Community Empowerment (Scotland) Act 2015: asset transfer guidance for community transfer bodies
Guidance for community bodies on the statutory asset transfer scheme.
15. Decision notice
15.1. Having made its decision, the relevant authority must issue a decision notice to the community transfer body, under section 82(7) of the Act, setting out its decision and the reasons for it. This must be done within six months from the validation date, or a longer period if agreed between the relevant authority and the community transfer body. If no decision notice is issued within this time, the community transfer body has the right to request a review or appeal to the Scottish Ministers, as appropriate.
15.2. The time taken by the relevant authority to make its decision will depend on various factors. It may be possible to make a decision in less than six months if the request is straightforward or you have discussed your proposals in detail before submitting the request. On the other hand, a longer period may be required for complex requests or where the relevant authority has to seek permission from someone else to agree to the transfer. There may also be timing issues if requests have to be considered by a Committee at its regular meetings. Relevant authorities are encouraged to let the community transfer body know about any potential delays as soon as possible.
15.3. If the relevant authority asks you to agree to a short extension to the timescale to make a decision, in most cases it will be in your best interests to agree. The alternative is to apply for a review or appeal, which is likely to take more time and effort before reaching a conclusion. Of course, it is for you to decide in the individual circumstances of each case. You can agree an extension more than once, but just because you have agreed to one extension does not mean you have to agree to more. An extension should be agreed before the prescribed (or previously extended) period expires.
15.4. The information to be provided in a decision notice is set out in sections 82(7) and 83(2) of the Act, and regulation 11 of the Procedure Regulations. It must do the following:
A. state the date on which the asset transfer request was made
B. identify the community transfer body which made the request
C. identify the land to which the request relates
D. set out the authority's decision to agree to or refuse the request
E. set out the authority's reasons for its decision
F. contain notification of the right of appeal or review, how an appeal or application for review may be made, and the date by which it must be made.
and if the request is agreed:
G. specify the terms and conditions on which the authority is prepared to transfer ownership, lease the land or confer the rights requested
H. state that, to proceed with the process, the community transfer body must submit an offer,
I. specify the period within which the offer must be submitted (this must be at least 6 months from the date of the decision notice)
A, B, C - date of the asset transfer request, community transfer body and land to which it relates
15.5. This information is simply to identify the request to which the decision notice relates.
D, E - the authority's decision and reasons
15.6. The requirement for the relevant authority to give reasons for its decision is a key part of the legislation. An asset transfer request must be agreed unless there are reasonable grounds for refusal: it is the decision notice that will set out those grounds. The reasons should be as transparent as possible, whether the request has been refused because an alternative proposal is preferred, or because of weaknesses in the community transfer body's case.
15.7. If the request is agreed, the reasons may simply be that there were no reasonable grounds for refusal. However, if there were alternative proposals for the property, or objections to the transfer, the reasons might set out why the community transfer body's proposals were favoured.
F. Notification of the right of appeal or review
15.8. The decision notice should tell you what your rights are to appeal or apply for a review, depending on the relevant authority to which the request is made, and the decision which has been made. It should say who the appeal or application for review should be made to, with the address it should be sent to, and refer to the guidance on how to make the application (see chapters 17 to 20). You should also be given the date by which the appeal or application for review must be made - this is 20 working days beginning with the date of the decision notice.
G. Terms and conditions for transfer
15.9. The decision notice should set out the terms and conditions (including price or rent) on which the relevant authority would be prepared to agree to the transfer. These may be the same as or different from any terms and conditions set out in the asset transfer request, or may add to those in the request. However, if they are significantly different you may apply for a review or appeal against them.
15.10. The terms and conditions set out in the decision notice form the basis of the offer which the community transfer body has to make to proceed with the transfer, and for subsequent negotiations to conclude the contract. The terms and conditions should be detailed enough for you to decide whether or not you are willing to agree, and to write a meaningful offer. They should set out anything the relevant authority considers essential to be included in the contract, and should be clear about anything that may affect the community transfer body's ability to deliver their proposals or secure funding, such as any restrictions on use or conditions requiring repayment if benefits are not delivered.
H. Requirement to submit an offer, and date
15.11. As the next stage in the process, if the community transfer body wishes to proceed, you must submit an offer to the relevant authority. This offer must reflect the terms and conditions in the decision notice, and may include any other reasonable terms and conditions that are necessary or helpful to secure the transfer of the rights requested in a reasonable time. The decision notice must set out this requirement, and tell you the date by which the offer must be submitted. It is for the relevant authority to set that date, but it must be at least 6 months from the date of the decision notice.
Notification and Publishing
15.12. The decision notice must be sent to the community transfer body at the contact address, and published online. The relevant authority must inform anyone who made representations (and provided an address) of its decision and where the decision notice can be seen.
Email: Jean Waddie
Phone: 0300 244 4000 – Central Enquiry Unit
The Scottish Government
St Andrew's House
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