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
Requests From A Part 5 Community For Voluntary Transfer Of Land And Tenant's Interest

41 page PDF

399.3 kB

Requests From A Part 5 Community For Voluntary Transfer Of Land And Tenant’s Interest

Question 6

Do you agree with the proposals for a draft form at Annex A, for the Part 5 community body to send to the land owner seeking transfer of land?

Option Total Percent of All
Yes 10 50.0%
No 2 10.0%
Partially 7 35.00%
Not Answered 1 5.00%
  • There were 19 responses to this question, with 10 responses agreeing to the proposals, 2 disagreeing and 7 people partially agreeing.
  • The Law Society of Scotland said that the description of the land must be suitably detailed to ensure the extent of the land which the community body wishes to be transferred is clear. In most circumstances this should include a plan, produced in a manner similar to that required for Part 3A of the 2003 Act. This would particularly be the case where a community body seeks transfer of only a part of the land owner's property.
  • The Scottish Property Federation suggested the form should include a plan of the property if the community body does not intend to buy all of the owner’s land.
  • The NHS suggested that reference in the form to the community body providing proof that it is compliant should be more akin to the asset transfer request form, which specifically refers to the community body's constitution, articles of association or registered rules to be enclosed.
  • The NHS also suggested including a description of what the community wants to do with the land/tenant's interest where applicable, a description of the benefits of the transfer and more information in respect of a third party purchaser and their connection with the community body.
  • SLE consider the form could include a section on why the Community Body consider the current use unsustainable, and this might lead to conversations, dialogue and decisions which help resolve the issue.
  • Both Community Land Scotland and Highlands and Islands Enterprise suggested adding in the guidance notes that the form should be signed by an office bearer or authorised signatory of the community body and to add a field to capture the designation of the signatory in relation to the community body making the application.

Scottish Government Response

Having considered the points raised in response to this question, we agree the description of the land must be clear, and believe that the form we have drafted as part of the regulations is fit for that purpose. It includes a requirement for the community body to send a map to the land owner, on par with the requirement for the community body to provide such a map should they later make a formal Part 5 application to Scottish Ministers for transfer of the land.

Question 7

Do you agree with the proposals for the draft form, at Annex B, for the Part 5 community body to send to the tenant whose interests they are seeking to buy under Part 5?

Option Total Percent of All
Yes 10 50.0%
No 2 10.0%
Partially 4 20.0%
Not Answered 4 20.0%
  • There were 16 responses to this question. 10 responses agreed with the proposal for the draft form, 2 disagreed and 4 partially agreed.
  • The Law Society of Scotland said that if there is a right of pre-emption, it is not clear whether or not this is triggered by the community seeking to buy the land. If so, the tenant would step in to the landlord’s position but the community would likely still wish to acquire the tenant’s interest.
  • The Law Society of Scotland also suggested that a plan of the land they seek to acquire should be provided by the community body when they write to the tenant.
  • SLE suggested that the tenant should be advised on how they wish to respond if they so wished, and the Scottish Churches Committee said that it is unrealistic to say that a tenant will be unaffected by a change of landlord, and that while there is no requirement in Part 5 of the 2016 Act for the tenant to respond to the community body’s request, there is no good reason why the views of a tenant should not at least be sought.
  • Community Land Scotland suggested that it would be useful to add a field to capture the designation of the signatory in relation to the community body making the application, and Highlands and Islands Enterprise suggested it might be helpful to add that the form should be signed by an office bearer or authorised signatory of the community body and to add a field to capture the ‘position’ of the signatory.

Scottish Government Response

We will insert a requirement for a map to be provided, in this case to the tenant. We will publish guidance to accompany the Part 5 regulations, and this will include guidance for any tenant who receives a request to transfer their interest to the community body.

Question 8

Do you agree with the proposal to provide an official form, as part of the form at Annex A, which the community body send to the land owner, for the land owner to use to respond to the community body request for a land transfer?

Option Total Percent of All
Yes 12 60.0%
No 2 10.0%
Partially 5 25.00%
Not Answered 1 5.00%
  • There were 19 responses to this question, 12 of whom agreed with the proposal, 2 disagreed and 5 partially agreed.
  • One respondent said that it is imperative the land owner is fully apprised of the process throughout and signposted to suitable and, where relevant, independent resources about the process.
  • One respondent said that if the land owner does not consider that sufficient information has been provided there is no option in the form as drafted to request further information before making a decision as to how to respond.
  • The James Hutton Institute said that the provision of an official form at Annex A would add value to the process if an invitation to initiate a dialogue was more clearly required and/or supported through the process of this form, rather than mentioned only in the notes at the end of the form.
  • The Institute also said that more guidance is necessary regarding whether this form could or should be completed and returned by a landowner’s representative (e.g. land agent or solicitor), and noted it might be more difficult to complete this form where trustee landowning-bodies have mixed views or differing timescales. Additionally they proposed that following community approach a meeting is facilitated between the land owner and the community group to discuss the proposed land acquisition.
  • The Scottish Property Federation and another responding organisation said that the proposed form helps to make the process clear for both parties, but that it should not prevent the owner responding in other ways if they so wish.
  • The NFUS agreed that the only valid form of response should be the form in Annex A, but that if a landowner does respond outwith this, there should be some mechanism for ensuring that they are fully understanding of the required process.

Scottish Government Response

The Scottish Government fully supports dialogue between communities and land owners regarding the potential transfer of land to a community, and this can be taken forward completely outwith any formal right to buy legislation. Where communities and land owners can work together on this voluntary basis, for mutually agreeable outcomes, this may often be the best approach.

However, it is important that when it comes to formal right to buy processes, there is a due process that is clear to all parties involved and avoids misunderstandings based on subjective interpretations. While we believe that most people will work with Part 5 in good faith, a clear and due process also helps guard against deliberate exploitation of ambiguities.

Question 9

Do you agree with the options in the form for the land owner to respond to the community body request for a land transfer?

Option Total Percent of All
Yes 14 70.0%
No 3 15.00%
Partially 1 5.00%
Not Answered 2 10.0%
  • There were 18 responses to this question, 14 of which agreed with the options presented. 3 responses disagreed and 1 partially agreed.
  • One organisation which agreed said they appreciated the attempt to make clear within option 1 that a written tick-box response regarding the transfer of land (in principle) should not be treated as an agreement to transfer land in and of itself. But they wondered if this could be made even clearer, perhaps by adding the words “subject to the finalisation of relevant details as part of any transfer process”.
  • The NHS suggested there should be an option for the land owner to request further information before providing a response.
  • The James Hutton Institute said that the responses to Options 1 and 3 are positive in tone, and that they would prefer that Option 2 made clear that this response is also a stepping stone in a process of dialogue.
  • Scottish Land and Estates (SLE) suggested making it clear that while responding is a choice, it is in the land owner’s interest to do so, and the consequences for not responding should be set out. They also suggested that under “further information” it should be made clear that the land owner is not restricted to making comments on the community body’s proposals in the box provided.
  • Further, SLE suggested that it would be appropriate for a question to prompt the land owner to consider whether the sustainability of his or her wider business will be impacted as a consequence of the proposed purchase by the Part 5 community body. This would allow the land owner to properly consider any impacts in the context of sustainability.
  • The National Trust for Scotland said the form does not capture the real-world processes of property acquisition and disposal, or how negotiations are likely to be conducted.

Scottish Government Response

We would like to clarify that ticking Option 1 does not create a legal agreement to transfer land. It is an indication that the land owner agrees in principle to the idea, but any agreement would be subject to further discussion and agreement of terms and conditions, including agreement on a price for the land. The regulations have been drafted to ensure that where a land owner ticks box 1, but fails to take measures to transfer the land within the 6 month period, this would be counted as not agreeing to the request, and the community could proceed with a Part 5 application should it so wish.

In terms of the suggestions for the land owner to be able to seek further information or invite dialogue, we think these are good ideas. Our preference though is to reserve such matters for the Part 5 guidance, while keeping the right to buy process as a well delineated legal process.

Whether or not to respond to a Part 5 request is entirely a matter for the land owner, and while we always encourage genuine dialogue, we do not believe it is the Scottish Government’s role to advise land owners on whether to respond and how to respond. Failing to respond is not an offence of any sort, and there are no penalties for failing to respond. Where a land owner is in doubt about how to respond, we recommend they seek trusted advice, for example from a lawyer.

It is for land owners to consider the likely impact of a Part 5 transfer request on them, their land and any businesses they have, including as the case may be, the wider sustainability of their businesses. We will consider if these should be mentioned in the Part 5 guidance.

Question 10

Do you agree that for the purposes of indicating that the land owner agrees to the community body’s proposals, responding by using the form at Annex A is the only valid form of response, and that where a land owner indicates acceptance of the community body’s proposals by any other means, this shall be regarded as not responding to the community body for the purposes of the Part 5 process?

Option Total Percent of All
Yes 10 50.0%
No 4 20.0%
Partially 3 15.00%
Not Answered 3 15.00%
  • There were 17 responses to this question, 10 of which agreed with the question. 4 responses disagreed and 3 partially agreed.
  • One organisation said that they consider it important that both parties are aware of the process which requires to be followed and that there is an advantage in ensuring there is consistency of approach.
  • One organisation said that the way the form was worded, which was to ensure that any other form of land owner response to a request for land transfer from a part 5 community body would be invalid, could be problematic. For example, where a well-intentioned land owner or adviser copies the form and slightly amends it, thus making it invalid.
  • The NHS said there should be flexibility in how the land owner is allowed to respond, while Scottish Land and Estates said they agreed with the premise, but that if the land owner wishes to write a lengthy response to the community body’s proposal they should not be precluded from doing so by restricting responses to the confines of the small box on the form.
  • The National Trust for Scotland said that the current proposals do not set out how alternative approaches are to be explored, nor how a community body can demonstrate these have been unsuccessful or exhausted; the pre-prepared responses therefore do not capture the full scope of community engagement.

Scottish Government Response

As already stated there is nothing to prevent a land owner writing to the community in any way they so wish, but our aim is to ensure a well delineated and due process that provides clarity as to the land owner’s intentions.

We recognise that where a land owner and a community have a good working relationship, significant discussions outwith the formal Part 5 process may well take place. However such good relationships cannot always be assumed, and the Part 5 process must be clear enough to cover the many sorts of land owner-community relationships that exist, including those where a land owner chooses, for whatever reason, to have little or no involvement with the local community.

Question 11

Do you agree with the proposal that where a land owner has not agreed to the Part 5 community body’s transfer proposals in full, this is to be considered as not agreeing to the proposals for the purposes of the Part 5 process.

Option Total Percent of All
Yes 11 55.00%
No 3 15.00%
Partially 4 20.0%
Not Answered 2 10.0%
  • There were 18 responses to this question. 11 of these supported the proposal, 3 disagreed with it and 4 partially agreed with it.
  • One organisation who agreed noted that the proposal was in accordance with the position of Scots contract law, whereby a qualified acceptance of an offer is simultaneously a rejection of the first offer and also a new offer.
  • The NHS said that there should be an opportunity for alternative proposals to be discussed before the land owner is deemed not to have agreed to the proposals.
  • The James Hutton Institute suggested that it is necessary to include a stage for Government-supported and facilitated dialogue between the landowner and community. They said that if a landowner does not agree to the community’s proposals in full, there may be risks for both parties. For the community these risks are in terms of the momentum and timescale of their project, and for the landowner they are with regard to the consequences of the Part 5 regulations (i.e. potential for compulsory sale).
  • Scottish Land and Estates said they generally supported the proposal, but that this should not preclude further discussions on a negotiated sale or an alternative option to be considered.
  • On a similar theme, the National Trust for Scotland said that while the compulsory purchase power is intended to be used as a last resort, the current process does not cover how alternative approaches are to be explored, or shown to be unsuccessful. They said that the landowner may make an alternative proposal which they believe can meet the same sustainable development objectives, and asked if this would count as a refusal, or would Scottish Ministers be obliged to consider this as a counter-proposal? If so, how should this counter-proposal be recorded in the regulatory process?
  • Another organisation said that compelling reasons would be needed to deviate from the (albeit young) existing right to buy frameworks and that those compelling reasons are not immediately apparent.

Scottish Government Response

As stated above, while the options define a due process which is necessary for clarity for all involved, the Scottish Government appreciates and encourages voluntary dialogue to resolve local issues, which may involve the options of land transfer.


Contact

Email: LandReform@gov.scot