The community right to buy is not a new concept in Scotland, with the right having been introduced by the Land Reform (Scotland) Act 2003. This allows community bodies to apply to have their interest in land registered and gives them a right of first refusal, in certain circumstances, if the landowner wishes to sell. The right was expanded by the Community Empowerment (Scotland) Act 2015 to include a community right to buy abandoned or neglected land, which can be exercised regardless of whether the owner wishes to sell. The latest community right to buy, this time for the purpose of sustainable development, also applies to land the owner may not wish to sell. It has been introduced by new regulations on 26 April 2020 which brings into force Part 5 of the Land Reform (Scotland) Act 2016.
What land?
Unlike the right to buy abandoned or neglected land, the new right to buy for sustainable development applies to any area of land, regardless of its condition or state of use. The land can be urban or rural, provided it does not form part of croft, is not a privately owned home and, in some circumstances, is not owned by the Crown.
Who can exercise the right?
Like the existing rights to buy, only a community body can exercise the right. A community body must meet certain criteria with regards to member numbers and their formation, for example they must be a Company Limited by Guarantee, Scottish Charitable Incorporated Organisation or Community Benefit Society. The community body can also nominate a third party organisation to exercise the right on its behalf.
The process
The process to exercise the right to buy is complex and involves a number of stages. After being incorporated, the community body must identify anyone having an interest in the land they wish to buy. This includes the owner, any tenant and any bank or other party which has a mortgage over the land. These parties must be notified of the intended application and allowed the opportunity to make representations within specified time frames. There must also be a community ballot seeking approval of the purchase. It is important to note that the right to buy is a last resort and a community body must have already tried and failed to agree a deal to purchase the land from the landowner before submitting an application for consideration.
If an application reaches the Scottish Ministers, it will only be approved if the transfer of land would meet the following criteria:-
- It is likely to further the sustainable development of the land;
- It is in the public interest;
- It is likely to result in significant benefit to the community; and
- It is the only practicable, or the most practicable, way of achieving that significant benefit.
The Scottish Ministers must also be satisfied that not granting consent would result in harm to the community. 'Sustainable development' is not defined in the legislation so it is yet to be seen how this will be interpreted by the Scottish Ministers.
Impact
While the number of applications received for the existing community right to buy abandoned and neglected land is low, it could be said that extending the right to buy regime encourages more open discussions between community bodies and landowners. This could in itself be leading to more land sales being agreed, without the need for a formal application to the Scottish Ministers. Indeed, the recent announcement that discussions between Buccleuch Estates and The Langholm Initiate relating to the sale of 10,500 acres at Langholm More are progressing well, with the hope of a positive conclusion by the end of the year, shows such open discussions are taking place. Statistics show community ownership of land is increasing (gov.scot) and it will be interesting to see how the introduction of this new right to buy will contribute to the Scottish Government's plan to promote community ownership of land in Scotland.
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