land is thought to be wholly or mainly abandoned or neglected. That is, they should consider the extent to which the land is abandoned or neglected. It is for the Part 3A CB to provide information as to why they consider this to be so.

1.2.9. It is for the Part 3A CB to provide information as to why they consider that the land they are seeking to acquire meets the criteria. The Community Right to Buy (Abandoned, Neglected or Detrimental Land)(Eligible Land, Regulators and Restrictions on Transfers and Dealing)(Scotland) Regulations 2018 sets out the matters that Ministers must consider when deciding whether land is wholly or mainly abandoned or neglected. Not all of the matters will be relevant to the land in a given application. It is for Minister's to be satisfied that the land is wholly or mainly abandoned or neglected.

The matters are set out under the following three broad headings. These are matters relating to:

(1) the physical condition of the land;

(2) designation or classification of the land; and

(3) the use or management of the land (or the lack of).

1.2.10. The Part 3A CB may find it helpful to consider these headings and the matters listed under them when preparing their application. This should help to identify relevant evidence to support the application.

(1) Matters relating to the physical condition of the land

Under the first heading, the Part 3A CB should consider the following questions about the land:

• What is the physical condition of the land or any building or other structure on the land, and what is the length of time that it has been in that condition?
• What is the extent, if any, to which the physical condition of the land or any building or other structure on the land is:

(1) a risk to public safety;

(2) has, or is likely to have, a detrimental effect on adjacent land;

(3) causes, or is likely to cause, environmental harm?

For the purposes of the Part 3A right to buy, "environmental harm" is defined in section 17(2) of the Regulatory Reform (Scotland) Act 2014 as:

(a) harm to the health of human beings or other living organisms;

(b) harm to the quality of the environment including;

(i) harm to the quality of the environment taken as a whole;

(ii) harm to the quality of air, water or land; and

(iii) other impairment of, or interference with, ecosystems;

(c) offence to the senses of human beings;

(d) damage to property; or

(e)impairment of, or interference with, amenities or other legitimate uses of the environment.

(2) Matters relating to the use or management of the land

Under the second heading, the Part 3A CB should consider the following questions about the land:

• What is the land or any buildings or other structure on the land currently being used for?
• How is the land or any buildings or other structure on the land currently being managed?
• Is the land, buildings or other structure used or managed for lawful public recreation, leisure activities or for the purpose of an activity that requires a permit or a licence?
• Is the land being held for the purpose of preserving or conserving the natural, historic or built environment?
• If the land or any building or other structure on the land is being used or managed, how long has this been the case?
• If the land or any buildings or structures are not being used or managed for any discernible purpose, how long has this been the case?

(3) Matters relating to designations or classifications of the land

Under heading (3), the Part 3A CB should consider the following questions about the land:

• Is the land, or any part of the land, a nature reserve or conservation area?
• Is the land, or any part of the land, a special site?
• Is any building or structure on the land a listed building or scheduled monument?
• Are there any policies or proposals in a local or strategic development plan, or associated guidance relevant to the land (or any part of the land)?
• Are there any policies or proposals in the National Planning Framework 3 relevant to the land (or any part of the land)?

Specific definitions for "conservation area", "environmental harm", "special site", "listed building", special monument, local development plan, strategic development plan and "nature reserve" are set out in the Community Right to Buy Regulations 2018 (no. 201).

It may also be useful to look at other sources of information, such as the Buildings at Risk Register, for information about any buildings that might be considered to be neglected. The Register is maintained by Historic Environment Scotland, and provides information on properties of architectural or historic merit throughout the country that are considered to be at risk. There is a link to the register in Annex B.

Land where the use or management is such that it results in or causes harm, directly or indirectly, to the environmental wellbeing of a relevant community

1.2.11. It is for the Part 3A CB to demonstrate why they consider that the land is being used or managed in such a way as to result in or cause harm to the environmental wellbeing of the relevant community (section 97C(2)(b) of the Act). The application must set out the Part 3A CB's reasons for this.

1.2.12. The Part 3A CB should consider the way in which the land is being either used or managed and whether the impact that the use or management of that land is resulting in or causing harm to the environmental wellbeing of the community. That harm may be directly or indirectly attributable to the use or management of the land.

Section 97C(3)(a) of the Act provides that "harm" includes harm, the environmental effects of which, have an adverse effect on the lives of persons comprising the relevant community. "Harm" will not include harm which, in the opinion of Ministers is negligible.

1.2.13. Regulation 6 of the Community Right to Buy Regulations 2018 (no. 201) sets out the matters that Ministers must consider when deciding whether land is eligible under Part 3A due to harm being caused to the environmental wellbeing of the community. These matters are:

• whether the use or management of the land or any building or other structure on the land, has resulted in or caused, directly or indirectly, a statutory nuisance;
• whether the land or any building or other structure on the land is subject to a current closure notice or closure order under the Antisocial Behaviour etc. (Scotland) Act 2004 (sections 26 or 29 respectively);
• whether the use or management of the land or any building or other structure on the land, has resulted in a warning notice being issued under the Antisocial Behaviour etc. (Scotland) Act 2004 (section 44).

Statutory nuisance is defined in Section 79(1) of the Environmental Protection Act 1990 as:

(a) any premises in such a state as to be prejudicial to health or a nuisance;

(b) smoke emitted from premises so as to be prejudicial to health or a nuisance;

(c) fumes or gases emitted from premises so as to be prejudicial to health or a nuisance;

(d) any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance;

(e) any accumulation or deposit which is prejudicial to health or a nuisance;

(f) any animal kept in such a place or manner as to be prejudicial to health or a nuisance;

(fa) any insects emanating from relevant industrial, trade or business premises and being prejudicial to health or a nuisance;

(fb) artificial light emitted from premises so as to be prejudicial to health or a nuisance;

(g) noise emitted from premises so as to be prejudicial to health or a nuisance;

(ga) noise that is prejudicial to health or a nuisance and is emitted from or caused by a vehicle, machinery or equipment in a street or in Scotland, road;

(h) any other matter declared by any enactment to be a statutory nuisance.

Land on which there is a building or other structure which is an individual's home other than a building or other structure which is occupied by an individual under a tenancy

1.2.14. Land on which there is a building or other structure which is an individual's home is not eligible land for the purposes of the Act and therefore the Part 3A CB cannot apply for consent to exercise a Part 3A right to buy in relation to it. This, however, does not extend to tenancies. If the building or other structure is occupied by an individual under a tenancy, it may still be eligible land for the purposes of the Part 3A right to buy. If the Part 3A CB are seeking to purchase land on which there are buildings or other structures which are an individual's home (not a home occupied under a tenancy), they will need to exclude such land from the application. A Part 3A CB should think carefully about the footprint of the land that comprises a person's home and how that land is being used by the home. This will normally be the land that is within or pertains to the curtilage of the home. This might, for example, be a garage, or a tool shed that is used by the owners.

1.2.15. The following land pertaining to an individual's home that is not occupied under a tenancy is also ineligible for the purposes of the Part 3A right to buy. This is set out in regulation 8 of the Community Right to Buy Regulations 2018 (no. 201). Part 3A CB's should ensure that such land does not fall within the boundaries of the land that they intend to apply for the right to acquire. This is:

• land which forms the curtilage of the home;
• land which is used for the storage of possessions owned by the occupants of the home that are used for the maintenance, upkeep or subsistence of that home;
• land that is used to store vehicles that are used by the occupants of the individual's home;
• land used for drainage, water supply or provision of services such as media or electricity for that home;
• land used to grow food which is principally for the subsistence of the occupants of that home;
• land used for activities including recreation and leisure activities which are incidental to the use of that home;
• land used to keep pets belonging to the occupants of that home;
• land used for businesses run by occupants of the individual's home;
• land used for access to the individual's home, if the land is owned by the same person that owns that home.

1.2.16. If there is a building or a structure which is an individual's home, land pertaining to land occupied by that home of one or more of the kinds listed above it must be excluded from the Part 3A application.

Other ineligible land

1.2.17. There are some other types of land that are ineligible under Part 3A of the Act and therefore should be excluded from a Part 3A CB's application, if appropriate. These types of land are:

• land that is held or used by a Minister of the Crown or government department; and
• land consisting of a right to petroleum, coal, gold or silver (whether or not that right is owned separately from the land in respect of where they are located).

Tenancies

1.2.18. Part 3A specifies that, whilst an individual's home cannot be eligible land, if that home is occupied by an individual under a tenancy, then it is eligible. The Community Right to Buy Regulations 2018 (no. 201) specify descriptions and classes of occupation or possession which are, or are to be treated as, a tenancy for the purposes of the Act. These are:

• occupancy or possession of tied accommodation. This is accommodation which is provided to an individual by their employer;
• occupancy or possession under a licence agreement that is in the nature of a tenancy;
• occupancy or possession of residential accommodation in connection with an individual's employment or education, or which is in a building or structure that is owned or occupied by the employer or education provider;
• temporary occupancy or possession offered, on a night-by-night basis, to individuals who are homeless persons; and
• occupancy or possession by a liferenter. This is where an individual has been granted the right to receive for life, the benefits of the property and to live in the building or structure, or on the land.

Identifying interests

1.2.19. The Part 3A CB will need to identify the interests associated with the land. The Part 3A CB should consider appointing someone who has professional experience, such as a suitably experienced chartered valuation surveyor or a solicitor, to assist with, advise on and, in some cases, undertake these tasks.

Eligible Land: What does each option under Part 3A require?

1.2.20. At an early stage it should be considered whether to submit an application that relates to (1) land that is wholly or mainly abandoned or neglected land, or (2) land where the use or management is such that it results in or causes harm, directly or indirectly, to the environmental wellbeing of a Part 3A community. If applying on the basis of the second, there is an additional requirement that the Part 3A CB must approach any "relevant" regulator(s) (see below and section 1.2.23 of this guidance). There are also some differences in the matters that Ministers must have regard to in determining whether the land is eligible depending on whether an application is submitted under the first or second categories (see section 1.10.12 of this guidance).

Relevant regulators

1.2.21. If a Part 3A CB is applying for consent to acquire land on the basis that the use or management of that land is resulting in or causing harm, directly or indirectly, to the environmental wellbeing of the relevant community, they must have contacted any "relevant" regulator, or regulators, to request it/them to take action in relation to the land in exercising its/their regulatory functions that could, or might reasonably be expected to, remedy or mitigate the harm on that defined community prior to submitting an application.

1.2.22. When Ministers consider an application, they will look at which regulators have been contacted and the steps the regulator or regulators have taken in relation to the land. Ministers will consider whether all relevant regulators have been contacted and, if so, whether any regulator has been able to mitigate or remove the harm to the environmental wellbeing of the community in question.

1.2.23. This guidance cannot say which regulator(s) should be approached as this will vary depending on the circumstances. The Part 3A CB will need to consider whether there are any regulators who may be able to address the harm in the first instance. As an example, where the issue is about water pollution, SEPA or Scottish Water may be a relevant regulator, while a local authority may be a relevant regulator for a noise issue. A Part 3A CB should consider carefully what the issues are that are associated with the land that are affecting the community. They should then look to see what functions the regulators have and whether these can be used to mitigate harm. The regulator may not at first be obvious. A regulator may say that it might be best to approach another one, in which case their advice should be followed up.