The Land Reform (Scotland) Act 2003 introduced the community right to buy, allowing communities throughout Scotland to register an interest in an area of land (including buildings) and subsequently giving them a pre-emptive right to buy should the owner wish to sell. Initially, this applied only to rural communities but was later extended to cover the whole of Scotland.
In 2015 the Community Empowerment (Scotland) Act went further, by introducing a way in which community bodies can apply to the Scottish Ministers to buy land which is abandoned, neglected or detrimental to the environmental wellbeing of a community. This differs from the original right to buy in a number of ways, in particular it gives the community an absolute right to buy land, even if the owner does not wish to sell.
Prior to making an application to the Ministers, the appropriate community body must have attempted to buy the land from the owner and also, if relevant, to remedy any environmental harm by contacting the relevant regulator to request action. They must also identify the land and interests they seek to acquire, the purposes for which they propose to use the land and the resources they need to acquire that land and interests.
However, the initial difficulty with the community right to buy abandoned, neglected and detrimental land was that there was no definition as to what this could apply to. In 2018, the Scottish Ministers published The Community Right to Buy (Abandoned, Neglected or Detrimental Land) (Scotland) Regulations which sets out the matters which Ministers must have regard to when considering whether land falls within this phrase and is therefore eligible. These include the physical condition of the land, any special designation or classification such as the land being a conservation area or nature reserve and the use or management of the land.
The first two applications to buy abandoned, neglected or detrimental land were registered with Scottish Ministers in December 2019 and are currently being considered. Both relate to small areas of woodland within Helensburgh and full details can be viewed online at https://roacbl.ros.gov.uk/.
It will be interesting to follow this application in order to understand better how the Scottish Ministers are going to interpret the legislation and regulations. It is hoped this will bring some clarity for the future, but it may be another 4 months before the outcome is known.
In the meantime, the effect of the application is that the Scottish Ministers have 180 days within which to make a decision on the application, having taken into account the views of the owner and other interested parties. During this period, owner is prohibited from selling or transferring the land.
If the Ministers reject the application, the application is treated as though it had never been registered. If however the application is accepted, the Ministers must appoint a valuer to assess the market value of the land. The owner can input in to the valuation exercise. The valuer has 8 weeks to carry out the valuation exercise, but this may be extended by Ministers on request by the valuer.
After the value has been fixed, the community body has 21 days to confirm to the Ministers and the landowner if they are proceeding with their right to buy. They are under no obligation to proceed. However, the owner may appeal the value to the Lands Tribunal.
Assuming the community body does proceed with their right to buy, they must pay for the land within 6 months of the Ministers consenting to the application. This period may be extended in certain circumstances.
In summary, the effect of a community wishing to buy abandoned, neglected or detrimental land could be that the owner is prevented from selling their land for approximately 6 months and may then have to wait a further 6 months before the community body completes their purchase, assuming always that the value is accepted and they can raise the required funds.
Kenneth Mackay is a Partner in our specialist Land & Rural Business team. If you require advice on community rights to buy and the Land Reform (Scotland) Act please contact a member of the Land & Rural Business team for more information.
