We have written previously about the fact that a number of different community rights to buy now exist in Scotland, and that this has led to some confusion about when the different rights actually apply.
Having looked recently at the terms of the original community right which was introduced in the Land Reform (Scotland) Act 2003, we are now turning our attention to the right to buy which was introduced by the Community Empowerment (Scotland) Act 2015.
The 2015 Act introduced a community right to buy “abandoned” or “neglected” land, which we anticipate will come into force next year. Under the 2015 Act provisions, a landowner may be compelled to sell his property where it is deemed to be “wholly abandoned or neglected or the use or management of the land is such that it results in or causes harm, directly or indirectly, to the environmental wellbeing of the community”.
This community right to buy is therefore conditional rather than pre-emptive which distinguishes it from the original community right to buy, which only applies if the owner actually takes steps to sell the land affected.
There is no requirement for the seller to be willing to sell. Indeed, in order to apply to the Scottish Ministers to exercise the right to buy, the community body must have already tried and failed to buy the land.
Before giving consent, the Scottish Ministers must be satisfied that:
- the land in question is “eligible” (i.e. it meets the criteria for being considered abandoned or neglected or that its current use constitutes harm to the environmental wellbeing of the local community, as set out below);
- the exercise of the right by the community body is in the public interest and compatible with furthering the achievement of sustainable development in relation to the land;
- the achievement of sustainable development is unlikely to be furthered by the owner;
- the owner is not prevented from selling the land;
- the community has approved the proposal to exercise the right to buy; and
- the community body has previously tried and failed to buy the land.
Is all land in Scotland affected?
The land potentially affected by the 2015 right to buy is defined widely; so the scope of this community right to buy is potentially quite extensive. Eligible land may include bridges and other structures built on or over land, inland waters, canals, the foreshore, salmon fishings in inland waters, and mineral rights that are owned separately from the land. It is worth noting that salmon fishings and mineral rights can only be bought where the community body is also applying, or has applied, to buy the land to which the fishings or mineral rights relate.
An individual’s home will never be eligible unless it is occupied by a tenant, nor will land pertaining to an individual’s home (the scope of what this will actually include will be set out in regulations); croft land; certain land owned by the Crown; or any other land of such other descriptions or classes that the Ministers may specify in regulations at a later date. In summary, the Scottish Ministers have wide discretion to decide, in effect, how large an area of garden or policy ground should be excluded and what other kinds of land (if any) should be exempt.
There will be a new register administered by Registers of Scotland that will contain details of applications under the 2015 Act (and also those in terms of the 2016 Act which will be covered separately). It will be known as the “Register of Applications by Community Bodies to Buy Land”.
How is the land valued?
If consent is given, the Scottish Ministers will appoint an independent valuer (paid for by the Scottish Ministersm) to assess the market value of the land and associated interests, and a community ballot will be held. As long as the ballot demonstrates adequate levels of community support for the purchase, the community body can then exercise its right to buy.
Who decides if land is “abandoned” or “neglected” and therefore treated as eligible?
The decision as to whether land is “eligible” will be made by the Scottish Ministers, with regard to secondary legislation (regulations). The Scottish Government has published draft regulations on “eligible” land and recently consulted on those. Based on these, the factors that the Scottish Ministers will be obliged to take into account fall into three broad categories:
- the physical condition, such as the derelict nature of a building or overgrown weeds and the effect on the amenity of the surrounding area, public safety and the environment;
- the use of land, or lack of use as the case may be, including whether the land is a nature reserve, held for conservation purposes or used for public recreation; and
- any designation or classification of the land, such as land which has been classed as contaminated, or buildings that are listed buildings or scheduled monuments.
Until the regulations are finalised and the right to buy comes into force, it is difficult to predict how the test will be applied in practice. Many clients have raised concerns about the fact that land may in some instances be left in a condition that might appear either abandoned or neglected for very good reason. In a rural context, there may be sound environmental reasons for allowing land to ‘return to nature’ and in a more urban setting, although the land does not have a current use, the owner may have a significant future use in mind and may actively be taking steps to enable that future use – even though it is not evident ‘on the ground’.
Prudent land managers should bear in mind these types of issues when considering future management plans and, if concerned about the potential impact of the right to buy introduced by the 2015 Act, take further advice.