Publication - Advice and guidance

Community right to buy abandoned, neglected or detrimental land: full guidance

Published: 9 Nov 2018

Guidance in relation to Part 3A of Land Reform (Scotland) Act 2003 intended to support communities through the right to buy process from initial identification of land to the completion of a purchase.

Community right to buy abandoned, neglected or detrimental land: full guidance
1.10. Application process

1.10. Application process

First steps

1.10.1. Once a Part 3A CB is ready to submit a formal application, they should send it to the Scottish Government Community Land Team (contact details are in Annex B).

1.10.2. At the same time, they must also send it to the owner of the land to which the application relates and to any relevant creditor.

1.10.3. A relevant creditor is someone who holds a standard security over the land, or any part of it. That creditor has 60 days from receipt of the invitation to inform the Part 3A CB and Ministers of any calling-up notice or notice of default, whether any notice of default has been upheld or varied by the court or that a warrant has been granted by the court to the creditor in relation to the land, or any part of it.

Initial checks

1.10.4. On receipt of an application, initial checks will determine whether the application form, maps and other supporting documents have been completed correctly, or whether the application is one which Ministers must decline to consider. Reasons could be, for example:

  • the application does not comply with the requirements of section 97G of the Act;
  • the prescribed application form has not been used;
  • the maps or plans are not drawn to a metric scale corresponding to a scale used by the Ordnance Survey;
  • part of the form has not been completed, e.g. the name of the existing landowner or creditor in a standard security etc. may not have been noted;
  • the application covers land which is clearly not "eligible land";
  • a ballot has not been conducted correctly; or
  • the application is one which otherwise the Ministers are bound to reject.

1.10.5. These initial checks are not part of the detailed consideration of the application. If it fails to meet the basic requirements, the application will not proceed any further, and, the documents will be returned.

1.10.6. Should Ministers refuse to consider the application on one or more of these grounds, all of the papers will be returned to the Part 3A CB and they will be notified of the reason(s) for this action. The Part 3A CB may choose to make amendments to their application in order to remedy these defects and re-submit it. However, it must resubmitted within 6 months of the date of the ballot, or they will be required to hold another ballot. Ministers cannot accept an application made outwith the 6 month period.

Seeking views on your application

1.10.7. On receipt of the application and supporting documentation, Ministers will invite the following parties to send their views on your application, as appropriate. They have 60 days in which to respond with their views:

  • the owner of the land;
  • any tenant of the land;
  • any creditor in a standard security over the land or any part of it; and
  • any other person whom Ministers consider to have an interest in the application.

1.10.8. In addition, Ministers must also take reasonable steps to invite the owners of all land contiguous to the land to which the application relates to send their views.

1.10.9. Ministers must also send a copy of their invitation letters to the Part 3A CB (section 97G(9)(c) of the Act).

1.10.10. As soon as practicable after receiving the application, Ministers are also required to give public notice of it (section 97G(11) of the Act). The public notice must be advertised in a newspaper (digital or paper edition) circulating in the area where the relevant community is located and also on a publicly accessible webpage or website maintained by Ministers (regulation 4 of the Community Right to Buy Regulations 2018 (no. 140)). This provides an opportunity for anyone with an interest in the application to provide their views. Any views must be sent to Ministers in writing within 60 days of the publication of the public notice.

1.10.11. Copies of any views received by Ministers will be sent to the Part 3A CB. They will be invited to comment on them and respond to Ministers within 60 days of receipt of that invitation (section 97G(13) of the Act). Ministers must consider all views received and the responses from the Part 3A CB before they reach a decision on the application. This decision cannot be earlier than 60 days after the last date on which the Part 3A CB may respond to the views received or later if a question has been referred to the Lands Tribunal who have yet to provide a finding on that question.

Criteria for consent by Ministers

1.10.12. Once Ministers have sought views and the Part 3A CB have had a chance to comment on those views, Ministers are required to be satisfied that the application meets the criteria for consent in section 97H of the Act. The criteria are that:

  • the land to which the application relates is eligible land;
  • the exercise by the Part 3A CB of the Part 3A right to buy under the Act is in the public interest and compatible with furthering the achievement of sustainable development in relation to the land;
  • the achievement of sustainable development in relation to the land would be unlikely to be furthered by the owner of the land continuing to be its owner (Ministers are not required to be satisfied of this where an application solely relates to land, the use or management of which is such that it results in or causes harm to the environmental wellbeing of a relevant community);
  • the owner of the land is accurately identified in the application;
  • any creditor in a standard security over the land or any part of it with a right to sell the land or any part of it is accurately identified in the application;
  • the owner is not (i) prevented from selling the land, or (ii) subject to any enforceable personal obligation (other than an obligation arising by virtue of any right suspended by the Community Right to Buy Regulations 2018 (no. 201) under section 97N(3) of the Act to sell the land otherwise than to the Part 3A CB;
  • the Part 3A CB complies with the provisions of section 97D of the Act;
  • one of the following criteria is met:

(i) a significant number of the members of the community to which the application relates have a connection with the land;

(ii) the land is sufficiently near to land with which those members of the community have a connection;

(iii) where the Part 3A CB is a body mentioned in section 97D(1)(a) of the Act, the land is in or sufficiently near to the area of the community by reference to which the community is defined as mentioned in section 97D(9)(a); or

(iv) where the Part 3A CB is a body mentioned in section 97D(1)(b) of the Act, the land is in or sufficiently near to the area of the community to which the body relates;

  • the community have approved the proposal to exercise the Part 3A right to buy; and
  • that, otherwise than by the Part 3A process, the Part 3A CB has tried and failed to buy the land.

1.10.13. If the Part 3A CB is applying for consent to purchase land, the use or management of which is such that it results in, or causes harm to, the environmental wellbeing of a relevant community (as defined in section 97C(2)(b) of the Act) it must also meet the following criteria that:

  • the exercise by the Part 3A CB of the Part 3A right to buy is compatible with removing, or substantially removing, the harm to the environmental wellbeing of the relevant community;
  • the Part 3A CB has, before the application is submitted, made a request to (i) a relevant regulator (if any), or (ii) where there is more than one relevant regulator, to all such regulators to take action in relation to the land in exercise of its (or their) relevant regulatory functions that could, or might reasonably be expected to, remedy or mitigate the harm; and
  • (Regardless of whether or not a relevant regulator is taking, or has taken, action in exercise of its relevant functions in relation to the land) that the harm is unlikely to be removed, or substantially removed, by the owner of the land continuing to be its owner.

1.10.14. Some of the views received on the application (sections 97G(9)(a) and (b) and 97(G)(11) of the Act) may raise questions which Ministers will seek to clarify with either the owner or the Part 3A CB. However, other issues may be referred to the Lands Tribunal to be determined (section 97X of the Act). These can be referred by Ministers, any person who is a member of the community defined by the Part 3A CB, the owner of the land included in the application, any person with an interest in the land giving rise to a right which is legally enforceable by that person, or anyone whom Ministers invited to send views on the application. Where an issue is referred in this way, the Lands Tribunal can invite the Part 3A CB, the landowner or any other person who appears to have an interest, to make representations. If, following the finding of the Lands Tribunal, it can be concluded that the information provided in the application is incorrect or flawed, and that the application does not therefore meet the criteria for consent, Ministers may reject it.

Action on a flawed application

1.10.15. The views that have been submitted to Ministers on the application may reveal facts which may result in Ministers declining to consider the application. Where this happens, it might be appropriate for the Part 3A CB to resubmit a new application. This may avoid the need for another ballot (but see timescales for undertaking a ballot and the submission of an application at section 97J(1) of the Act). If the Part 3A CB withdraw their application before it is declined, they should consider that this may give rise to liability for compensation (section 97T of the Act), in which case the Part 3A CB might prefer to await a Ministerial decision on the matter.

Notifying the Ministers' decision

1.10.16. Ministers will give a notice, in writing, of their decision to consent or to refuse consent to the Part 3A CB's application (section 97M of the Act). This will also give reasons for their decision. This will be sent to the Part 3A CB, the owner of the land and every other person who was invited to send their views on the application (section 97M(1)(a) to (c) of the Act). The Ministers' decision will also be sent to the Keeper of the RoACBL (section 97M(1)(d) of the Act).

Appeals against the Ministers' decision

1.10.17. The Act makes provision that certain parties may appeal against the Ministers' decision to give consent to the Part 3A CB's application. An appeal may be made by:

  • the owner of the land;
  • a person who is a member of the Part 3A CB's defined community;
  • a creditor in a standard security with a right to sell land.

1.10.18. The Part 3A CB may also appeal Ministers' decision not to give consent to the application (section 97V(2) of the Act). It cannot be appealed if Ministers have declined to consider the application.

1.10.19. An appeal should be made to the Sheriff Court in the area where the land or any part of it specified in the application is located. Appeals must be lodged within 28 days of the date on which Ministers decided to consent or refuse to consent to the application. The sheriff may uphold, reverse or add conditions to the party appealing the decision. The decision of the sheriff is final (section 97V(9)(c) of the Act).


Contact

Email: Community Land Team