Community Empowerment (Scotland) Act 2015: asset transfer guidance for community transfer bodies
Guidance for community bodies on the statutory asset transfer scheme.
18. Local authority review
18.1. If your asset transfer request was made to a local authority, the community transfer body can apply for an internal review by the authority, as set out in section 86 of the Act. Procedures for such reviews are set out in the Asset Transfer Request (Review Procedure) (Scotland) Regulations 2016 (excluding Part 4 of the Regulations, which applies to reviews by the Scottish Ministers). The procedures may seem complicated, but they are intended to make sure that everyone involved with the review has a chance to see and comment on all the information submitted at each stage.
18.2. Section 89 of the Act allows Ministers to designate additional relevant authorities to which this route of review will apply. This could be the case, for example, if ALEOs are designated as relevant authorities in future. The acknowledgement of your request, and the decision notice, will tell you who you can apply to for review.
18.3. A local authority review of an asset transfer decision must be carried out by Councillors, it cannot be delegated to officers.
Application for review
18.4. Your application for review must be made in writing to the local authority within 20 working days beginning with the date of the decision notice, or if no decision has been made, within 20 working days beginning with the date of the deadline for the decision (6 months from the validation date, as given in the acknowledgement of the request).
18.5. The application must include the name and contact address of your community transfer body, and specify the land to which the asset transfer request relates. It must also include a statement setting out your reasons for requiring a review. This should normally be based on the information provided in connection with your request and the reasons given by the local authority for their decision, for example if you feel they have not given enough weight to certain benefits, or there may be ways around certain restrictions. If you are seeking a review on the basis of the terms and conditions in the decision notice, you should be clear which particular items you would want to change, and why.
18.6. Your statement of reasons must cover all matters which your community transfer body intends to raise in the review. You may only bring forward further matters or evidence in response to representations on the application, or if the local authority request it.
18.7. You can also state by what procedure the community transfer body considers the review should be conducted. This is an opportunity to say whether you think the review can be decided on the basis of written submissions or if there should be a hearing session or another procedure, such as a site visit. This is a proposal, in the end it is up to the local authority to decide what procedure to use.
18.8. The application must be accompanied by a list of documents and other evidence supporting the case, and you must provide copies of any of those documents or evidence the local authority does not already have (for example because they were provided as part of the request, or they are local authority documents such as policy statements). The local authority will publish all these documents on their website. Any personal information will be removed before publication.
18.9. The local authority will send you an acknowledgement of the application for review within 10 working days of receiving it. The acknowledgement will state the date on which the application was made, and tell you how the review documents can be inspected.
Notification of interested parties
18.10. The local authority will also give notice of the review to anyone who made representations on the original asset transfer request. These people are described as "interested parties". Their original representations will be considered by the local authority when determining the review. The notice will advise them how and by what date any further representations can be made, and how documents relating to the review can be inspected.
18.11. If the requirements for notification and publication of the original asset transfer request were not fully met at the time, the local authority must complete this before determining the review.
18.12. Interested parties may make representations to the local authority within 10 working days of the date of the notice. After this they may not bring forward any further matters or evidence unless the local authority requests it.
18.13. The local authority will send a copy of any representations received in relation to the review to the community transfer body, and inform you how and by what date you may make comments to the local authority. This must be at least 10 working days from the date of sending the copy.
18.14. The local authority may require the community transfer body or anyone else who has submitted any documents or other material in connection with the review to provide additional copies to the local authority or to any other person.
18.15. Once they have the initial evidence, any representations from interested parties and comments on those representations, the local authority may consider they have enough information to determine the appeal. If not, they may decide what further procedure to use to get more information. This could be by written submissions, a hearing session, or other procedures such as a visit to the land to which the asset transfer request relates or to another relevant site (for example the community transfer body's existing premises or another similar community project). Anyone may be asked to provide further information by written submissions, or by attending a hearing session, including people not previously involved in the case.
18.16. If further written submissions are required, the local authority must send a notice to the community transfer body and any other person they want information from. The notice must set out the matters on which further representations are required, and the date by which they are to be sent to the local authority. It must also give the name and address of each person the notice is sent to. Any information provided to the local authority in response to the notice must be copied to everyone else the notice was sent to. Those other people then have 10 working days to send any comments to the relevant authority, again copied to everyone else.
Hearing session rules
18.17. The rules for arranging and conducting a hearing session are set out in the Schedule to the Regulations.
18.18. If the local authority decides they should hold a hearing session to get more information on particular matters, they must send a notice to the community transfer body, any interested parties, and any other person they want to provide further information. The notice must set out the matters to be considered at the hearing session. Apart from the community transfer body, the people invited must confirm within 10 working days if they plan to attend the hearing session. The community transfer body is automatically entitled to appear at the hearing session. The local authority must inform you of the date, time and place when the session will be held, giving as much notice as they consider reasonable in the circumstances. This also applies if the date, time or place of the hearing session is changed.
18.19. If they wish, the local authority may ask people who plan to attend the hearing session to submit a written statement of the case they plan to make, in relation to the matters specified to be considered at the hearing. They must send a notice requesting this, specifying the date by which hearing statements must be submitted. As with the application for review, the hearing statement must be accompanied by a list of documents you intend to rely on, and a copy of any of those documents which has not already been submitted and published in connection with the review. The statement must also list any other person who will be asked to speak on the case, setting out the matters which those people are to address and their qualifications for doing so.
18.20. The notice requesting a hearing statement may also require you to copy it to other people who are entitled to appear at the hearing. All hearing statements from other people must be copied to the community transfer body. The local authority must also publish them online. The local authority may request further information about matters contained in a hearing statement; that further information must also be copied to anyone else the hearing statement was sent to.
18.21. The hearing session is intended to be a discussion, led by the local authority, on the particular matters set out in the notice of the session. The people attending will not normally be allowed to question each other on their statements, and the local authority will be able to stop anything being raised if they consider it is not relevant or is repeating previous points. Anyone who is entitled to appear at the hearing session may be represented by someone else, if they wish. Apart from the points set out in the Hearing Session Rules, the local authority can determine how the hearing is conducted.
18.22. If the local authority proposes to take into consideration any new evidence that was not obtained through the process for written representations or hearing sessions, they must not reach a decision on the review without giving the community transfer body and other "relevant parties" an opportunity to comment on that evidence. "Relevant parties" are anyone who was entitled to appear at a hearing session, if the evidence relates to matters considered at the hearing session, or anyone who was sent a notice requesting further information in writing, if the evidence relates to matters covered by that notice.
18.23. Section 86(8) of the Act states that section 82, subsections (3) to (5) apply to a review as they apply to an original asset transfer request. This means that, in carrying out a review, the local authority must consider the request in the same way as the original process, taking into account the same factors and benefits of the request and alternative proposals.
18.24. Having carried out the review, the local authority may confirm the original decision, modify it or any part of it (including the terms and conditions set out in the decision notice) or substitute a different decision. They must issue a new decision notice, which replaces the previous decision notice. The decision notice must be given within 6 months of the date the application for review was made, or a longer period if agreed with the community transfer body. If the request is agreed following the review, the process continues as set out in chapter 16. If it is refused (or no decision is made within the time limit, or the terms and conditions are not acceptable) the community transfer body can appeal to the Scottish Ministers - see chapter 20.
18.25. In addition to sending the decision notice to the community transfer body, the local authority must publish it online and inform every person who made written representations in relation to the review of the decision and where the notice can be inspected.
Email: Jean Waddie
Phone: 0300 244 4000 – Central Enquiry Unit
The Scottish Government
St Andrew's House
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