Community Empowerment (Scotland) Act 2015: asset transfer guidance for community transfer bodies
Guidance for community bodies on the statutory asset transfer scheme.
21. Appeals where no contract is concluded
21.1. Once an asset transfer request has been agreed, if you reach the end of the period allowed to conclude a contract without agreement, the community transfer body can appeal to the Scottish Ministers under section 83(6) of the Act. Procedures for such appeals are set out in the Asset Transfer Request (Appeal Where No Contract Concluded) (Scotland) Regulations 2016. You cannot appeal in these circumstances if the original request was made to the Scottish Ministers.
21.2. Chapter 16 explains the timescale allowed for concluding a contract. These Regulations also cover the procedure for applying for a direction to extend the period.
21.3. Unlike appeals and reviews over the decision whether or not to agree to the asset transfer request, appeals where no contract has been concluded do not allow for any publication of documents or representations from people other than the community transfer body and the relevant authority. This is because the negotiation of a contract is likely to be complex and involve discussion of sensitive or commercially confidential issues.
21.4. The Scottish Ministers must appoint a panel of 3 people to consider the appeal and report back to Ministers on their findings and recommendations. The panel will be appointed from a pool of people with appropriate experience in relation to community asset transfer and property contracts; no more than one of them may be a civil servant.
Notice of appeal and relevant authority response
21.5. You must send a notice of appeal in writing to the Scottish Ministers within 10 working days beginning with the date of end of the period for concluding a contract.
21.6. The notice of appeal 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 why you are appealing and the matters which you consider should be taken into account in determining the appeal. This is likely to outline how negotiations have progressed so far and why it has not been possible to conclude a contract. You must also provide a statement of the terms and conditions on which the community transfer body considers the land should be transferred, and how this differs from the terms and conditions set out in the decision notice.
21.7. Along with the appeal you must send copies of the original decision notice, the community transfer body's offer to the relevant authority, and all correspondence between the community transfer body and the relevant authority in relation to the negotiation of the contract.
21.8. Your notice of appeal must cover all matters which your community transfer body intends to raise in the appeal, and be accompanied by all documents or other evidence you intend to refer to. You may only bring forward further matters or evidence in response to the relevant authority's response, or if the review panel request it.
21.9. You can also state by what procedure the community transfer body considers the appeal should be conducted. This is an opportunity to say whether you think the appeal 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. The final decision on what procedure to use will be up to the review panel.
21.10. At the same time as sending the notice of appeal to the Scottish Ministers, you must send a copy to the relevant authority. This must be accompanied by a list of all the documents and evidence sent to the Scottish Ministers, and copies of anything the relevant authority does not already have.
21.11. The relevant authority will have 15 working days to send its response to the Scottish Ministers. This must set out the matters it considers should be taken into account in the appeal, the procedure it considers should be used, and the terms and conditions on which it considers the land should be transferred. The relevant authority will not be allowed to bring forward any further issues or evidence after submitting its response, unless the review panel request it.
21.12. The community transfer body will have 15 working days to send the Scottish Ministers any comments on the relevant authority's response, including its proposed terms and conditions for the contract.
21.13. The Scottish Ministers may require the community transfer body or anyone else who has submitted any documents or other material in connection with the appeal to provide additional copies to the Scottish Ministers or to any other person.
21.14. The review panel may consider they have enough information in the notice of appeal, the relevant authority's response and the community transfer body's comments to determine the appeal. If not, they will 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). The review panel may ask other people to provide further information on the case. This allows them to include experts on particular issues or people who may be affected by the transfer.
21.15. If further written submissions are required, the panel will send a notice to the community transfer body, the relevant authority, 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 panel. It must also give the name and address of each person the notice is sent to. Any information provided to the panel 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 panel, again copied to everyone else.
Hearing session rules
21.16. The rules for arranging and conducting a hearing session are set out in the Schedule to the Regulations.
21.17. If the panel decide they should hold a hearing session to get more information on particular matters, they must send a notice to the community transfer body, the relevant authority, 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 and the relevant authority, who are automatically entitled to appear, the people invited must confirm within 10 working days if they plan to attend the hearing session. The panel 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.
21.18. If they wish, the panel 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 those statements must be submitted. As with the notice of appeal, 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 appeal. You may ask other people to speak on your case, such as experts on particular issues or people who will be affected by the asset transfer. Your statement must list anyone you want to speak on your case, setting out the matters which they are to address and their qualifications for doing so.
21.19. 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 and the relevant authority. The panel 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.
21.20. The hearing session is intended to be a discussion, led by the panel, 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 panel 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. One representative may speak for a group of people who have similar interests in the case.
21.21. If the Scottish Ministers propose 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 appeal without giving the community transfer body and the relevant authority an opportunity to comment on that evidence.
21.22. Having carried out the appeal, the Scottish Ministers may allow the appeal (agree with the community transfer body's case), or dismiss (reject) it. If they allow it, they must issue a notice to the community transfer body and the relevant authority setting out details of the terms and conditions of an offer which the community transfer body may make to the relevant authority in relation to the asset transfer request, and the date by which any such offer is to be made. In effect, the Scottish Ministers will write the contract which they expect the parties to agree.
21.23. If the appeal is dismissed, the asset transfer request process comes to an end and the relevant authority is free to keep or sell the property as it wishes.
21.24. If the appeal is allowed, the community transfer body is not required to make an offer based on the Scottish Minister's notice. You may decide not to proceed, or you might agree a contract with the relevant authority on different terms. However, if you do not make an offer in the terms of the notice within the specified period, the asset transfer request process comes to an end and you have no further rights under the legislation in relation to that request.
Offer and conclusion
21.25. If you want to proceed, the community transfer body must, within the period specified in the appeal decision notice, submit an offer to the relevant authority containing "all and only" the terms and conditions set out in the appeal decision notice.
21.26. The relevant authority must conclude a contract with the community transfer body, on the basis of that offer, within 20 working days of the offer being submitted. If they do not, the community transfer body can apply to the Scottish Ministers for a direction under section 90(5) of the Act, requiring the relevant authority to conclude the contract.
21.27. An application for a direction under section 90(5) must be sent to the Scottish Ministers within 20 working days beginning with the date of the deadline for the contract to be concluded (which is 28 days after the offer is made). The application must include the name and contact address of the community transfer body and the relevant authority, and the land to which the asset transfer request relates. You must include a statement of the steps taken by the community transfer body and the relevant authority to conclude a contract, the reasons why you think a direction should be given, and the period within which the relevant authority should be required to conclude the contract. You must attach copies of the appeal decision notice and your subsequent offer.
21.28. At the same time as making the application to the Scottish Ministers you must send a copy to the relevant authority. They will have 10 working days to send comments to the Scottish Ministers.
21.29. If the Scottish Ministers approve the application, they will give a direction to the relevant authority (copied to the community transfer body) requiring them to conclude a contract within a specified time. If they do not, they will automatically be deemed to have accepted the offer and concluded the contract with the community transfer body, and the transfer will go ahead (unless, in the meantime, the parties have concluded a contract on other terms or the community transfer body has withdrawn its offer).
21.30. If the contract is not concluded within the original 28 days and you do not apply for a direction under section 90(5), or the application is refused, the asset transfer process comes to an end.
Email: Jean Waddie
Phone: 0300 244 4000 – Central Enquiry Unit
The Scottish Government
St Andrew's House
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