Publication - Consultation analysis

The right to buy land to further sustainable development: consultation analysis

Published: 7 Feb 2020

Analysis of responses to the consultation for legislation to bring into force part 5 of the Land Reform (Scotland) Act 2016.

41 page PDF

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41 page PDF

399.3 kB

Contents
The right to buy land to further sustainable development: consultation analysis
Regulations We Propose Not To Make At Present

41 page PDF

399.3 kB

Regulations We Propose Not To Make At Present

Question 23

Do you agree that there is no need, at present, to use the power under section 46(3)(a) to further define structures that are or may be treated as a home?

Option Total Percent of All
Yes 11 55.00%
No 2 10.0%
Partially 2 10.0%
Not Answered 5 25.00%
  • There were 15 responses to this question. Eleven responses were in agreement, 2 disagreed and 2 partially agreed.
  • The James Hutton Institute suggested that a focus on inclusivity is maintained, while recognising possible avoidance strategies.
  • Community land Scotland said they were sympathetic to arguments against restricting the definition of what constitutes a ‘home’ in the interests of promoting social diversity. However, they advocate that the Regulations be framed so as to ensure that structures on such land are genuinely being used as homes rather than as structures to circumvent the Part 5 provisions.
  • In the interests of social diversity, Highlands and Islands Enterprise agreed with the rationale of not restricting the definition of what a home could be. However, they noted that on page 20 of the consultation document there is reference to caravans as a home. They said that while it is true that a caravan can provide a home, this is a moveable structure rather than a heritable asset. They asked whether a caravan could be placed on land to circumvent the Part 5 provisions, and by way of example asked if this could apply to other non-permanent structures such as a timber framed chalet or a serviced ‘glamping pod’.
  • They also said that a further complication is that the caravan and the land on which it is located need not be owned by the same person. Thus, the landowner could have a homeowner (caravan owner) as a tenant; the tenancy relating to the land rather than the caravan/home. They suggested consideration could be given to whether it is advisable to state that only heritable assets could constitute a home with respect to Part 5.

Scottish Government Response

The Scottish Government’s view remains that set out in the consultation, which is that there is no need at present to use the regulations to further define structures that are or may be treated as a home.

Question 24

Do you agree that there is no need, at present, to use the power under section 48(1)(c) to specify any further types of tenancy, the tenant’s interest in which would be excluded from being eligible to be acquired under

Option Total Percent of All
Yes 10 50.0%
No 7 35.00%
Partially 0 0%
Not Answered 3 15.00%
  • There were 17 responses to this question. Ten responses supported the proposals, and 7 disagreed with it.
  • The NHS proposed the following types of tenancy to be ineligible: (i) care in the community accommodation; (ii) staff accommodation which is intrinsically linked to employment and ordinarily in close proximity to the employer's premises; (iii) land which is connected to the landowner exercising its statutory functions; and (iv) operational NHS facilities as required to exercise its statutory functions.
  • The Scottish Land and Estates said that the inclusion of tenant’s interests under a tied property should be included.

Scottish Government Response

The Scottish Government recognises concerns around various other types of tenancy being eligible for Part 5 right to buy. However it believes these, if they ever arise, are best addressed on a case by case basis at the time of a Part 5 application, where they would be considered against the sustainable development conditions in section 56 of the 2016 Act.

Question 25

Do you agree that the types of community body that may register as a Part 5 community body should be limited to the four types outlined above?

Option Total Percent of All
Yes 12 60.0%
No 1 5.00%
Partially 3 15.00%
Not Answered 4 20.0%
  • There were 16 responses to this question. Twelve responses were in agreement with the types of community body proposed, 1 response disagreed and 3 partially agreed.
  • The James Hutton Institute agreed but suggested an in-depth review to ensure this categorisation is not excluding others who could benefit from the Part 5 regulations.
  • Development Trusts Association Scotland said that, as they had already noted, they would like to see provisions that ensure certain communities aren’t excluded from legislation, in particular gypsy traveller communities and communities with a large number of migrant workers.
  • Community Land Scotland agreed with the types of community body listed in the consultation document. However, they said there is merit in widening the provisions applying to a third party purchaser. They said that currently such a body must represent a geographic community of place, be community-led and community controlled. In their view, these stipulations are excessively restrictive and prevent the possibility of non-community controlled organisations from acting as third party purchasers on behalf of communities. As such, they advocated re-consideration of provisions relating to third party purchasers so as to remove that anomaly.
  • Highlands and Islands Enterprise agreed with the types of body listed. However, they also considered the provisions for a third party purchaser to be very restrictive as this body also has to represent a geographic community and be community-led and community controlled. They said it may be beneficial to enable non-community controlled organisations such as a housing association or other social or community enterprises, for example The Highlands Small Community Housing Trust, to be a third party purchaser.
  • The Community Woodlands Association agreed with the proposed types of body that may register for Part 5, but said it was not clear if community bodies must explicitly mention Part 5 in their constitution.
  • The Centre for Scots Law at the University of Aberdeen saw no compelling need to diverge from the existing right to buy frameworks, subject to the inevitable divergence that comes from the ability to nominate a third party body.

Scottish Government Response

Having considered the consultation responses to this question, the Scottish Government believes the best approach is to limit the types of community body to those mentioned in the consultation. These diverge from the Part 3A community bodies mainly by the ability of a community body to nominate a third party body to seek to acquire the land and tenant’s interests as the case may be.

Question 26

Do you agree there is no present need to use the regulation making powers in section 49(8), which would allow modification of certain matters relating to the three types of community body that may make a Part 5 right to buy application?

Option Total Percent of All
Yes 10 50.0%
No 4 20.0%
Partially 2 10.0%
Not Answered 4 20.0%
  • There were 16 responses to this question. 10 agreed there was no need to use the powers in section 49(8), 4 disagreed and 2 partially agreed.
  • The James Hutton Institute said that they believe a modification is required, otherwise allowance is not made for community bodies with fewer than 10 members. They said this was a likely scenario across many small rural communities.
  • Development Trusts Association Scotland questioned the need for a community body’s constitution to state that they can use Part 5, as it should be sufficient for a community body to have a general power to acquire property. They said this was particularly so given that this is not required if the body is nominating a third party, and it is not clear why organisations not nominating a third party should be subject to more stringent criteria than those who are.

Scottish Government Response

The Scottish Government has considered the responses to this question and has no plans to use the regulation making powers in section 49(8). Subsection 49(6) of the 2016 Act makes clear that Scottish Ministers may, if they think it in the public interest to do so, disapply the requirement for there to be at least 10 members in the community body.

Question 27

Do you agree there is no need, at present, to use the power under subsection 52(7)?

Option Total Percent of All
Yes 14 70.0%
No 1 5.00%
Partially 0 0%
Not Answered 5 25.00%
  • There were 15 responses to this question, with 14 responses in agreement and 1 in disagreement.
  • The only substantive comment was by the James Hutton Institute, which suggested the Scottish Government keep this provision under review.

Scottish Government Response

The Scottish Government will proceed as planned and not make use of subsection 52(7) of the 2016 Act.

Question 28

Regulations made under subsection 52(10)(b) are already in force but please feel free to give any views you have on access to the Register of Applications by Community Bodies to Buy Land.

  • The James Hutton Institute said that access to the register should be made free for all users, especially community groups where the cost-burden may be unsustainable or exclusionary (e.g. where the community group must register an interest in a fragmented landholding with multiple parcels).
  • The Scottish Property Federation said that their members are of the view that this question is premature as there have been no entries made to the Register of Applications by Communities to Buy Land.
  • Pinsent Masons LLP said that there have been no entries made in RoACB yet so they have not experienced issues on access to the register.

Question 29

Please use this space to tell the Scottish Government about anything else you believe is relevant to this consultation.

9 respondees, made up of 6 organisations and 3 individuals, took this opportunity to make further comment. These are best read in their own words by looking at the responses on the Scottish Government’s website. Organisations which responded to this question are:

  • The NHS
  • James Hutton Institute
  • Scottish Property Federation
  • Pinsent Masons LLP
  • Community Land Scotland
  • Community Woodlands Association

In addition some individuals made responses to this question, and they were:

  • Philip Graves
  • Adam Pellant
  • Response 766214085 – name withheld

Contact

Email: LandReform@gov.scot