Right to Buy Land to Further Sustainable Development: application guidance

Introduction

Use of this guidance

1. This guidance is intended to provide support to any party who is, or who might become, involved in the right to buy land to further sustainable development 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 and the legal requirements that must be met. Although the majority of the information is relevant to community bodies, 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 Scottish Ministers on or after 26 April 2020.

Purpose of this guidance

3. The requirements of the Part 5 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 5 right to buy, including most of the statutory requirements under Part 5 of the 2016 Act and the associated subordinate legislation.

4. The guidance is intended primarily to assist communities seeking to acquire land and, in some circumstances a tenant's interest under the Part 5 right to buy, but it will also be useful to landowners, tenant's and creditors in a standard security with the right to sell the land who have an interest in an application made under Part 5 of the 2016 Act, as well as to third parties who might be affected by a Part 5 right to buy application for consent.

5. References to the 2016 Act and subordinate legislation are included to direct the reader to the relevant provisions, should they wish to read it alongside this guidance.

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

7. This guidance cannot take the place of independent professional advice on individual applications. Any group wishing to create a Part 5 community body for the purpose of applying to exercise a Part 5 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 5 right to buy may affect their land or interest may also wish to seek advice. This may include legal advice, as well as advice on valuation, environmental and land management issues.

8. 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 5 right to buy process. In particular, you may wish to speak to them before beginning the Part 5 right to buy process.

9. 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 5 community body, a landowner or any third party) involved in a specific case.

10. 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.

An Overview of the Right to buy land to further sustainable development

11. The right to buy land to further sustainable development (the "Part 5 right to buy") under Part 5 of the Land Reform (Scotland) Act 2016 ("the 2016 Act"), allows community bodies to apply to Scottish Ministers ("Ministers") for consent to exercise a right to buy land. They can also apply for the right to buy the tenant's interest along with the land itself. They may also request that a third party purchaser nominated by the Part 5 community body ("third party purchaser"), purchase the land on their behalf. Where Ministers grant consent, the Part 5 community body (or third party purchaser) has the right to buy the land, even if the owner is not seeking to sell it. That is, the land can be acquired compulsorily.

12. This right can be only exercised by a properly constituted community body compliant with Part 5 (a "Part 5 community body"), or a third party purchaser, 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. In order for a Part 5 community body to be considered properly constituted, it must have received written notification informing them of this fact, from Scottish Ministers (section 1.4 has more detail on this).

13. If a Part 5 community body identifies an area of land which they believe is eligible under the 2016 Act, the Part 5 community body can apply to Ministers for consent to exercise a right to buy the land. However, at least six months before they submit an application they must first have submitted a written request to the owner to transfer the land to the Part 5 community body or third party purchaser. Often, acquisition by way of an agreement will result in a deal which better suits the needs of both the community and landowner. It can also help to clarify important information. For example, this process may help to confirm who owns the land or help to inform the landowner of what the Part 5 community body would like to achieve. There is a diagram in Annex A which helps to show the various steps and timescales involved in the right to buy process.

14. A Part 5 community body may also apply to Ministers for the right to buy the tenant's interest, as long as they are also applying to buy the land to which that interest relates. If this is the case, then the Part 5 community body must also write to the tenant requesting that they assign the tenant's interest to the Part 5 community body. This must be done at least six months before they submit the application to buy the tenant's interest.

15. The application to buy the tenant's interest does not have to be submitted at the same time as that application to buy the land, but it must be received before Ministers make a decision on the application to buy the land.

16. If the landowner doesn't respond or doesn't agree to the Part 5 community body's request to transfer the land to them, the Part 5 community body may apply for consent to exercise a right to buy the land under the Part 5 right to buy. If consent to exercise a right to buy is granted by Ministers, the owner must sell that land to the Part 5 community body, or third party purchaser for market value (or a value agreed between the owner and the Part 5 community body).

17. The Part 5 community body, the owner or the tenant have a right to appeal the decision of Ministers.

18. In addition, to the request to transfer, the Part 5 community body must also conduct a ballot of the defined community. This must be carried out in the six months prior to submitting an application. More information on the ballot is given later on in this guidance.

19. The Part 5 right to buy does not prevent the owner from developing the land whilst the process is ongoing. Part 5 community bodies should not submit an application under the Part 5 right to buy to try 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 comes under the planning process, this is for the planning authority to determine and not for the Part 5 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 5 of the 2016 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.

20. If an owner has entered into an enforceable personal obligation to sell the land (for example, an option agreement to sell to someone else should planning consent be granted), before a Part 5 community body's application for consent to acquire land has been submitted to Scottish Ministers, the application from the Part 5 community body will not be considered. The Community Land Team will be able to provide details if required. If, however, Ministers find that an option agreement was put in place after a valid application has been submitted to them, that option agreement will be deemed to have no effect.

21. The Part 5 right to buy requires to be exercised in accordance with Part 5 of the 2016 Act. The relevant legislation can be accessed via the following electronic links:

Land Reform Act (Scotland) 2016
http://www.legislation.gov.uk/asp/2016/18/part/5

The Right to Buy Land to Further Sustainable Development (Eligible Land, Specified Types of Area and Restrictions on Transfer, Assignations and Dealing) (Scotland) Regulations 2020
http://www.legislation.gov.uk/ssi/2020/114/contents/made

The Right to Buy Land to Further Sustainable Development (Applications, Written Requests, Ballots and Compensation) (Scotland) Regulations 2020
http://www.legislation.gov.uk/ssi/2020/21/contents/made