January 13, 2016
The devil’s in the detail
Keen observers of the Scottish Parliament will have noticed that when new legislation is passed a period of time ensues when it seems that nothing much is happening. And this might be the conclusion that communities have come to about the Community Empowerment Act – passed six months ago and not a peep since. But be assured. Furious paddling is going on beneath the surface. Regulations and guidance are being drafted and redrafted for the many parts of the Act. The evidence of which is starting to emerge.
The Community Empowerment Bill received Royal Assent and became an Act on 24 July 2015. The text of the Act can be found on the Legislation.gov.uk website at http://www.legislation.gov.uk/asp/2015/6/contents/enacted
Please note that the numbering of the Act has changed from the Bill, as new sections and Parts were inserted during its passage through the Scottish Parliament.
When will the Act come into force?
The different parts of the Act are likely to come into force at different times. In most cases secondary legislation (orders and regulations) and guidance need to be developed before the legislation can come into effect. This will be done through a process of engagement and co-production with people affected by the legislation. More information about those processes and timetables will be available on the websites listed below as they develop.
As a rough estimate, we expect most parts of the Act to come into effect by summer 2016.
What does the Act do?
Overall, the Act will help to empower community bodies through the ownership or control of land and buildings, and by strengthening their voices in decisions about public services.
There are 11 topics covered by the Act. The information below gives a brief summary of each, and contact details to find out more. Websites give the current situation, and will have information about implementation of the Act as it becomes available.
Part 1: National Outcomes: Requires Scottish Ministers to continue the approach of setting national outcomes for Scotland. They must consult on, develop and publish a set of national outcomes. They must also regularly and publicly report progress towards these outcomes and review them at least every five years. Public authorities and other persons or organisations that carry out public functions must have regard to the national outcomes in carrying out their devolved functions.
Part 2: Community Planning: Places Community Planning Partnerships (CPPs) on a statutory footing and imposes duties on them around the planning and delivery of local outcomes, and the involvement of community bodies at all stages of community planning. Tackling inequalities will be a specific focus, and CPPs will have to produce “locality plans” at a more local level for areas experiencing particular disadvantage.
Part 3: Participation Requests: Provides a mechanism for community bodies to put forward their ideas for how services could be changed to improve outcomes for their community. This could include community bodies taking on delivery of services.
Part 4: Community Rights to Buy Land: Amends the Land Reform (Scotland) Act 2003, extending the community right to buy to all of Scotland, urban and rural, and improving procedures. Part 4 also introduces a range of measures to amend, and in some areas, simplify, the crofting community right to buy. Finally, Part 4 introduces a new provision for community bodies to purchase land which is abandoned, neglected or causing harm to the environmental wellbeing of the community, where the owner is not willing to sell that land. This is if the purchase is in the public interest and compatible with the achievement of sustainable development of the land.
Part 5: Asset Transfer Requests: Provides community bodies with a right to request to purchase, lease, manage or use land and buildings belonging to local authorities, Scottish public bodies or Scottish Ministers. There will be a presumption of agreement to requests, unless there are reasonable grounds for refusal. Reducing inequalities will be a factor for public authorities to consider when making a decision. Relevant authorities will be required to create and maintain a register of land which they will make available to the public.
Part 6: Delegation of Forestry Commissioners’ Functions: allows for different types of community body to be involved in forestry leasing. This opportunity will be available under a revised National Forest Land Scheme which will be published after the Asset Transfer Requests provisions come into force.
Part 7: Football Clubs: The Scottish Government is committed to the principle that supporters should have a role in decision-making, or even ownership when the opportunity arises, of their football clubs. The Act provides powers for Ministers to make regulations to facilitate supporter involvement and give fans rights in these areas. The Scottish Government will shortly issue a consultation paper to explore the best way of taking this forward.
Part 8: Common Good Property: Places a statutory duty on local authorities to establish and maintain a register of all property held by them for the common good. It also requires local authorities to publish their proposals and consult community bodies before disposing of or changing the use of common good assets.
Part 9: Allotments: Updates and simplifies legislation on allotments. It requires local authorities to take reasonable steps to provide allotments if waiting lists exceed certain trigger points and strengthens the protection for allotments. Provisions allow allotments to be 250 square metres in size or a different size that is to be agreed between the person requesting an allotment and the local authority. The Act also requires fair rents to be set and allows tenants to sell surplus produce grown on an allotment (other than with a view to making a profit).
Part 10: Participation in Public Decision-Making: A new regulation-making power enabling Ministers to require Scottish public authorities to promote and facilitate the participation of members of the public in the decisions and activities of the authority, including in the allocation of its resources. Involving people and communities in making decisions helps build community capacity and also helps the public sector identify local needs and priorities and target budgets more effectively.
Part 11: Non-Domestic Rates: Provides for a new power for councils to create and fund their own localised business rates relief schemes, in addition to existing national rates relief, to better reflect local needs and support communities.
How can I register interest in taking over a building owned by a local authority or public body?
The legislation on asset transfer (Part 5 of the Act) is not in force yet. But many local authorities, and some public bodies, already have asset transfer schemes on a voluntary basis. The first step is to contact the owner and ask them about the property. You may also find it helpful to contact the Community Ownership Support Service for advicehttp://www.dtascommunityownership.org.uk/.
If the property is in a rural area or small town you may want to consider the community right to buy process (this will be extended to urban areas when Part 4 of the Act comes into force). Please see the Scottish Government website for more information http://www.gov.scot/Topics/farmingrural/Rural/rural-land/right-to-buy.
Which public bodies are covered?
Where parts of the Act apply to a particular list of bodies, these are set out in the schedules at the end of the Act. In each of these cases, Scottish Ministers have powers to add new public sector organisations to the list, if needed.
Community planning partners are local authorities and the bodies listed in schedule 1. Section 13(2) lists organisations that have additional statutory duties to facilitate community planning and take reasonable steps to ensure the CPP fulfils its functions efficiently and effectively.
Participation requests can be made to the “public service authorities” listed in schedule 2.
Asset transfer requests can be made to the “relevant authorities” listed in schedule 3.
How is a “community” defined in the Act?
In most parts of the Act, “community” is not defined. It is left to each group of people to describe what they have in common.
For national outcomes the Scottish Ministers are required to consult with people who represent the interests of communities in Scotland, when determining or carrying out a review of the national outcomes. Under section 1(11), “ “community” includes any community based on common interest, identity or geography”.
Parts 2 (community planning) and 8 (common good) refer to “communities (however described) resident or otherwise present in the area of the local authority”. Parts 3 (participation requests) and 5 (asset transfer requests) are open to bodies which relate to a particular community, but it is up to the body to define that community itself.
The exception is in Part 4 of the Act, which amends the Land Reform (Scotland) Act 2003. In Part 2 (community right to buy) and the new Part 3A (abandoned, neglected or detrimental land) of the 2003 Act, a community must be defined by reference to postcode units or other types of area which may be prescribed by the Scottish Ministers. (Crofting communities are defined by township, or by other criteria with Ministers’ approval.)
What type of community groups can use the rights in the Act?
Different parts of the Act have different requirements for the community groups that can get involved, and different terms to describe them, to make clear which is which.
In Part 1 (national outcomes), Scottish Ministers have to consult “persons who appear to them to represent the interests of communities in Scotland”. “Community” includes any community based on common interest, identity or geography, and any individual, group or organisation could be included.
Parts 2 (community planning), and 8 (common good) do not have any formal requirements for community bodies that want to be involved in the process, except that they are established to promote or improve the interests of communities “resident or otherwise present” in the area.
Section 20 sets out the types of body which can make a participation request. This includes community controlled bodies (defined in section 19), community councils, groups without a written constitution, and bodies designated for the purpose by Scottish Ministers.
Section 77 sets out the types of body which can make an asset transfer request, which are community controlled bodies (as defined in section 19) or bodies designated for the purpose by Scottish Ministers. If they want to make a request for ownership of the land, rather than lease or use, they must also be a company, a SCIO or a Community Benefit Society which meets the criteria in section 80.
Part 4 of the Act amends the requirements for community bodies wanting to exercise the community right to buy orcrofting community right to buy under the Land Reform (Scotland) Act 2003, and sets out the requirements for the new right to acquire abandoned, neglected or detrimental land. These allow for companies limited by guarantee, SCIOs and community benefit societies to be included, where they meet the other criteria required.
Part 6 amends the requirements for community bodies who want to take up forestry leasing from the Forestry Commission Scotland. Instead of having to be a company limited by guarantee, they can be any type of body corporate with a written constitution which meets the other criteria set out in section 7C of the Forestry Act 1967, as amended.
How can I register interest in taking over a building owned by a local authority or public body?
The legislation on asset transfer (Part 5 of the Act) is not in force yet. But many local authorities, and some public bodies, already have asset transfer schemes on a voluntary basis. The first step is to contact the owner and ask them about the property. You may also find it helpful to contact the Community Ownership Support Service for advicehttp://www.dtascommunityownership.org.uk/ .
If the property is in a rural area or small town you may want to consider the community right to buy process (this will be extended to urban areas when Part 4 of the Act comes into force). Please see the Scottish Government website for more information http://www.gov.scot/Topics/farmingrural/Rural/rural-land/right-to-buy
Does Asset Transfer under the Act have to be at market value?
No. The Act does not say anything about how much a community body would be expected to pay for transfer of an asset. It only says the community transfer body must state in the asset transfer request the price it is prepared to pay. The relevant authority must agree to the request unless there are reasonable grounds for refusal, taking into consideration (amongst other things) the benefits that may arise from the community body’s proposal and comparing that to the benefits of any other proposal.
Local authorities can dispose of land at less than market value, under the Disposal of Land by Local Authorities (Scotland) Regulations 2010. The regulations require them to consider whether the disposal is likely to promote or improve economic development or regeneration, health, social wellbeing or environmental wellbeing. These matters are also to be considered in deciding whether to agree to or refuse an asset transfer request.
Other relevant authorities are subject to the Scottish Public Finance Manual. This states that “Where there are wider public benefits, consistent with the principles of Best Value, to be gained from a transaction, disposing bodies should consider disposal of assets at less than Market Value. This includes supporting the acquisition of assets by community bodies, where appropriate.”
We expect that the guidance to be developed on asset transfer will address the information that community transfer bodies may need in order to offer an appropriate price, and how relevant authorities can assess the value of benefits offered by community proposals.