1. The purpose of this guidance is to provide local authorities in Scotland with information that will assist when considering the disposal of land in accordance with section 74 of the Local Government (Scotland) Act 1973 as amended by section 11 of the Local Government in Scotland Act 2003. It supplements the statutory guidance at Annex B.
2. This guidance is not exhaustive and does not purport to be an authoritative interpretation of the law. It remains the responsibility of each local authority to seek their own legal or other professional advice as appropriate and to remain aware of their need to fulfil their fiduciary duty in a way which is accountable to local people. Scottish Ministers' aim is to reduce the bureaucratic burden on local authorities and give local authorities the freedom to exercise their own judgment and discretion in disposing of land to best meet local needs and priorities.
3. It is a legal requirement that local authorities sell land for the best consideration that can reasonably be obtained, unless section 74(2A) applies, or the disposal is made in accordance with regulations made under section 74(2C), which are attached at Annex A. The legislation recognises that there may be circumstances where local authorities consider it appropriate to dispose of land for a consideration less than the best consideration that can reasonably be obtained. This non-statutory guidance aims to assist local authorities in applying the Regulations.
4. Consultation took place in 2005 and again in 2007, on the draft Regulations, draft statutory "Guidance for Valuers" and non statutory guidance to assist local authorities in applying the Regulations. Local authorities and other interested parties were included in the consultation and all responses have been taken into consideration.
Local Government (Scotland) Act 1973: Section 74
5. Local authorities are given power under section 74 of the Local Government (Scotland) Act 1973 (the 1973 Act) to dispose of land 1 in any manner they wish, subject to Part II of the Town and Country Planning (Scotland) Act 1959 and to the "best consideration" rules.
6. Section 74 applies to land held by local authorities generally but disposals of land held for housing purposes within the Housing Revenue Account require additional consent from the Scottish Ministers under section 12 of the Housing (Scotland) Act 1987. Section 12 consent is not required for houses, which are exempt from section 74 if section 14 of the 1987 Act has effect in relation to them (see section 12(7)).
Local Government in Scotland Act 2003: Section 11
7. Section 11 of the Local Government in Scotland Act 2003 amends section 74 of the 1973 Act and sets out that the Scottish Ministers may, by regulations, provide the circumstances in which local authorities may dispose of land for a consideration less than the best consideration that can reasonably be obtained.
The Disposal of Land by Local Authorities (Scotland) Regulations 2010
8. The Disposal of Land by Local Authorities (Scotland) Regulations 2010 came into force on 1 June 2010. The Regulations are at Annex A.
9. The procedure applies to every disposal of an interest in land including but not limited to sale or lease, or grant of a servitude or other interest over land. It applies whether the disposal is managed on the open market or by private treaty or dealt with internally or by external consultants.
Local Government (Scotland) Act 1973: Section 74 - statutory guidance
10. In determining the best consideration that can reasonably be obtained, the local authority must obtain a valuation report from a suitably qualified valuer. Statutory Guidance, issued under section 74 of the Local Government (Scotland) Act 1973 (attached at Annex B), provides guidance on what are suitable qualifications for a valuer and what factors are to be taken into account by the valuer in their valuation.