Guidance has recently been produced by the Scottish Government in relation to the community right to buy abandoned, neglected or detrimental land. This guidance relates to Part 3A of the Land Reform (Scotland) Act 2003 (as amended by the Community Empowerment (Scotland) Act 2015) and applies to all applications for consent to buy land received by the Scottish Ministers on or after 27 June 2018.
The guidance published, deals with all aspects of the purchase of land, from the initial identification of land to the completion of the purchase. It provides a step by step guide setting out the considerations that need to be taken into account, along with the legal requirements that must be met and the various decision making stages. Although primarily intended to assist community bodies, it also provides useful information for land owners and heritable creditors of affected land.
Where a community body identifies land which they believe to be “wholly or mainly abandoned or neglected” or the condition of which results in harm to the “environmental wellbeing” of the community, they can apply to the Scottish Ministers for consent to exercise the right to buy the land. Community bodies can make an application to the Scottish Ministers for their consent to exercise the right to buy even if the land owner is not seeking to sell the land or is unwilling to do so. The community body can therefore, subject to Scottish Minister consent, essentially acquire the land by compulsory purchase.
Before an application for consent to buy the land is submitted, the community body must first make an attempt to buy the land from its current owner, on the basis that completing the sale/purchase of the land by an agreed contract is the best way to resolve matters to the satisfaction of all parties. If the community is concerned that there will be adverse environmental impact to the community without appropriate intervention, the community body must first approach the relevant regulatory body (for example, SEPA) and ask them to take action to regulate the environmental issues.
If the community body is unsuccessful in either purchasing the land from its current owner or in remedying matters through the intervention of a regulator, then under Part 3A of the 2003 Act the community body may apply for consent to exercise a right to buy. If an application for consent is granted by the Scottish Ministers, the land owner must sell that land to the community body.
Should a land owner have entered into an enforceable contract to sell the land to a third party (including for example a concluded missive or agreement for sale/purchase of the land or an option agreement) prior to the community body making its application to exercise the right to buy, the application will not be considered. Conversely, if the contract to sell to another party was put in place after a valid application by the community body, then that contract will be deemed to have no effect.
The Guidance also provides useful information for land owners in relation to the valuation of the land and the process for appealing against that valuation, as well as the procedures for applying for compensation and the reimbursement of costs incurred in connection with the right to buy application, which can be recovered either from the community body or the Scottish Ministers directly.
For further information and advice on any aspect of the right to buy legislation, please contact a member of the Land and Rural Business team.
