Community right to buy: the new scope

From 27 June 2018, communities have a new power to buy land that is either abandoned or neglected, or is detrimental to the environmental wellbeing of the community, even if the owner of the land is unwilling to sell. The principal purpose of these arrangements, for the Government, is to bring land back into productive use, so any current, or future proposed use of the land by the owner will have a bearing on the process.

The community right to buy abandoned, neglected or detrimental land under part 3A of the Land Reform (Scotland) Act 2003, inserted by part 4 of the Community Empowerment (Scotland) Act 2015, differs from the traditional community right to buy, in that it is a right to purchase land that is triggered immediately, without the community having to wait for the owner to put the land on the market. The community body must make an application to Scottish Ministers, and if they consent, Ministers will appoint a valuer to assess the value of the land, and the price to be paid by the community body will be based on market value.

Pre-application steps

There are certain steps that the community must take, however, before it applies to Scottish Ministers for consent to buy the land:

• it must form a community body for the purpose of taking title to the land; the body must have a minimum of 10 members, at least three-quarters of whom are members of the community;
• the community body must have tried, and failed to buy the land direct from the owner, before they can apply to Scottish Ministers to exercise the right;
• the community must be balloted not more than six months before the applications, at least half of the members of the community vote in that ballot and a majority of those voting vote in favour of buying the land; and
• if the land is environmentally detrimental, the community must ask the relevant regulator (for example SEPA) to take action to remedy or mitigate the harm, and must also show that the harm is unlikely to be removed if the owner remains the owner of the land.

Land that is eligible for the right to buy

Most types of land and buildings are eligible for acquisition under this right (provided they meet the criteria), but the right cannot be exercised in respect of an individual's home, including garden ground and land used for storage, parking, drainage, access, growing food, leisure and recreation, or keeping pets in connection with that home, or land used for businesses run by the occupants of the home. This does not however include a home that is tenanted as tied accommodation, or tenanted in connection with the individual's employment or education, from his employer or education provider, or one that is occupied under a licence, or by a homeless person, or by a liferenter.

The right to buy will not apply to land held by a Minister of the Crown, or a government department, nor will it affect land which consists of a right to petroleum, coal, gold or silver.

Notification of application

To exercise the right, the community body must apply to Scottish Ministers for consent. At the same time as it applies, the community body must send a copy of the application and all accompanying information to the owner, and to any creditor who holds a standard security over the land. If that creditor has instituted any enforcement proceedings in relation to that standard security, they must provide any views or comments on the application to Scottish Ministers. The owner, creditor, any tenant and any other appropriate person are then asked by Scottish Ministers to submit views on the application within 60 days. Public notice also has to be given of the application.

Criteria for application to be considered

For the right to buy application to be considered by Scottish Ministers, the community body must:

• demonstrate that its proposals for the land are:
- in the public interest; and
- compatible with furthering the achievement of sustainable development;

• provide reasons why it considers the land is:
- wholly or mainly abandoned or neglected, or
- being used in a way that results in or causes environmental harm;

• give details of its proposed use, development and management of the land; and
• where appropriate, provide information about any request made to a relevant regulator.

Prohibition on transferring the land

Once a community body's application appears on the Register of Applications by Community Bodies to Buy Land (a new register set up for this purpose), the owner of the land is prohibited from transferring the land in question and from taking any action with a view to transfer of the land, such as advertising it for sale, or entering into negotiations with another buyer. Any sale negotiations that are already underway must stop, unless missives have already been concluded.

Exceptions to the prohibition include transfers:

• by way of gift;
• in implement of a court order (with exceptions);
• between spouses or civil partners in implement of an agreement entered into before the application was made;
• between group companies;
• to a statutory undertaker for the purposes of their undertaking;
• under compulsory purchase powers;
• under another community right to buy;
• in implement of missives concluded, or an option to acquire created, before the application appeared on the register;
• on assumption, death or resignation of a partner in a firm or a trustee under a trust, or
• vesting in a person for the purposes of sequestration, bankruptcy, winding up or incapacity, or as judicial factor.

Where one of the exceptions applies, the disposition transferring the land to the purchaser must contain a declaration to the effect that the transfer falls into one of these exempt categories, and identify which one applies.

What is abandoned or neglected land?

Regulations – the Community Right to Buy (Abandoned, Neglected or Detrimental Land) (Eligible Land, Regulators and Restrictions on Transfers and Dealing) (Scotland) Regulations 2018 (SSI 2018/201) – set out in more detail the criteria which Scottish Ministers are to apply in considering applications. There are broadly three heads under which eligibility of the land is considered:

• physical condition;
• the designation or classification of the land; and
• the use or management of the land.

Physical condition

This relates to the actual condition of the land or any structure on it, and the length of time the land or structure has been in that condition. Scottish Ministers also need to consider whether the land or any building on it is a risk to public safety, has or is likely to have a detrimental effect on adjacent land, or causes or is likely to cause environmental harm, i.e. harm to the health of human beings or other living organisms; harm to the quality of the environment, including (i) harm to the quality of the environment taken as a whole, (ii) harm to the quality of air, water or land, and (iii) other impairment of, or interference with, ecosystems; offence to the senses of human beings; damage to property, or impairment of, or interference with, amenities or other legitimate uses of the environment.

Designation or classification

When assessing the designation or classification of the land in relation to whether it is abandoned or neglected, Scottish Ministers are to 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.

Use or management

In looking at whether the land is abandoned or neglected, Scottish Ministers must have regard to how the land or buildings on the land are currently used or managed. This can include 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. How long it has been used for these purposes should also be considered, or, if it is not being 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. 

Land causing harm to environmental wellbeing

The third category of the right to buy applies to “detrimental” land.

Scottish Ministers have to look at the use or management criteria set out above, and whether such use or management of the land or any structure has resulted in a statutory nuisance under the Environmental Protection Act 1990. If the land is subject to a closure notice prohibiting access to premises, or a closure order following on a closure notice, or warning notice relating to excessive noise (all under the Antisocial Behaviour etc (Scotland) Act 2004), this must also be taken into account.

How will these criteria be applied?

While the regulations provide some clarification as to the criteria that Scottish Ministers will look at when considering an application by a community body, the definitions are still wide and rather vague. It will be a matter of degree in each case whether the state of abandonment or neglect or the extent of environmental harm is sufficient for the Scottish Ministers to consent to the application.

At the extreme ends of the scale, the position will usually be clear: land or buildings that are used and occupied and being put to productive use, will not fall within the criteria for abandoned or neglected land, although it is possible that in some cases they may be causing environmental harm.

Statutory nuisance under the Environmental Protection Act includes:

• any premises that are in a state that is prejudicial to health or a nuisance;
• smoke, fumes or gases emitted from premises so as to be prejudicial to health or a nuisance;
• any dust, steam, smell or other effluvia arising on industrial, trade or business premises, or any accumulation or deposit which is prejudicial to health or a nuisance;
• any water covering land or land covered with water which in a state that is prejudicial to health or a nuisance;
• any animal kept in such a place or manner, or any insects emanating from premises which is or are prejudicial to health or a nuisance;
• noise emitted from premises, or artificial light emitted from premises or any stationary object, so as to be prejudicial to health or a nuisance;
• noise that is prejudicial to health or a nuisance and is emitted from or caused by a vehicle, machinery or equipment in a street or road.

So, any of these type of activities from premises are likely to come under consideration.

While it may be thought that any land that is lying vacant may be susceptible to community interest, it should be remembered that the owner will have plenty of opportunity to make representations in connection with any application: land may be vacant (i.e. not occupied; empty) for perfectly legitimate reasons – the owner may be trying to obtain planning permission for development, or actively engaged in conservation of local flora or fauna, for example – such attempts or uses should be comparatively easy to establish. Land that is abandoned (having been deserted or left) or neglected (suffering a lack of proper care; not receiving proper attention), on the other hand, is, some would say, fair game for a local community who can demonstrate a sustainable use for it, for the future. In the final analysis, it will be up to Scottish Ministers to assess the terms of the community's application, and its intentions for the land, against the status quo, or future intentions of the owner. Either side has a right of appeal against the Ministers' decision.