One of the key features of the Land Reform (Scotland) Act 2016 ("2016 Act") is a new "right to buy for sustainable development". Keen followers of land reform in Scotland may be aware that this is an entirely new community right to buy land, rather than a development or amendment of existing rules. However, those of you who did not follow the passage of the Act closely, or are suffering from Land Reform fatigue, may be forgiven for finding it hard to work out where this new right fits into the bigger picture. When you add into the mix the Community Empowerment (Scotland) Act 2015 which also introduced new rules on community rights to buy, it is hardly surprisingly that most of us have just about lost track of what rights now apply in Scotland and in what circumstances they may be exercised.
'ORIGINAL' Community Right to Buy (CRTB)
First up we have the Pre-emptive Community Right to Buy which was introduced in the Land Reform (Scotland) Act 2003 ("2003 Act"). It was the first community right to buy in Scotland and has been subject to amendment most recently and significantly by the Community Empowerment (Scotland) Act 2015 ("2015 Act").
The original CRTB provides eligible community bodies with the opportunity to register an interest in land, including salmon fishings and minerals, so that when the land affected becomes available for purchase, the community has a pre-emptive right to buy it for the benefit of the local community.
Previously, only communities with a population of up to 10,000 were eligible to register an interest but, as a result of the 2015 Act, this now applies to the whole of Scotland, taking in city centres and large towns as well as villages.
The 2003 Act also created a Crofting Community Right to Buy. It does not require a willing seller and is therefore often referred to as an 'absolute' right to buy, to distinguish it from a pre-emptive right. The Crofting CRTB is quite distinct from the other community rights to buy, so we will not review it further here.
As noted above, the 2015 Act amended the original CRTB. However, it also introduced a brand new Community Right to Buy "Abandoned or Neglected" Land. The new 2015 CRTB is not yet in force but, in due course, a landowner may be compelled to sell his property if it is deemed to be wholly abandoned or neglected, or if 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. The 2015 CRTB is not, therefore, pre-emptive.
The decision as to whether land is 'eligible' for the 2015 CRTB will be made by the Scottish Ministers, having regard to secondary legislation (regulations). In addition, the Scottish Ministers must be satisfied that the community body's proposals for the land are in the public interest and are compatible with furthering the aim of sustainable development.
As noted at the outset, the 2016 Act brought in a new community right to buy to "further Sustainable Development".
The 2016 CRTB is not pre-emptive so, once it is in force, it will allow the Scottish Ministers to permit a community purchase against the landowner's wishes provided it will further sustainable development and that it is in the public interest. The sustainable development conditions are that:
- the transfer of land is likely to further the achievement of sustainable development in relation to the land;
- the transfer of land is in the public interest;
- the transfer of land is likely to result in significant benefit to the relevant community and is the only practicable way of achieving that significant benefit; and
- not granting consent to the transfer is likely to result in "significant harm" to the community.
In determining what constitutes significant benefit or significant harm, the Ministers must consider the likely effect of granting or refusing consent on the lives of persons in the community, with reference to economic development, regeneration, public health, social wellbeing and environmental wellbeing.
The land potentially affected by the 2016 CRTB is defined as including 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 (NB salmon fishings and minerals can only be bought if the community is also applying, or has applied, to buy the land to which the fishings or mineral rights relate).
The right may be exercised in relation to an owner's interest and a tenant's interest in the same land but separate applications for consent are required and they may be decided differently. So in theory you could have a situation where the community body becomes the landlord of a current tenant (though on the face of it, it's hard to imagine circumstances in which that would further sustainable development).
Readers may note the omission of any reference to the Agricultural Tenant's Right to Buy, which was also created in the 2003 Act. This is deliberate on the grounds it is not a community right to buy. For completeness it is worth mentioning that the 2016 Act tinkered with the rules on that right to buy as well (most significantly by removing the requirement for registration, meaning that all secure agricultural tenants will automatically have a right to buy once the relevant part of the 2016 Act is in force). The 2016 Act also created a wholly new right of forced sale if an agricultural landlord is in breach of the lease of the holding.
In summary, if we leave aside crofting and agricultural rights, which we will cover separately at a future date, once all of the new rules are brought into force we will have:
- the original, pre-emptive, community right to buy now applying to rural and urban land throughout the whole of Scotland;
- the new community right to buy "abandoned or neglected" ground, created in the 2015 Act; and
- the new community right to buy land to "further sustainable development", created in the 2016 Act.