The public is perhaps now more familiar with the original community right to buy land which was introduced by the Scottish Government in the Land Reform (Scotland) Act 2003 (“the 2003 Act”); a pre-emptive right to buy requiring a willing seller, which has now been extended to apply to the whole of Scotland, not just rural settlements. However, some may not be so familiar with the new Part 3A of the 2003 Act introduced by the Community Empowerment (Scotland) Act 2015, which contains measures to force the sale of land deemed to be abandoned, neglected or detrimental to the environment, provided there are clear benefits to the community on acquisition. We have previously written about the introduction of this right to buy.
The Scottish Government’s consultation period on the proposals for secondary legislation relating to this right to buy has now ended. With the publication of The Community Right to Buy (Abandoned, Neglected or Detrimental Land) (Eligible Land, Regulators and Restrictions on Transfers and Dealing) (Scotland) Regulations 2018, details are now available on the matters which Ministers must consider when establishing whether land is eligible for the right to buy by reason of being abandoned, neglected or detrimental. The Regulations come into force on 27 June 2018.
There are four broad categories of matters:
- the physical condition of the land;
- the designation or classification of the land;
- the use or management of the land; and
- whether the condition of the land is such that it is causing harm to the environmental wellbeing of the community.
The first category relates to the physical condition of the land or any structure on it, and the length of time the land or structure has been in that condition. Consideration should be given to whether the land or any structure is a risk to public safety, has or is likely to have a detrimental effect on adjoining land, or whether it causes or is likely to cause environmental harm.
When assessing the designation or classification of the land in relation to whether it is abandoned or neglected, Ministers should consider matters such as whether the land forms part of a nature reserve or conservation area, whether it is a designated special site, whether it contains a listed building or scheduled monument and whether there are any policies or guidance in a local or strategic development plan or the National Planning Framework 3 relevant to the land or any part of it.
In determining whether the use or management of the land results in it being abandoned, neglected or detrimental, Ministers will have to think about
- whether the land or any structure on it is used for public recreation or leisure activities, or
- the extent to which it is held for the purpose of preserving or conserving the natural, historic or built environment, or
- whether it is used or managed for an activity which requires a permit or licence. If it is not being used in these ways or has not been used or managed for any discernible purpose, then the period of time for which it has not been so used or managed should be taken into account.
The final category relating to whether there is harm to the environmental wellbeing of the community requires Ministers to look at whether the use or management of the land or structure has resulted in a statutory nuisance under the Environmental Protection Act 1990, or whether it is subject to a closure notice or warning notice made under the Antisocial Behaviour etc (Scotland) Act 2004. As noted in our previous article in relation to this right to buy, an individual’s home is not eligible land unless it is occupied by a tenant. The Regulations clarify what classes of occupancy or possession will constitute a tenancy and these include tied accommodation, occupancy under a tenancy agreement, residential accommodation relating to employment or education, temporary accommodation provided to homeless persons and occupiers under a liferent.
In terms of what constitutes an individual’s home, this includes the curtilage of the home, land used for storing possessions or vehicles used by the occupiers of the home, to grow food, for leisure activities, to keep pets or used in a business run from home. Land used for drainage or through which utilities are routed is also not eligible, nor is the access to a home, as long as it is owned by the same person who owns the home.