Many will be familiar with the Scottish Government’s policy objective to create a more diverse pattern of landownership in Scotland. Over a number of years there have been various pieces of land reform legislation including the Community Right to Buy Schemes. The most recent addition; the community right to buy to further sustainable development is set to come into force at the end of this month.
The Right to Buy Land to Further Sustainable Development (Applications, Written Requests, Ballots and Compensation) (Scotland) Regulations 2020 (the “Regulations”) will add to the existing community right to buy mechanisms in Scotland by bringing into force Part 5 of the Land Reform (Scotland) Act2016.
The Regulations will, where a successful application is made, provide community groups with an absolute right to buy land where they can show its purchase will further the goal of sustainable development.
As an absolute right, this means that it will apply to land that has not been marketed for sale, and enable a sale whether the existing owner wishes to sell or not. The Regulations will be open to all urban and rural land with the exception of land containing a privately owned home, croft land or some land owned by the Crown.
In order to make an application under the Regulations, community groups will need to demonstrate that they meet the test of sustainable development:
- The transfer of the land has to be in the public interest
- The transfer of the land is likely to result in a significant benefit to the community and is the most practicable way of achieving that significant benefit
- The transfer of land is likely to further the achievement of sustainable development in relation to the land
- Not granting consent to the transfer of land is likely to result in harm to the community.
- The community body must have already tried and failed to agree a deal to buy the land.
An application to buy land under the Regulations is a potentially lengthy twelve stage process:
- One – Community group to identify land which will further sustainable development. Must meet the tests outlined above.
- Two – The Community group proposing to take on the land must be in a recognised form for a Community Body and be approved by Scottish Ministers as such (as a company limited by guarantee, charitable body etc)
- Three – A third party can be nominated by the community group to exercise the right to buy on their behalf.
- Four – landowners, tenants and creditors of the land must be identified. Anyone with other rights over the land should also be identified as they could be awarded compensation if the right to buy is granted.
- Five – letters should be sent to the landowner seeking purchase of the land.
- Six – Landowner may respond agreeing terms of transfer, this stops the right to buy process and it becomes a private conveyancing transaction.
- Seven – Where no positive response is received from landlord then the right to buy application continues. The community group must conduct a community ballot to get the approval of its members to submit the application.
- Eight – Where a ballot supports an application, then the community group should formally make their application. Applications are to be submitted six months after the written request to the landlord but within six months of the community ballot.
- Nine – Application considered by Scottish Ministers. The application will be formally entered onto the Register of Community Interests in Land which will prevent the sale of the land to someone else in the interim.
- Ten – Decision on application
- Eleven – Where Ministers give a positive decision a valuer is appointed to determine the market value for the land. The community group then have 21 days to decide whether to proceed.
- Twelve – Appeals to be lodged within 28 days of Scottish Ministers decision.
The application and letters that form part of the process must follow certain statutory rules. As a result a number of template forms and letters have been provided by the Regulations to assist community groups. Responses from owners, tenants security holders etc are all required to follow a form set out in the Regulations. There are various timescales for each stage of the process to be complied with. Given the complexity of the Regulations and the Act itself anyone interested in this area should seek advice from as early a stage as possible to achieve the desired outcome.