A new community right to purchase land was brought into effect earlier this year, adding to the original Community Right to Buy which had been introduced in 2003 (and the later Community Right to Buy abandoned, neglected or detrimental land).
On the 26 April the Right to Buy Land to Further Sustainable Development (Scotland) Regulations 2020 (the Regulations) came into force, giving effect to Part 5 of the Land Reform (Scotland) Act 2016.
What impact will this have for communities trying to effect a purchase from a landowner?
The Community Right to Buy
The original Community Right to Buy (CRTB) dates back to 2003 and forms Part 2 of the Land Reform (Scotland) Act 2003. It allows community bodies a 'first refusal' right to purchase land to which they have pre- registered their interest. This means that if a community body has fully registered a community interest in a property, they will be given a 'first refusal' right to purchase should the owner decide to sell at any point. If the community body decides to move forward with the purchase, there is support available from a wide array of private and public bodies.
The difficult with the CRTB was that ultimately it required the owner to make a decision to sell the property generally. The right was merely a pre-emptive right and if the owner doesn’t take steps to sell it is ineffective.
Nonetheless its presence has clearly led to a number of community buy-outs as a result of a negotiated sale between owners and communities.
Community Right to Buy abandoned, neglected or detrimental land
The Community Right to Buy abandoned, neglected or detrimental land (Abandoned Land RTB), brought into effect by Part 3A of the 2003 Act, allows community bodies to buy such land that is detrimental to the environmental wellbeing of the community. This includes any wholly or fully abandoned or neglected land, which can also include bridges and other structures built on or over land, inland waters, canals and the foreshore.
The owner of the land will have to sell to the community body, even if they did not intend to sell, upon the completion of a successful application. This right can only be used if the community body has tried and failed to agree with the owner to buy the land.
Community Right to Buy for Sustainable Development
As above, the Community Right to Buy for Sustainable Development (Sustainable RTB) grants communities yet another RTB mechanism to purchase either rural or urban land for the benefit of the wider community. This will exclude land that has a home on it or if it forms part of a croft. A successful application under Sustainable RTB will mean that the community body will receive an absolute right to purchase the land, even if the owner has not put the land up for sale.
To be successful, the community body must show that their purposes align with the furthering of sustainable development. They must prove the purchase of the land:
- will further sustainable development in the community;
- is in the public interest;
- will provide a significant benefit to the community; and
- that the rejection of the application would harm the community in terms of economic development, public health, social wellbeing, regeneration and environmental wellbeing.
Upon receipt of the application the owner of the land, any tenants (if applicable), any secured creditors (if applicable) and any other stakeholders will be invited to provide their opinion of the application. The Scottish Ministers will then decide whether to grant consent to the application or not. The purchase price will be the market value of the land. Upon the outcome, all parties involved in the application can appeal the decision to the Sheriff should they wish.
The intention is that the new Sustainable RTB, like the Abandoned Land RTB, is to be used as a last resort. That is to say, the community body must have already attempted and failed to purchase the land by other means.
Is this the final piece in the jigsaw?
Both the Sustainable RTB and the Abandoned Land RTB are rights which may be exercised whether or not the owner wishes to sell the land and, unlike the CRTB, the landowner cannot control the timescales. However, communities may feel the test is set too high.
On its own, the Sustainable RTB cannot be described as the final piece in the jigsaw, but then Land Reform and indeed the 2016 Act should be seen as a package of measures. If used in conjunction with the other Land Reform rights it can be an effective tool.
As stated above, many Community purchases have tended to proceed outwith the legislation and we would expect both the Sustainable RTB and the Abandoned Land RTB to lead to more negotiated purchases.
It may not be the full answer, but we believe that communities will invariably find that it can be an important tool in trying to effect a purchase from a landowner.