Community Rights to Buy: consultation analysis

3.4 Late applications

Q6: What level of community support should be required for a late application to be accepted? The legislation requires it to be “significantly greater” than the 10% required for a timeous application. In practice, this has been taken to be 15%.

This question did not contain any voting options, instead invited respondents to share their views in a free text box.

There was a total of 46 standard responses to this question.

Summary

The consensus was that the current level of support is sufficient, although some did question why it was required to be different to that for a timeous application.

Themes

The most common response to this question was to support the current proposition i.e. 15% community support is required in order for a late application to be accepted. Around 21 responses contained some degree of support for this.

“A higher level of support than for standard applications is reasonable, given the timing and potential impact on existing sale plans.” (National Sheep Association)

“Arguably, a late application has a greater impact on the property market and could delay a sale which may have consequences for the owner.” (Highlands and Islands Enterprise)

A number of respondents – around 13 – expressed some degree of support for aligning the figure more closely with the requirements for a timeous application i.e. 10%.

“Late applications should be determined on the merits of the case and should never be rejected simply because some higher requirement for community support has not been met.” (Individual respondent)

“By its nature a 'late application' suggests the community have not had much notice of a potential sale of a community asset. So asking for a higher number seems too onerous.” (Individual respondent)

Some respondents felt that a higher figure should be considered with suggestions ranging from 20% to 50% across 6 responses. Reducing the figure to 5% was also suggested.

“I don't consider 15% to be significantly greater than 10% and would expect it to be at least 30% to justify putting a dead stop to the owners ability to continue with the sale process.” (Individual respondent)

Q7: Should late applications only be accepted from community groups that can demonstrate that they are compliant with the Right to Buy provisions, prior to the owner taking steps to transfer (and should we define what is considered to be a step to transfer)?

This question firstly invited respondents to choose from Yes/No/Unsure. The accompanying free text box also invited additional comments.

There was a total of 47 standard responses to this question with 46 respondents selecting a voting option and 27 providing additional comments in the free text box.

Regarding the voting options, the breakdown was as follows:

Summary

The majority of respondents supported the requirement that only compliant groups may submit late applications as that shows that groups are organised and capable, especially when considering that an ongoing transaction is affected by a late application.

Concerns amongst those who opposed focussed on a lack of knowledge that a sale would happen as being a hinderance to groups, a lack of clarity as to what a “step to transfer” means, and the overall difficulties community groups face in organising quickly in the context of a late application.

Themes

Across the spectrum of responses there was strong support for a clearer definition of the ‘steps to transfer’.

“…But if there are reasons already being compliant has to be included there needs to be transparency about what this means through clear guidance.” (Community Land Scotland)

“It would be helpful to define what is considered a step to transfer, making the process clearer for communities and landowners. It is important that the threshold for this is not set too low as it could prevent successful registrations.” (Scottish Land Commission)

Amongst those who supported the main proposition in the question, there were additional comments that being able to demonstrate compliance shows that the group is organised, and the appropriate amount of consideration and preparation had been undertaken. The importance of a group communicating an interest was noted.

“Yes, late applications should only be accepted from community groups that have already met the Right to Buy requirements before the owner starts the process of selling. This helps ensure that only well-prepared and genuinely local groups can apply” (National Sheep Association)

Respondents who opposed the main proposition made a wide range of comments in support of their position. These included:

• Groups should at least have started the process or be able to show that they are on the way to doing so. This is to take into account situations where the community had no way of expecting an asset would be made available for sale, for example. Allowing time to achieve compliance is therefore important.
• Concern that, as community groups are in most cases volunteer-led, they often struggle to plan ahead and take the necessary steps to be compliant when there is no expectation that an asset is going to come onto the market.
• Some respondents felt that compliance should only be checked at the point of application, allowing groups more time to organise after an asset has come onto the market.
• Whether it would be possible for an existing organisation (such as a community council or community association) to carry out the initial work required on the basis that a new community group is being created to complete the remainder of the process.

“Late applications should be considered from groups that are not yet compliant with the RTB provisions, provided they can demonstrate they are on the way to achieving that status. There are times when the community has to move fast and this should not be a barrier.” (Individual respondent)

“It should accommodate community groups who are in the process of making changes in order to be compliant” (Scottish Community Development Centre)

Amongst those unsure there was a mixture of the above points such as the importance of groups showing some degree of prior activity and a need to define the steps to transfer but also that more support to community groups could help them meet compliance requirements quickly and confidently.

Q8: Should late applications still require a community group to demonstrate that they had taken steps towards acquiring the land before the owner has taken steps to dispose of it? Further details will be developed on what those steps should be as part of the review.

This question firstly invited respondents to choose from Yes/No/Unsure. The accompanying free text box also invited additional comments.

There was a total of 47 standard responses to this question with 46 respondents selecting a voting option and 29 providing additional comments in the free text box.

Regarding the voting options, the breakdown was as follows:

Summary

A slight majority felt that steps to purchase should not be required. Mixed responses citing demonstration of intent, lack of knowledge of purchase, relationships with owners were received from various sides of the argument.

Themes

Amongst those opposing the requirement for a community group to demonstrate that they had taken steps towards acquiring the land before the owner has taken steps to dispose of it the following were recurring themes:

• The most common reason given by those who selected “no” was that groups may not know of the disposal It was likewise commented that late applications should not be penalised, and that the realities of land ownership and the practicalities of the property market need to be factored in.
• The value of requiring demonstration was questioned.
• It is more important to be able to demonstrate other benefits such as the public interest or the long-term benefits to the community of an asset being sold to them.
• A concern that pre-empting a sale could jeopardise the relationship with the owner and so have a detrimental impact on the right to buy process.

“Communities commonly don't organise until a threat is perceived – by which time it's often too late.” (Community Council of the Royal Burgh of Peebles & District)

“Many community groups, particularly those from, or based in, disadvantaged and marginalised communities, will find it more difficult to demonstrate this, since they are less likely to have taken proactive steps to acquiring land due to limited capacity and resources. It is often the threat of the sale of land that creates a catalyst for community activism around the issue of land ownership.” (Scottish Community Development Centre)

“…the CRtB process is often perceived as an “aggressive” or adversarial move, which discourages groups from initiating it unless absolutely necessary. This dynamic can deter communities from taking formal steps toward acquisition early on, even when they are otherwise well-prepared and committed.” (Community Enterprise organisation)

Among those supporting the requirement for a group to demonstrate it has taken prior steps the following were recurring themes:

• The steps required should be clear and well defined.
• The importance of proper planning and fair engagement, and the need to avoid opportunism. Otherwise, there could be negative consequences in the long term.

“Yes, it is reasonable to ask community groups to show they were already interested and had started preparing before the owner began the sale process. This helps ensure that late applications are genuine and not just a reaction to a sale. However, the steps required should be clear, fair, and not too difficult for small or rural groups” (National Sheep Association)

Those unsure tended to cite a reflective mixture of the above comments but the following comments were also made:

• Demonstration of prior steps could be around the type of asset e.g. a community group concerned with growing could express the more general intent to acquire land for growing as opposed to the intent to acquire a specific piece of land.
• A relaxed and flexible interpretation of what constitutes engagement, particularly when that isn’t tied to a community right to buy application. This allows groups to test the water without damaging good relationships by, for example, creating the perception that they are moving too soon to legal mechanisms.

Q9: Should it be a requirement of a late application that a detailed business plan for the asset be included, and should we define how much detail is required?

This question firstly invited respondents to choose from Yes/No/Unsure. The accompanying free text box also invited additional comments.

There was a total of 47 standard responses to this question with 45 respondents selecting a voting option and 32 providing additional comments in the free text box.

Regarding the voting options, the breakdown was as follows:

Summary

Whilst a majority of respondents did not think that a business plan should be required, several caveated that by suggesting either a period post-application during which a group would be required to develop one, or for the plan to be a fairly high level one when submitted with the application.

Those who agreed that a plan should be part of the application generally saw it as an indication of the seriousness and capabilities of the group.

Themes

Amongst respondents answering either “yes” or “no” there was a common suggestion that the requirement for a business plan should be high level in the context of a late application. Some respondents made a simple comment to this effect whereas some others did add the further clarification that they thought a detailed business plan should follow in due course, possibly to a set timescale.

Amongst those more definitely in favour of requiring a detailed business plan as part of a late application the following comments were made:

• One should be required provided community groups are allowed sufficient time to develop one.
• A detailed business plan is important in terms of demonstrating intent and capacity to deliver but that the detail required should be reasonable and proportionate. For example, funding sources might not always be clear at the outset in this context.
• A business plan will assist petition signatories in understanding the implications of the proposed purchase (and, potentially, withdrawing their support if the business plan does not match their expectations).
• It is important for groups to be able to demonstrate that their proposals are sustainable and that they are competent as a group.
• The plan should include details of the material differences to the way the land is used and managed by the current owner.

“If the community cannot produce a business plan to support their application, then they certainly will not be competent to own the land.” (Atholl Estates)

“This right should only be available to serious groups representing a community's collective views who have thought about what they need and have made the effort to come up with a detailed plan. That plan should be materially different to the way the land is used and managed by the current owner.” (Individual respondent)

“You should define requirements, but I would hope those requirements are relatively light. This will actually help communities be realistic.” (Community Council of the Royal Burgh of Peebles & District)

Amongst those more definitively against requiring a detailed business plan as part of a late application the following comments were made:

• Not enough time which places a general burden on groups, especially volunteer-led groups, particularly if information is needed from the landowner, for example, that there is not enough time to allow the group to obtain.
• This requirement could impact groups differently as some may be able to call on professional expertise to help them whereas others may not. This could disproportionately impact less affluent communities.
• A suggestion to explore whether other plans and documents could be taken into account instead. For example, existing plans for other projects, community development plans, or place plans. Similarly, processes from elsewhere could be brought over to community right to buy such as the submission of a skeleton Asset Transfer Request at an early stage followed by more detail in due course as seen under Community Asset Transfer. Support and funding should be considered for this.
• The public interest and sustainable development aspects should instead be the focus with a detailed business plan being an option but that its absence should not by itself mean rejection.
• When requiring information and plans from groups it should be taken into account that they may not want the land use to change e.g. they may prefer to keep a field unchanged to allow for walking, nature and wildlife.

“In most cases, there simply won’t be enough time to produce one, especially if the land has come onto the market unexpectedly or in a moment of crisis” (Community Enterprise organisation)

“It is unrealistic to get a community to provide a detailed business plan which requires funding and time when pursuing a late application.” (Community Land Scotland)

“This will be dependent on the amount of notice received by the community group concerned. It is unreasonable to expect detailed business plans in very short periods of time.” (Individual respondent)

Finally, it was also commented that any changes here should allow for the amount of notice received by the community group. If this notice period is short, then a detailed business plan would be unreasonable.

“An outline rather than the full business plan should be sufficient. This should contain enough detail to allow acceptance that the proposals are realistic, the full business plan should follow within a timescale agreed with the community. Smaller projects will need less time to produce a business plan than some large ones.” (Individual respondent)

Q10: If a late application is approved, should the owner be prohibited from removing the asset from sale (given that they were already in the process of selling it)?

This question firstly invited respondents to choose from Yes/No/Unsure. The accompanying free text box also invited additional comments.

There was a total of 47 standard responses to this question with 46 respondents selecting a voting option and 25 providing additional comments in the free text box.

Regarding the voting options, the breakdown was as follows:

Summary

A slight majority of respondents were in favour of prohibiting the owner from removing the subject of a late application from sale. The main reason was that the community had been asked to go through a lot of work, only for it to be wasted by the removal of the asset from sale.

The main reason amongst those opposing the prohibition was that they felt that it, effectively, turned the late application into a compulsory right to buy.

Themes

Amongst those supporting a prohibition on removing an asset from sale if a late application is approved, the following comments were made:

• Concerns that owners removing an asset from sale in this context has the potential to frustrate the community right to buy process and result in wasted effort on behalf of the community body.
• It’s important to support community groups and this will help protect the group’s position.

“Otherwise, all that work is for nothing.” (Individual respondent)

“Landowners should not be allowed to remove assets from sale to frustrate late applications which are a legally robust and thorough process.” (Community Land Scotland)

“This would ensure that community groups don't end up doing a lot of work only for the asset to be pulled from under them.” (Go Girvan: Community Led Tourism)

Amongst those opposing a prohibition on the sale of an asset if a late application is approved, the following comments were made:

• Concerns that this would change the nature of this particular aspect of community right to buy as it would become, in effect, a compulsory purchase that the owner is locked into but not yet the community group.
• The importance of respecting the rights of owners to change their mind was noted, as was the importance of setting out clear rules if changes are made that give effect to such a prohibition e.g. a very short window of opportunity for community groups that balances community opportunity with respect for private property rights and the realities of rural land markets.
• Owners may have valid reasons for not selling to a community group. This could be connected to the potential of an asset that may not be realised if community right to buy is given effect e.g. housing developments.
• Concern that when the suggestion of community right to buy becomes real it could depress sale price of an asset. Any changes made should tread carefully to avoid this being an issue.

“An owner should always have the right to withdraw from a sale as their circumstances might change.” (Individual respondent)

“This would effectively turn the application into a compulsory one.” (Individual respondent)

“This proposal would represent a fundamental shift in the basis of Part 2, which is currently grounded in the principle of a willing seller.” (Highlands and Islands Enterprise)

Some respondents were less sure and made the following comments:

• Approach this on a case-by-case basis, taking into account the strength of the community group and the type of asset.
• Consider scope for the community group to agree to removal from sale. Their interest in the land would remain but the community groups may instead prefer to lease or manage the land or use the additional time to prepare for a purchase.