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
1.5. Demonstrating community support – the ballot

1.5. Demonstrating community support – the ballot

1.5.1. The ballot establishes that the Part 3A CB's application for consent has the support of the defined community.

1.5.2. The ballot must be conducted no earlier than the six months immediately prior to the Part 3A CB's application. The results of that ballot must be notified to Ministers within 21 days of the ballot itself or together with the application, if earlier. The Act also requires the ballot demonstrate the following level of support (section 97(J)(1)(b) and (c) of the Act):

  • that at least half of the members of the defined community have voted, or where fewer than half of the members of the community have voted, the proportion which voted is sufficient to justify the Part 3A CB's proceeding to buy the land; and
  • the majority of those voting have voted in favour of the proposition that the Part 3A CB buy the land.

Eligibility to vote

The Part 3A CB must be clear about who is eligible to vote in the ballot. A mistake in identifying the members of the defined community who are eligible to vote on the proposed application could invalidate the ballot and, as such, stall the progress of submitting the application. It should be remembered that irregularities in the undertaking of the ballot could lead to any right to buy under Part 3A, so far as proceeding on that application, being extinguished

Identifying the members of the defined community

1.5.3. The Part 3A CB will have already defined and established the membership of the defined community before they conduct the ballot required by section 97J of the Act and submit their application. All eligible members of the community must be given the opportunity to vote in a ballot on the proposition that the Part 3A CB exercise a Part 3A right to buy.

The Electoral Register (voters roll)

1.5.4. The most effective method to identify all the persons eligible to vote in the ballot is to check who is recorded on the current full Electoral Register in the electoral district in which the defined community lies.

1.5.5. As a full Electoral Register cannot be purchased or a copy made, a Part 3A CB will need to compile a list of names that are on the full Electoral Register. They can do this by scrutinising the edited Electoral Register for the electoral district(s) in which the defined community is located. A copy of the published (or edited) Register can be viewed at major public libraries, local authority service points and electoral registration offices. Alternatively, contact the Electoral Registration Officer (ERO) to purchase a copy (a charge may be made for a copy) of the Edited (open) Electoral Register. This will give a list of the names that are publically available. The Part 3A CB should make sure that they use the most up-to-date version available.

1.5.6. The names on the edited Electoral Register should be compared against the full Electoral Register held at electoral registration offices, or a local library which contains the names of all eligible voters. The names and addresses identified by the Part 3A CB should be checked and any differences noted. This will give the Part 3A CB a copy of all the names on the full Electoral Register, which should then be used to check that they have identified all of the relevant members of the community for the ballot.

1.5.7. Having identified the persons who reside in the defined community who are not on the full Electoral Register, the Part 3A CB should ask those individuals to confirm whether they are entitled to participate in local government elections or whether they have recently sought to be so included. These persons could include individuals who have recently moved into the area. If they are entitled to participate, their name could be added to the Electoral Register at some point during the process when the Part 3A CB is acquiring the land. The Part 3A CB should keep a note of all instances where individuals are excluded from the full Electoral Register and those where their inclusion is not straightforward.

It is also possible to contract out the running of the ballot, should the CB feel that this is a better option. There are organisations who can do this, or the CB could approach their local authority who may be able to assist.

The ballot process

1.5.8. The procedure for holding the ballot is set out in section 97J of the Act and Part 3 of the Community Right to Buy (Abandoned, Neglected or Detrimental Land) (Scotland) Regulations 2018. The Part 3A CB must follow the specified procedures. Failure to conduct the ballot in accordance with the Act and Regulations will result in the application for consent being extinguished (section 97J(9) of the Act).

1.5.9. The ballot must be conducted as a secret postal ballot. The Part 3A CB must appoint an independent observer to oversee, in person, the counting of the votes and the recording of the result. The local authority Returning Officer for election purposes may be able to provide help and assistance. Contact details can be obtained from the relevant local authority.

1.5.10. As part of the postal ballot, the Part 3A CB is required to issue certain information to all eligible voters. This is:

  • a ballot paper with the question on which the vote is to be taken;
  • the date and time by which the paper must be returned (not less than 10 days after the date of posting);
  • a description of the land and details of any rights or interests in that land;
  • the basis on which the Part 3A CB asserts that the land is eligible under Part 3A of the Act;
  • a description of the Part 3A CB's proposals for the land;
  • details of how further information on the proposals and other matters relating to the ballot may be obtained;
  • the name of the Part 3A CB;
  • the Part 3A CB company number, charity number or registration number as appropriate; and
  • contact details for the Part 3A CB.

In addition, the Part 3A CB must provide to each person eligible to vote a stamped addressed envelope for returning the completed ballot paper.

1.5.11. Voters must receive these papers with sufficient time to consider, complete and return the voting paper to the return address by the due date. The ballot papers should be sent to voters with a minimum of 10 days from the date of posting before the deadline by which they must be returned.

1.5.12. A person eligible to vote in the ballot may make a request to the Part 3A CB for a proxy vote. A request must be in writing and must:

  • state the name and address of the person eligible to vote;
  • state the name and address of the person whom the person eligible to vote wishes to appoint as a proxy;
  • be signed by the person eligible to vote;
  • contain a statement confirming that the person who is eligible to vote has consulted the proxy and that the proxy is capable and willing to act as proxy; and
  • be received by the Part 3A CB not later than 17:00 hours on the day before the date on which the ballot paper must be returned.

1.5.13. The Part 3A CB must permit a proxy vote to a person who makes a valid request in accordance with the above conditions.

Notification of ballot results

1.5.14. The Part 3A CB is required to publish, within 14 days of holding the ballot, details of the result in a newspaper (paper or digital edition) circulating in the vicinity of the defined community. They must also publish the results on a webpage or website that is operated by, or on behalf of the Part 3A CB, if one exists. The results must be published in accordance with the form in schedule 3 of the Community Right to Buy Regulations 2018 (no. 140).

1.5.15. The Part 3A CB are also required to notify to Ministers, within 21 days of the ballot (or if the application for consent is made within 21 days of the ballot, with the application), its result and details in accordance with schedule 4 of the Community Right to Buy Regulations 2018 (no. 140). The return must show:

  • the name of the Part 3A CB;
  • the date by which the ballot papers had to be returned;
  • the question which was put to the ballot;
  • the number of persons eligible to vote in the ballot;
  • the number of persons who voted;
  • the number of proxy votes cast;
  • the number of spoilt votes;
  • the number of votes cast in favour of the proposal to buy the land;
  • details of the information that was supplied by the Part 3A CB to persons eligible to vote in the ballot;
  • the name, contact details and signature of the independent observer that was appointed to oversee the counting of the votes and recording of the result;
  • the name, address and telephone number, email and signature of the Part 3A CB representative making the ballot return; and
  • the date of the ballot return.

1.5.16. Ministers may request that the Part 3A CB provide them with additional information relating to the ballot (section 97J(5) of the Act). This may include information relating to any consultation with the eligible voters that the Part 3A CB undertook during the period when the ballot was being carried out. This information must be provided if it is requested by Ministers.

Cost of running the ballot

1.5.17. The Part 3A CB is responsible for meeting the cost of running the ballot. However, the Part 3A CB can apply to Ministers to request reimbursement of the cost of the ballot (regulations 12 to 16 of the Community Right to Buy Regulations 2018 (no. 140)).

Procedure for applying for the reimbursement of the expense of the ballot

1.5.18. If applying for reimbursement for the expense of the ballot, the Part 3A CB must adhere to the timescales laid out in the Community Right to Buy Regulations 2018 (no. 140).

1.5.19. An application for reimbursement of the expense of conducting a ballot must include all of the relevant information listed in those regulations.

1.5.20. Ministers will consider the Part 3A CB's application and take a decision as to whether to reimburse the expenses. It is important that any claims for expenses in relation to the ballot are fully vouched. This evidence can, for example, be invoices, debit and credit notes, statements and receipts, though this list is not exhaustive.

1.5.21. Ministers will consider the costs for which reimbursement is sought on a case by case basis. All costs must have been reasonably incurred in the conduct of the ballot. Examples of the types of costs that may be reimbursed by Ministers following consideration are:-

  • administration to conduct a ballot (time and expertise);
  • costs to access the voters' roll;
  • stationery (paper and envelopes);
  • postage costs (to send out voting papers and for the return of the voting papers);
  • printing costs (for ballot paper and information sheet);
  • independent observer (if a charge is made for such services).

1.5.22. Examples of the types of items and services that Ministers will not approve for reimbursement are:

  • any costs of advertising the ballot;
  • any costs of advertising the ballot result, over and above the requirements in the legislation;
  • any costs relating to activities to encourage voters to vote and to vote for a particular outcome;
  • any costs that have been agreed with another party to be undertaken free of charge but are later charged for (i.e. retrospective costs).

1.5.23. When Ministers calculate the expense of conducting the ballot, they will consider:

  • whether any amount was reasonably incurred in the conduct of the ballot;
  • whether any amount is fully vouched;
  • whether there are any costs that are not eligible for reimbursement.

1.5.24. Ministers have 60 days from the receipt of the application for reimbursement to make a decision. They will set out reasons for their decision.

Appealing against a decision by Ministers for the reimbursement of ballot expenses

1.5.25. The Part 3A CB which applied to Ministers for the reimbursement of the expenses may choose to appeal the Ministers' decision to the Lands Tribunal for Scotland. If they wish to appeal, they must lodge their appeal within 28 days of receiving Ministers' decision.

1.5.26. The decision of the Lands Tribunal is final.


Contact

Email: Community Land Team