Community Empowerment (Scotland) Act 2015: asset transfer guidance for community transfer bodies
Guidance for community bodies on the statutory asset transfer scheme.
9. Procedure following receipt of an asset transfer request
9.1. When the relevant authority receives your request, they will check it contains all the required information, and that your organisation qualifies as a community transfer body (and is eligible to make a request for ownership, if appropriate).
9.2. If your organisation is not eligible to make the request you have submitted, technically it is not an asset transfer request and the relevant authority is not required to take any further action. As a matter of good practice, they should normally reply explaining why they consider you are not eligible.
9.3. If you are eligible but the request is not complete, the relevant authority is required to send you a notice saying what is missing. This only applies if you have made the request in writing and it contains a minimum of the community transfer body's name and contact address, and a statement that it is an asset transfer request under part 5 of the Act. The relevant authority will not start processing your request until you have provided all the required information, as set out in chapter 8.
9.4. Only outline information under each heading is required for a request to be accepted for processing, but you should be aware that this may not necessarily be enough for the relevant authority to base its decision on. They may ask for more information at a later stage.
Power to decline repeat requests
9.5. Section 93 of the Act allows a relevant authority to choose not to consider a request which is the same or very similar to a previous request which was refused. This applies if the new request relates to the same land or building, and seeks the same type of transfer, as a request made in the previous two years, which was refused. It does not matter if the new request is made by the same body or a different one. For example, if one community transfer body requests to lease a particular building, and is refused, and another body requests to lease the same building for very similar purposes within two years, the relevant authority may decline to consider that second request. On the other hand, if the second request was for transfer of ownership instead of a lease, the relevant authority would have to consider it. Declining to consider a request under these circumstances does not count as a refusal of the request and therefore is not eligible for appeal or review.
9.6. This is intended to help relevant authorities deal with repeated requests which are unlikely to have a different outcome. They can still choose to consider a repeated request if they wish. If the community transfer body has worked to improve its proposal, or other circumstances have changed, or the new request is from a different organisation, it may well be appropriate for the relevant authority to consider it. If you have had a request refused and want to submit a new request within two years, it is particularly important to discuss it with the relevant authority first.
9.7. Where a repeat request is declined, the relevant authority should write to the community transfer body to advise you of the situation and the reason for declining the request.
9.8. Once the relevant authority is satisfied that all the required information has been provided, they will send you an acknowledgement. This will include the following information:
- the validation date for your request - this is the date on which the last of the required information was received by the relevant authority (the date the request was received if it was complete). This is the date from which other time limits will be calculated.
- the time period for the relevant authority to notify you of its decision - this is 6 months from the validation date.
- information about the right to appeal to the Scottish Ministers or request a review, as appropriate. This is required at the outset because of the option to appeal if no decision is made within the time limit - see chapter 17.
- whether another asset transfer request has already been made to the relevant authority in respect of the same land (or part of the same land).
- whether the relevant authority considers that it is now prohibited from disposing of the land to any other person (see below).
Publication, notification and representations
9.9. The relevant authority must make copies of your asset transfer request and any documents or information accompanying it available to be viewed online, until the request process is completed. Any representations made about the request must also be put online. Any personal information will be deleted or blacked out before the documents are published.
9.10. The relevant authority must also make other people aware that an asset transfer request has been made, and of how they can make representations about it. This must be done as soon as practicable after the validation date (the date the completed request was received). They must:
- notify any tenant occupier of the land the request relates to. This would include any group which has an agreement for regular use of the land or building.
- notify the owner, if the relevant authority leases the land
- publish a notice online
- put up a notice near the land.
9.11. A notice must "be displayed at a public place in the vicinity of the land to which the asset transfer request relates". The relevant authority may ask the community transfer body to do this for them if necessary, to save staff having to travel to the site. They will tell you or discuss with you where it should be placed.
9.12. If the request relates to a building or area of land in a settlement, the notice should normally be placed on the building or land, or on an object close to it. However, it is more important that the notice is put up where interested people will see it than that it is on or adjacent to the land in question. It could be displayed in a village shop, on a community noticeboard or an information point in a car park - wherever local events and notices are normally advertised.
9.13. You will probably let people know that the community transfer body has submitted the request, as part of your usual activities to keep people informed... However, it is the responsibility of the relevant authority to formally give notice that a request has been received and to invite representations.
9.14. The notices will explain how the asset transfer request and associated documents can be inspected, and how people can make representations about the request. They must have at least 20 working days to make representations after the notice is given or published.
9.15. If any representations are received in response to these notices, the relevant authority must send copies to the community transfer body and inform you how and by what date you can make comments about them. The date must be at least 20 working days from the date on which the copy is sent.
Prohibition on disposal of land
9.16. Once an asset transfer request has been made, the relevant authority is not normally allowed to sell, lease or otherwise dispose of the land it relates to, to anyone other than the community transfer body that made the request, until the whole process is completed. This is set out in section 84 of the Act. In these circumstances, any contract requiring the relevant authority to dispose of the property to any other person has no effect.
9.17. In summary, the request process is completed when:
- a contract for the transfer is concluded
- the request is refused and the community transfer body has followed all routes of appeal without success, or
- the community transfer body fails to take the next action in the process within the time required. For example, if you do not make an offer, or do not request a review or appeal if the request is refused.
9.18. The prohibition on disposal does not apply if, before the asset transfer request is made, the land has already been advertised for sale or lease, or the relevant authority has entered into negotiations or begun proceedings to transfer or lease the land to another person. In these cases, an asset transfer request can still be made, but it will not prevent negotiations or proceedings continuing with, or bids being made by, any other person. Making an asset transfer is not considered to be "entering negotiations" or "beginning proceedings" in this context.
9.19. There is no specific definition of "entering into negotiations", but the relevant authority should be able to show evidence of discussions that go further than a preliminary enquiry.
9.20. The relevant authority has to tell you when they acknowledge your request if they consider they are prohibited from disposing of the land, under section 84. They should keep you informed of the progress of the advertisement or negotiations, so that you know how it might affect your request - for example, how many bids have been received, or whether they have agreed to sell the property. Your asset transfer request must still be processed according to the legislation, but the relevant authority's decision would take into account the other offer(s) or negotiations and whether these would restrict the authority's ability to agree to the request.
9.21. The Scottish Ministers can also make a direction to say that the prohibition does not apply. Ministers will require an explanation of why the prohibition should be lifted.
Email: Jean Waddie
Phone: 0300 244 4000 – Central Enquiry Unit
The Scottish Government
St Andrew's House
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