August 30, 2019
An important next step in the land reform journey begins with a consultation that ends on 18th September. This relates to the potentially controversial Part 5 of the 2016 Land Reform Act which is the community right to buy land to further sustainable development. It is controversial because in certain circumstances, when a prescribed set of conditions have been met, a community will have the right to acquire land even if the landowner doesn’t want to sell. In effect a form of compulsory purchase. Important therefore, that the Scottish Government get a strong response from the sector.
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Part 5 of the 2016 Act creates a process by which local, place-based communities can seek to acquire a right to buy land to further the achievement of sustainable development in relation to that land. Where an application is successful, the right to purchase the land applies even where the owner of the land is not willing to sell it. It is therefore, like Part 3A of the Land Reform (Scotland) Act 2003 (the Community Right to Buy Abandoned, Neglected or Detrimental Land), a form of compulsory purchase. Part 5 of the 2016 Act is currently not in force.
Part 5 of the 2016 Act contains a number of regulation making powers. They allow Scottish Ministers to make regulations about a number of matters that relate to Part 5. The main purpose of this consultation is to explain the Scottish Government’s proposals for how it will use these regulation making powers, to present a broad outline of how Part 5 will work once it is in force, and to give you the opportunity to put forward your views on these proposals.
Under Part 5, Scottish Ministers can only consent to a right to buy application where they are satisfied that certain conditions are met. These conditions, which are in section 56 of the 2016 Act, are of two sorts:
(a) sustainable development conditions
(b) procedural conditions
The sustainable development conditions are explained further on in this consultation. It should be noted that there are no regulation making powers in Part 5 that would allow modification of these conditions as they are fully set out in the 2016 Act.
There are however regulation making powers for some of the procedural requirements. These include the power under section 56(9), which allows regulations to be made about the form and content of the Part 5 community body’s request to a land owner or tenant to seek the transfer of land or tenant’s interest prior to any formal right to buy application. Section 56(9) also allows regulations to be made about the form and content of a response from a land owner to a community body’s request and the circumstances in which owners are taken not to have responded.
In addition to the regulation making powers connected with some of the procedural conditions, there are several other regulation making powers contained in Part 5. These include powers to specify types of land and tenant’s interests which are not eligible for purchase under Part 5, and regulations for governing community ballot processes.
Our proposals for how we will use these regulation making powers are set out in this consultation paper.