A small area of overgrown ground has brought into focus the legal powers available to communities across Scotland to buy local land. St Andrews community body, ‘the Poets’ Neuk’, applied to acquire the ground from its current owner (who had no wish to sell) and create a public garden featuring poetry and a statue dedicated to Mary, Queen of Scots. The application was granted by the Scottish Government in January 2024 but was appealed by the landowner. The Sheriff has now determined that the Scottish Ministers acted properly and the right to buy should stand. As we digest the decision, it is a useful time to recap the various rights available to communities.
What Community Rights to Buy are available?
Several forms of Community Right to Buy now exist, having been introduced by successive governments. The current options are:
- the original Community Right to Buy;
- the Community Right to Buy ‘abandoned, neglected, or detrimental land’; and
- the Community Right to Buy ‘to further sustainable development’.
By using one of these options, a community may be able to sidestep the uncertainty of the open market or even, as with Poets’ Neuk, overcome a landowner unwilling to sell or transfer.
Each option requires the community to form an approved community body, and undertake ballots of the community to demonstrate support for proposals.
Original Community Right to Buy
Introduced by the Land Reform (Scotland) Act 2003, this enables a community to acquire land if the owner decides to sell on the open market—it is a right of first refusal only. The community must proactively identify land and register an interest in buying it, setting out their plans for the land. Initially this right applied only to rural communities but it was extended and now applies throughout Scotland.
The seller cannot sell without the community being given the opportunity to purchase, at a price agreed between the parties or determined by an independent valuer. To proceed with a purchase, the community must meet strict timescales to evidence the necessary community support and raise funds.
There is a procedure to deal with “late” applications, that is applications received after a seller has put land on the market. A greater level of community support is required in such circumstances.
Community Right to Buy ‘abandoned, neglected, or detrimental land’
Introduced under the Community Empowerment (Scotland) Act 2015, this right can compel a landowner to sell.
If land is wholly or mainly abandoned or neglected, or the use or management of the land is causing harm to the environmental wellbeing of a community, the community can apply to acquire it from its owner. The community must first have tried and failed to buy the land from the owner.
The community’s application must set out the reasons the community considers the land is abandoned, neglected or detrimental, why its proposals for the land are in the public interest and how its proposals further the achievement of sustainable development on the land.
Land in this situation includes land, inland waters and foreshore.
Community Right to Buy ‘to further sustainable development’
Introduced by the Land Reform (Scotland) Act 2016, this right again can compel a landowner to sell. It is this right which was used in the Poets’ Neuk case.
To succeed, the Scottish Ministers must be persuaded that the transfer of the land to the community would:
- further the achievement of sustainable development
- be in the public interest
- be likely to result in significant benefit to the community AND is the only practicable way of achieving that significant benefit.
In addition, the Scottish Minsters must be convinced that not granting consent to the transfer would be likely to result in harm to the community.
In determining significant benefit and harm, Scottish ministers consider the likely effect of granting consent (or not) on the lives of the persons in the community with reference to economic development, regeneration, public health, social wellbeing and environmental wellbeing.
Again, the community must have tried and failed to acquire the land before being able to make the application for the right to buy.
Further Options
For land and property owned by a public body, communities can make an asset transfer request under the Community Empowerment (S) Act 2015.
For property where the owner no longer exists, a new transfer scheme run by the King’s and Lord Treasurer’s Remembrancer can come to the rescue. Our recent article explains more about this programme, known as the Ownerless Property Transfer Scheme.
Summary
The above is a necessarily high-level summary of the community rights to buy currently in force in Scotland. The processes involved are highly detailed and require close attention to ensure they are followed correctly.
The Scottish Government is in the process of reviewing the effectiveness of Community Rights to Buy generally and the Land Reform (Scotland) Bill currently going through the Scottish Parliament contains provision further amending the original Community Right to Buy to provide more opportunities for communities to take ownership of land.
The Sheriff’s decision in the Poets Neuk case might be the next development in Scotland’s community right to buy story, but it certainly won’t be the last.
