Communities in Scotland have significant power and rights to acquire land, but what exactly are those rights? Earlier this month, an east of Scotland community group became the first organisation in an urban area to benefit from community right to buy powers, when Action Porty was given consent to buy the former Portobello Old Parish Church and halls. This was only possible due to changes that have taken place since the first Right to Buy became law.
Indeed, since the original Community Right to Buy was introduced by Part 2 of the Land Reform (Scotland) Act 2003, much has changed. An extended right to buy was brought in by the Community Empowerment (Scotland) Act 2015, which made considerable amendments to the original rights.
Further legislative changes are imminent but the result of such a whirl of Land Reform legislation over recent years is that not everyone is clear about just what rights apply in Scotland, who can exercise them and when.
Here, we take a comprehensive look at the Community Right to Buy and what has changed over the years.
How some of the proposed provisions will operate in practice may still be unclear, but what is clear is that the imminent additional rights, when added to the already-extended rights under the extension to the original community right to buy, will give communities a strong hand when it comes to acquiring land.
The original Community Right to Buy Land
Part 2 of the Land Reform (Scotland) Act 2003 gave a community body the right to register an interest to buy "registerable land" which meant any land except "excluded land" and "excluded land" meant land outwith designated settlements of over 10,000. Therefore this meant that only communities with a population of up to 10 000 were eligible to register an interest and so it was a right which applied only to predominantly rural land.
The Extended Community Right to Buy Land
The rights mentioned above were amended by virtue of the Community Empowerment (Scotland) Act 2015 which amends Part 2 of the Land Reform (Scotland) Act 2003 (“the 2003 Act”). The changes came into effect from 15 April 2016.
The key points are:
- Land affected: In terms of Section 33, the right to register to buy land is extended to any land, including within settlements, so this essentially means any land connected to the community which is registering the interest. Again there is a definition of "excluded land" which means "land consisting of a separate tenement which is owned separately from the land in respect of which it is exigible". However this is subject to subsection 2A which refers to land consisting of salmon fishings or mineral rights (other than rights to oil,coal, gas, gold or silver) which ARE owned separately from the land in respect of which they are exigible but which are NOT excluded as separate tenements and so ARE land in which a community interest may be registered.
- Types of community body: the bodies that can register the right to buy are now either (a) a company limited by guarantee (b) a Scottish Charitable Incorporated Association (a SCIO) or (c) a community benefit society.
- Criteria to be satisfied for registration: the criteria are that (a) the community body must demonstrate that its main purpose will further the achievement of sustainable development (b) a significant number of members have connection with the land and the land is sufficiently near that land (c) there is a sufficient level of community support for the proposal (10per cent has been thought sufficient) and (d) it is in the public interest.
- Timing of an application: an application should be made before the land is put on the market, though can a late application be made after the land has been put on the market? Yes, but only if made before missives have been concluded and in those cases, additional criteria need to be met. A word more on timing - if a community body submits an application to register an interest but missives have already been concluded for the sale of that land, or an option to acquire the land has been entered into, then Scottish Ministers must decline to consider the application.
- Effect of successfully registering an interest: as regards time periods, if a community body successfully registers an interest, then once registered in the Register of Community Interests in Land, registration lasts for five years. In the six-month period before a registered interest is due to expire, and if successful, the interest will be re-registered for another 5 years. The effect of registration of an interest is that the landowner may not transfer the land without offering it to the community first unless it falls within the category of an exempt transfer (such as a gift or a transfer between spouses or a transfer by a Registered Social Landlord in pursuance of the power conferred by s.107 of the Housing (Scotland) Act 2010).
- Activation of the right to buy: when the owner of the land affected by the registered interest decides to sell it, they must intimate this to the community body and to the Scottish Ministers. The next steps (and there are eight months in which to complete these) are:
- a valuation of the registered land is carried out (arranged by Scottish Ministers)
- a ballot is taken of local community to approve the purchase
- Scottish Ministers consent i.e all tests still met and no change of circumstances
- funds must be secured by the community body for the purchase
- actual conveyance to the body in exchange for payment.
Snapshot of what has changed and how the rights have been extended
The three highlights are:
- The land which is registerable – no longer just rural land, it is now any land including salmon fishings and minerals rights (subject only to the separate tenement exception mentioned above)
- The bodies able to register a right – this is now an expanded list: (a) a company limited by guarantee (b) a Scottish Charitable Incorporated Association (a SCIO) or (c) a community benefit society..
- Longer time-scale to complete the process and purchase after the right to buy has been triggered – there are now 8 months rather than 6 months.
It is important to note, however, that the right is still a pre-emptive right to buy if the landowner tries to sell the land i.e in other words, it can only be exercised if the landowner takes steps to sell the land.
Further rights which are in prospect but not yet in force
There are also further community rights to buy which are in prospect and these are as follows:-
A. The right to buy abandoned, neglected, or detrimental land.
The first of these is under the Community Empowerment (Scotland) Act 2015 and relates to the community right to buy abandoned, neglected or detrimental land.
This Act seeks to amend the 2003 Act by inserting a new Part 3A of the 2003 Act and s.97C will contain the right to buy eligible land. These provisions are not yet in force.
Eligible land is:
(a) Land which is wholly or mainly abandoned or neglected, or
(b) The use or management of the land is such that it results in or causes harm, directly or indirectly, to the environmental well-being of a relevant community.
Excluded land is defined in s.97C(5) as individuals’ homes, croft land and crofts, land owned by the Crown having vested bona vacantia and other prescribed land.
The community body and community have similar definitions to those in terms of the amended Part 2 of the 2003 Act and which we outlined above, and the application is similar though it must contain details of why the land is considered to be abandoned or neglected and why it is considered to be used in a way causing harm.
The criteria for consent are similar tests to those considered above, for example, public interest tests, sustainable development tests, significant support, land near the community etc, but there is also now the test that achievement of sustainable development in relation to the land would be unlikely to be furthered by the owner of the land continuing to be its owner, which would appear to be a new test.
There is to be a new Register of Community Interests in Abandoned, Neglected or Detrimental land and the Keeper is to register details of applications made.
Apparently and importantly, this right when it comes into force will not have to rely on the landowner wishing to sell the land.
B. The right to buy land to further sustainable development
The second of the new extended rights is the right to buy land to further sustainable development and this right is contained within Part 5 of the Land Reform (Scotland) Act 2016 but this right is not yet in force.
When in force, this will provide communities with another non-pre-emptive right to buy and will also apply to all land but excluding homes and land pertaining to the home, although not homes occupied under a tenancy.
Land that has fallen to the Crown is also excluded and other land may be excluded by regulations.
As with the right to buy abandoned, neglected or detrimental land, there does not need to be a willing seller.
The criteria for the right to be approved are:
- Transfer of the land is likely to further the achievement of sustainable development
- It is in the public interest
- It is likely to result in significant benefit to the community and is the only, or most practicable way of achieving that benefit.
- Not granting consent to the transfer is likely to result in significant harm to the community.
Conclusion – what will the changes mean in practice?
Thus, it can be seen that these additional rights once in force, when added to the already-extended rights we’ve considered above under the extension to the original community right to buy, will give communities significant power and rights to acquire land.
Get in touch
For further consideration of this point or for further information on any of the points raised in this article, please get in touch
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