Community Empowerment (Scotland) Act 2015: asset transfer guidance for community transfer bodies
Guidance for community bodies on the statutory asset transfer scheme.
7. Finding suitable assets
7.1. In the past, asset transfer has usually only been available for land or buildings which a public authority has decided to dispose of, and has decided is suitable for community use. The Act puts more power in the hands of communities by allowing you to request whatever property you believe will be most suitable to deliver your objectives, showing how your proposals will provide benefits for the community.
7.2. You should start by thinking about what you want your project to achieve - for example, to help young people gain new skills through training, create greater community cohesion by providing a place for people to meet or hold events, or improve health and wellbeing by providing access to the natural environment.. Then you can consider whether you need an asset to deliver those aims, whether ownership or lease or other rights are suitable for you, and look for an appropriate property. This is highlighted in advice from the Community Ownership Support Service (www.dtascommunityownership.org.uk ). Community projects which focus on "saving" a building threatened with closure or demolition often run into difficulties later if they have not fully thought through what they will do with it and the costs involved.
7.3. When public authorities are changing the use of their buildings, or disposing of vacant property, they are encouraged to engage with local communities about their future use. Some relevant authorities may keep a register of organisations which are looking for property, so they can contact you if anything suitable becomes available or if they are considering the provision of new facilities.
Register of land
7.4. To help community bodies to know what might be available through asset transfer, section 94 of the Act requires each relevant authority to establish, maintain and make available a register of land which it owns or leases, "to the best of its knowledge and belief".
7.5. Public sector bodies should have asset management systems as part of their financial management duties. However, it is recognised that the ownership and boundaries of land are sometimes unclear, especially where records are old and land has changed hands by statutory powers or reorganisation of public bodies, so they are only required to publish the information they currently have. The Scottish Government has committed to improving the accuracy of information about land ownership, and is seeking to have all public sector land included on the Land Register by 2019. The process of undertaking voluntary registration will, over time, also improve the accuracy of information held by public bodies and published in their registers of land. However, the two processes are not formally linked.
7.6. The Act requires that the register must be maintained. Some registers may be updated automatically from the authority's internal systems. If not, they should be reviewed at least every three months, and the date of the last update should be shown on the register.
Land which need not be included in the register
7.7. The Act allows the Scottish Ministers to make regulations specifying types of land that relevant authorities need not include in their registers. Following public consultation and discussion with various relevant authorities, a number of types of land have been specified in the Community Empowerment (Registers of Land) (Scotland) Regulations 2016.
7.8. Please note that the register of land to be produced under section 94 does not determine what may be requested by a community transfer body. You may make an asset transfer request for any land owned or leased by a relevant authority, including land which is not included in the register.
7.9. The following types of land need not be included in relevant authorities' registers:
(a) Roads. Including all roads would make registers much larger for no purpose, as community bodies are unlikely to want to take over public roads. If you do, you should approach the local authority in most cases, or the body which owns the land the road (or footpath) runs through.
(b) Underground railways, together with stations, entrances and other land essential to the operation of the railway. This applies only to Strathclyde Partnership for Transport (SPT), in relation to the Glasgow Subway (Network Rail, as a UK body, is not a relevant authority). It would not be practically possible for a community transfer body to take over individual parts of the Subway, since it operates as a whole. You can contact SPT directly if you are interested in using land they own in or around Subway stations.
(c) Canals. Scottish Canals owns and operates the five main canals in Scotland. As with the Subway, it would not be possible for a community transfer body to take over a section of a canal, as the whole network operates together. Scottish Canals will need to list the other land and buildings it owns which are not directly connected with the operation of the canals.
(d) Bus stations. Bus stations may be operated by local authorities or Regional Transport Partnerships. They need not be included in registers of land, along with roads, railways and canals.
(e) Houses, hostels and lodging-houses. As with roads, including all houses would make registers much larger and more difficult to manage and search. There are also concerns about the privacy of tenants and security for accommodation for vulnerable people. Community bodies do not often want to take over houses that are occupied, and special arrangements would apply if you wanted to transfer social housing to a new landlord.
The exclusion for houses does not apply if they are surplus to the requirements of the relevant authority, which will usually mean they are empty and available for sale. In areas where there is a shortage of affordable housing, particularly in small rural communities, relevant authorities are encouraged to engage with any local community bodies before putting the house on the market.
Hostels and lodging-houses operated on a commercial basis, for example as tourist accommodation, should be on the register.
(f) Land used for the supply of drinking water and disposal of waste water, and certain reservoirs. The location of these facilities is not published in the interests of national security.
(g) Police radio masts and sites used for covert policing. The location of these facilities is not published in the interests of national security and the prevention and detection of crime.
(h) Souvenir plots. These are areas of land that are of "inconsiderable size and no practical utility" and have never been registered, as described in section 22 of the Land Registration (Scotland) Act 2012. An asset transfer request can still be made for such small areas - for example, some groups may be interested in them for community growing. The most likely owner to approach is the local authority, for road verges, or the owner of neighbouring property.
(i) Mineral rights owned or leased separately from the land to which they relate. Mineral rights are sometimes reserved to the previous owner when the land itself is sold. The ownership and exercise of such rights is likely to be complex and would need significant investigation if a community body was interested in them.
7.10. Some relevant authorities may include land of the types specified in the regulations in their registers, but they are not required to do so.
Information about each property
7.11. You can expect the register to include sufficient information to identify the property and its location. This will normally provide a grid reference, the street address and postcode if there is one, any name the land or building is known by and may have a "Unique Property Reference Number" (these enable properties to be matched in different data sets). There will also usually be a basic description of the current use such as "offices", "clinic", "depot", "park".
7.12. Where a relevant authority owns an area of land with several buildings on it, such as a hospital, college campus, business park or nature reserve, it is not required to identify all the individual buildings separately.
7.13. Some authorities may include additional information on their register of land such as the status of each property, its size and any known restrictions on their disposal or use, but others may only provide this in response to enquiries.
Publishing the register
7.14. There is no set format in which the register must be made available, although it must be online. It will depend on how the information is currently held by the relevant authority, the number of properties to be listed and how frequently changes are made. Some may be map-based, searchable online systems, others (where there are less than 100 properties) may just be a text-based document.
7.15. There are no plans at present to provide a single, central register for all relevant authorities, although some authorities in the same area or of similar types may choose to link their registers together. There are a number of projects already under way to improve public access to information about land, and these registers may in time be integrated with those systems. There will be an asset transfer page on the Scottish Government website, www.gov.scot, with links to all relevant authorities' pages.
7.16. In addition to making the register available online, arrangements must be made for members of the public to inspect it, free of charge, at reasonable times and at such places as the authority may determine. This does not mean that a paper version must be provided, as this would be impractical for map-based systems. It may mean, for example, that you can visit an office and someone will help you find the information you want on a computer there, or that information can be sent out based on a telephone request. Information must also be provided in alternative languages and formats, on request, to meet equality requirements. If you are not able to use the register online, you should contact the relevant authority and ask how you can access the information.
Enquiries about land
7.17. As mentioned above, an asset transfer request can be made for any land owned or leased by the relevant authority, even if it is not on the register. If you believe a piece of land or a building is owned or leased by a relevant authority, and it is not on their register, you should contact them and ask about it.
7.18. If the ownership of a particular property is not clear, it may take significant work and cost to investigate it. Relevant authorities should deal with such enquiries as a request under FOISA and the Environmental Information Regulations (EIRs), which set out the circumstances in which a fee may be charged for providing information, or information may be withheld. They may also advise you to contact Registers of Scotland to investigate the ownership. Guidance on your rights under FOISA and the EIRs is available on the Scottish Information Commissioner's website http://www.itspublicknowledge.info/home/ScottishInformationCommissioner.aspx .
Further information about land
7.19. Once you have identified one or more properties that may be suitable for your project, your community body will need further information about them. You will need to decide whether the land or building is suitable for your planned activities, what the running costs will be, and how much to offer for it. If you intend to request ownership or a lease with repairing responsibilities, you will need information about the structural condition of any building, other rights on the land, and so on.
7.20. You should make contact with the relevant authority as early as possible and there should be an open discussion about your objectives and property that may be suitable. The relevant authority should be open about the information it has, including practical knowledge about managing the property, and how other information might be obtained. Most importantly, they should ensure that the community transfer body is aware of any information that is likely to be a significant factor in the authority's decision on the request.
7.21. Although the Scottish Ministers may make regulations about information which a community body may request from a relevant authority about land for which they intend to make an asset transfer request, we have no plans to make such regulations at present. We consider that FOISA and the EIRs provide sufficient rights for community bodies to request any information they may require. The exemptions and exclusions provided by this legislation are equally appropriate in relation to asset transfer, for example the ability to withhold information on grounds of protecting personal data, commercial confidentiality or national security. These exemptions are also backed by a right to a review and appeal to the Information Commissioner if information is withheld without good reason. All staff who may be dealing with enquiries should be familiar with the requirements.
7.22. You should not expect that all relevant authorities will have current, detailed information to provide you with for all their properties. Some information is only reviewed every few years, or may not be broken down for individual buildings. Reports produced for the authority in relation to their use of the building may not be appropriate for your community transfer body to rely on, and professional surveys may be confidential to the client who commissioned them. Relevant authorities should seek to make as much information available to the community body as possible, but you should check that it is relevant to your situation and proposals.
7.23. Ultimately, as a community transfer body it is your responsibility to ensure you have all the necessary and relevant information to develop your proposals. Some funding bodies may provide support for work such as surveys to develop your proposals. As a way of supporting community bodies, relevant authorities may sometimes agree to share the cost of producing or commissioning new information, and help by providing information to surveyors, facilitating access to the site, and so on. Where the authority wants to dispose of the property or supports the community's proposals, it may provide a "sales pack" with a range of useful information and reports.
Email: Jean Waddie
Phone: 0300 244 4000 – Central Enquiry Unit
The Scottish Government
St Andrew's House
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