A key aim of the Community Empowerment (Scotland) Act 2015 legislation is the promotion of “asset transfers” from public bodies to community organisations. These transfers provide a statutory mechanism for communities to request to buy, lease or manage or use land or buildings owned by certain public bodies. The Scottish Government recently published draft regulations, set to come into force on 23 January 2017, that provide details about how the scheme should work in practice. Here’s what you need to know.
Which public bodies are affected? “Relevant authorities”
Schedule 3 of the Act lists a number of ‘relevant authorities’ including local authorities, the Scottish Ministers and the Crofting Commission. Section 78 allows the Scottish Ministers to designate other bodies as relevant. This could include ALEOs (arm’s length external organisations) set up by an existing relevant authority. At present no ALEOs are listed separately but, as they frequently manage property owned by their parent authority, a request could be made directly to the authority itself.
Who can apply for an asset transfer? “Community Transfer Bodies”
Section 77 defines community transfer body (CTBs). These must either be a ‘community controlled body’ (a community group with a written constitution) or a body designated by the Scottish Ministers. What this means in practice is:
- A company limited by guarantee with articles of association that define the community it represents, has at least 10 members, rules about community control and financial management, and a provision empowering it to use the community right to buy mechanism under the 2003 Act;
- A Scottish Charitable Incorporated Organisation (SCIO) with similar articles on community control;
- A Community Benefit Society (BenCom) with similar registered rules on community control;
- A Crofting Community Body, namely a company limited by guarantee with at least 20 members and similar articles on community control.
If a CTB wants to purchase land, rather than simply lease or use it, then section 80 lays out some further requirements.
How does the procedure work?
The draft Asset Transfer Request (Procedure) (Scotland) Regulations 2016 (SSI 2016/357) supplement section 79 (making a request), section 82 (decisions about requests), and section 83 (next steps after a request is agreed).
The Regulations provide that requests must be in writing and describe the purpose that the land is to be put and how the transfer will be funded
The “validation date” is also defined. This is the date on which completed information is received and this starts the 6 month time limit for the authority to make a decision on the request.
The Regulation sets out what the authority must do in terms of:
- notifying anyone currently occupying or using the land subject to the request;
- publicising the request and allowing representations to be made;
- issuing and publicising their decision.
What if the request is refused, ignored or is onerous terms and conditions?
The Asset Transfer Request (Review Procedure) (Scotland) Regulations 2016 (SSI 2016/358) govern the procedure when the request is made to a local authority and sets out how a local authority should review its decision.
The Asset Transfer Request (Appeals) (Scotland) Regulations 2016 (SSI 2016/359) apply where there is an appeal of a decision of a body other than a local authority. Generally speaking this will involve an appeal to the Scottish Ministers, although the Regulations also apply where the request is made to the Scottish Ministers.
In all cases, there is a 20 working day time limit to lodge a review or appeal notice.
What if the request is accepted?
An acceptance result in a decision notice being sent by the authority accepting the request. A further 6 month time limit is set for a contract to be concluded between the CTB and the authority.
If no contract is concluded within the 6 months, then the CTB can appeal to the Scottish Ministers or ask the Scottish Ministers for more time. The appeal timescale is tight – just 10 working days The review will be conducted by a panel of three (no more than one of whom can be a member of staff of the Scottish Ministers).In the even the appeal is upheld the panel can make arrangements for the transfer process to be taken forward.