Community Rights To Buy In Scotland

Consultation published on new community right to buy land to further sustainable development.

The Scottish Government has published a consultation on secondary legislation proposals relating to Part 5 of the Land Reform (Scotland) Act 2016 (the 2016 Act). This concerns the new community right to buy land to further sustainable development (Part 5 Right to Buy) which is expected to be introduced before the end of 2020 (date yet to be confirmed). Where it is successfully invoked, the Part 5 Right to Buy will lead to community ownership of land irrespective of whether the owner is willing to sell. In other words, a community body (CB) that successfully exercises their Part 5 Right to Buy will have an absolute right to buy the land.

The purpose of the consultation is to explain the Scottish Government's proposals in respect of a number of matters relating to the Part 5 Right to Buy, to present a broad outline of how the Part 5 Right to Buy will operate once it is in force and to give stakeholders the opportunity to put forward their views on the provisional legislation created for the Part 5 Right to Buy. The Scottish Ministers are inviting responses to the consultation by 18 September 2019. The purpose of this article is to review the proposed legal mechanisms for the Part 5 Right to Buy, whilst also placing the Part 5 Right to Buy in the context of the existing community rights to buy in Scotland.

Background and context

The Part 5 Right to Buy is the latest in a range of opportunities created by Holyrood legislation for CB's to acquire land. The precursors to the Part 5 Right to Buy are (in chronological order):

The community right to buy under the Land Reform (Scotland) Act 2003 (the 2003 Act) - Referred to as the "original" community right the buy, the 2003 Act rights - which remain available to communities today - were the first of their kind in Scotland. The 2003 Act - as varied by the Community Empowerment (Scotland) Act 2015 (the 2015 Act) - allows CBs to apply to the Scottish Ministers to register their interest in land. If and when that land is put up for sale by the owner, the CB have a right of first refusal (ie a pre-emptive right, rather than an absolute right) to buy the land. To successfully exercise this right, the CB must first demonstrate: (a) that the land will be used for sustainable development; (b) that the purchase is in the public interest; (c) that a significant number of members of the community have a connection with the land; and (d) that there is sufficient support from the community as a whole (as opposed to from the CB itself) for the purchase. The crofting community right to buy under the 2003 Act - The 2003 Act (as varied by the 2015 Act) also created separate rights allowing crofting communities the right to buy land which is subject to a croft. If exercised successfully, the crofting community right to buy is an absolute right to buy (ie as with the Part 5 Right to Buy, it does not require a willing seller). Asset transfer requests under the 2015 Act - Since 23 January 2017, eligible CB's have a right to apply to purchase, rent, manage or use land, buildings or other structures (eg bridges) from public bodies, including: local authorities, national park authorities, health boards, the Crofting Commission, the Scottish Environmental Protection Agency (SEPA), Scottish Water and the Police, Fire and Rescue services. The 2015 Act also requires these authorities to publish a public register of the land they own or lease. When applying, the CB must set out what it plans to do with the land and what benefits owning the land will bring to its community. During its evaluation of an application, the relevant public body must consider, amongst other things, whether the proposals will improve the economic development, regeneration, health, or social or environmental wellbeing of, or reduce inequalities within, the community referred to in the application. The benefits of the CB's proposals must be compared to the benefits of any other plans associated with the land, including continuing the current use of the land or its sale on the open market. There is a presumption in favour of the community proposal unless there are reasonable grounds for refusal. The community right to buy abandoned or neglected land under the 2015 Act - As of 27 June 2018, communities are entitled under the 2015 Act to apply to buy land which is abandoned, neglected or causing harm to the environmental wellbeing of the community. If invoked successfully, the community's right to buy is...

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