Part 5 of the Land Reform (Scotland) Act 2016 creates a process by which local, place-based communities can seek to acquire a right to buy land or a tenant’s interest to further the achievement of sustainable development in relation to the land, even where the owner of the land does not wish to sell the land or the tenant does not wish to sell their interest.
Where an application is successful, the right to purchase the land applies even where the owner of the land is not willing to sell it. It is therefore, like Part 3A of the Land Reform (Scotland) Act 2003 (the Community Right to Buy Abandoned, Neglected or Detrimental Land), a form of compulsory purchase. Part 5 of the 2016 Act is currently not yet in force.
Part 5 of the 2016 Act contains a number of regulation-making powers. They allow Scottish Ministers to make regulations about a number of matters that relate to Part 5. Under Part 5, Scottish Ministers can only consent to a right to buy application where they are satisfied that certain conditions are met. These conditions, which are in section 56 of the 2016 Act, are of two sorts:
(a) sustainable development conditions
(b) procedural requirements
There are no regulation-making powers in Part 5 that would allow modification of these conditions as they are fully set out in the 2016 Act. There are, however, regulation-making powers for some of the procedural requirements. These include the power under section 56(9), which allows regulations to be made about the form and content of the Part 5 community body’s request to a land owner or tenant to seek the transfer of land or tenant’s interest prior to any formal right to buy application.
Section 56(9) also allows regulations to be made about the form and content of a response from a land owner to a community body’s request and the circumstances in which owners are taken not to have responded.
In addition to the regulation-making powers connected with some of the procedural requirements, there are several other regulation-making powers contained in Part 5. These include powers to specify types of land and tenant’s interests which are not eligible for purchase under Part 5, and regulations for governing community ballot processes.
This contributes to the following national outcomes:
- We value and enjoy our built and natural environment and protect it and enhance it for future generations.
- We reduce the local and global environmental impact of our consumption and production.
- We live in well-designed, sustainable places where we are able to access the amenities and services we need.
- We have tackled the significant inequalities in Scottish society.
Who will it affect?
The implementation of the Part 5 legislation will affect local place-based communities who wish to buy land and also public and private land owners whose land becomes subject to such a request. It will also affect tenants where their tenancies or interests are transferred to a new community body land owner.
What might prevent the desired outcomes being achieved?
Community bodies who wish to make an application to purchase land under Part 5 must meet a number of procedural requirements and sustainable development conditions against which a Part 5 application must be assessed. It is important that communities wishing to use Part 5 understand the requirements and the purpose of Part 5, which is sustainable development.
Failure to adhere to the requirements, or to make a good case for meeting the sustainable development conditions, would lead to the application either being declined or rejected.
Funding is also important, since where compulsory transfer of land is approved by Scottish Ministers, it can only take place where the full value of the land (and tenant’s interest in some cases), as determined by an independent valuer, can be paid by the community body. Community bodies must therefore make sure that they have access to funding to buy the land they seek. The Scottish Land Fund (SLF) provides £10 million per annum to support community ownership projects, but to be eligible for SLF support, communities must raise at least 5% of any of the transfer value from sources other than the SLF.