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The Community Right to Buy (Abandoned, Neglected or Detrimental Land) (Eligible Land, Regulators and Restrictions on Transfers and Dealing) (Scotland) Regulations 2018

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Citation, commencement and interpretation

1.—(1) These Regulations may be cited as the Community Right to Buy (Abandoned, Neglected or Detrimental Land) (Eligible Land, Regulators and Restrictions on Transfers and Dealing) (Scotland) Regulations 2018 and come into force on 27th June 2018.

(2) In these Regulations, unless the context requires otherwise—

“the Act” means the Land Reform (Scotland) Act 2003;

“Part 3A community body” means a Part 3A community body within the meaning given in section 97D(1) of the Act (part 3A community bodies);

“restriction period” means the period during which specified persons are prohibited from transferring or otherwise dealing with land in respect of which a Part 3A community body has made an application under section 97G of the Act; and

“section 97G land” means land in respect of which an application has been made under section 97G of the Act (right to buy: application for consent) for consent to exercise a right to buy under Part 3A of the Act(1).

Eligible land

Matters Ministers must have regard to when determining whether land is eligible for the purposes of Part 3A of the Act

2.—(1) For the purposes of section 97C(4) of the Act (right to buy eligible land) matters that Ministers must have regard to are specified in paragraphs (2) and (3).

(2) In relation to section 97C(2)(a) of the Act and the question of whether land is wholly or mainly abandoned or neglected the matters are—

(a)matters relating to the physical condition of the land that are set out in regulation 3;

(b)matters relating to the designation or classification of the land that are set out in regulation 4; and

(c)matters relating to the use or management of the land that are set out in regulation 5.

(3) In relation to section 97C(2)(b) of the Act and the question of whether the use or management of the land is such that it results in or causes harm, directly or indirectly, to the environmental wellbeing of a relevant community, the matters are—

(a)matters relating to the use or management of the land that are set out in regulation 5; and

(b)matters relating to the effect on the relevant community that are set out in regulation 6.

Physical condition of land

3.—(1) The matters referred to in regulation 2(2)(a) are—

(a)the physical condition of the land and any building or other structure on the land;

(b)the length of time that the land, building or other structure have been in that condition;

(c)the extent, if any, to which the physical condition of the land or any building or other structure on the land—

(i)is a risk to public safety;

(ii)has, or is likely to have, a detrimental effect on adjacent land;

(iii)causes, or is likely to cause, environmental harm.

(2) In this regulation—

“environmental harm” has the meaning given in section 17(2) of the Regulatory Reform (Scotland) Act 2014 (meaning of expressions used in section 16 and schedule 2)(2).

Designation or classification of land

4.—(1) The matters referred to in regulation 2(2)(b) are—

(a)whether the land, or any part of the land, is or forms part of a nature reserve or conservation area;

(b)whether the land, or any part of the land, is a special site;

(c)whether any building or other structure on the land is a listed building or scheduled monument;

(d)any policies or proposals in a local development plan or associated guidance relevant to the land or any part of the land;

(e)any policies or proposals in a strategic development plan or associated guidance relevant to the land or any part of the land;

(f)any policies or proposals in the National Planning Framework 3 relevant to the land or any part of the land(3).

(2) In this regulation—

“conservation area” means an area designated as a conservation area under section 61 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 (designation of conservation areas)(4);

“listed building” has the meaning given in section 1(4) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 (listing of buildings of special architectural or historic interest)(5);

“local development plan” has the meaning given in section 15(1) of the Town and Country Planning (Scotland) Act 1997(6);

“nature reserve” has the meaning given in section 15 of the National Parks and Access to the Countryside Act 1949 (meaning of “nature reserve”)(7);

“scheduled monument” means a monument that is included in the schedule of listed monuments maintained by Historic Environment Scotland under section 1(1) of the Ancient Monuments and Archaeological Areas Act 1979 (schedule of monuments)(8);

“special site” means a site designated as a special site under section 78C of the Environmental Protection Act 1990 (identification and designation of special sites)(9); and

“strategic development plan” has the meaning given in section 7(1) of the Town and Country Planning (Scotland) Act 1997(10).

Use or management of land

5.  The matters referred to in regulation 2(2)(c) and (3)(a) are—

(a)how the land and any buildings and other structure on the land are currently used or managed including—

(i)the extent to which the land, buildings or other structure are used or managed for lawful public recreation or leisure activities;

(ii)the extent to which the land is being held for the purpose of preserving or conserving the natural, historic or built environment;

(b)whether the land or any building or other structure on the land is being used or managed for the purpose of an activity that requires a permit or licence;

(c)the length of time that the land, buildings and structures have, as the case may be—

(i)been used or managed as identified under paragraphs (a) and (b); or

(ii)not been used or managed for any discernible purpose.

Harm to environmental wellbeing of a relevant community

6.—(1) The matters referred to in regulation 2(3)(b) are—

(a)whether the use or management of the land or any building or other structure on the land has resulted in or caused, directly or indirectly, a statutory nuisance;

(b)whether the land or any building or other structure on the land is subject to—

(i)a current closure notice issued under section 26 of the 2004 Act (authorisation of closure notices); or

(ii)a current closure order made under section 29 of the 2004 Act (closure orders);

(c)whether the use or management of the land or any building or other structure on the land has resulted in a warning notice being issued under section 44 of the 2004 Act (warning notices).

(2) In this regulation—

“2004 Act” means the Antisocial Behaviour etc. (Scotland) Act 2004(11); and

“statutory nuisance” means a statutory nuisance within the meaning of section 79(1) of the Environmental Protection Act 1990 (statutory nuisances and inspections therefor)(12).

Occupancy or possession that constitutes tenancy

7.—(1) The descriptions and classes of occupancy or possession which are, or are to be treated as, a tenancy for the purposes of section 97C(5)(a) of the Act are—

(a)occupation or possession of tied accommodation;

(b)occupation or possession under a licence agreement that is in the nature of a tenancy;

(c)occupancy or possession of residential accommodation—

(i)in connection with an individual’s employment or education; and

(ii)in a building or structure that is owned or occupied by the employer or education provider;

(d)temporary occupancy or possession offered, on a night-by-night basis, to individuals who are homeless persons; and

(e)occupancy or possession by a liferenter.

(2) In this regulation—

“liferenter” means an individual who, by virtue of a liferent, has the right—

(a)

to receive for life the benefits of the property; and

(b)

to live in the building or structure, or on the land, for life; and

“tied accommodation” means accommodation provided to an individual by the individual’s employer under a service occupancy agreement (that is, in return or part return for the performance by the individual of services under the employment agreement).

Ineligible land: land pertaining to land occupied by individual’s home

8.  For the purposes of section 97C(5)(b) of the Act, eligible land does not include land pertaining to land of the type mentioned in section 97C(5)(a) of the Act if that land—

(a)forms the curtilage of the individual’s home; or

(b)is used for one or more of the following purposes:—

(i)the storage of possessions owned by the occupants of the individual’s home that are used for the maintenance, upkeep or subsistence of the individual’s home or its occupants;

(ii)to store vehicles that are used by the occupants of the individual’s home;

(iii)for drainage, water supply or provision of services such as media or electricity for the individual’s home;

(iv)to grow food which is principally for the subsistence of the occupants of the individual’s home;

(v)for activities including recreation and leisure activities which are incidental to the use of the individual’s home;

(vi)to keep pets belonging to the occupants of the individual’s home;

(vii)for businesses run by occupants of the individual’s home;

(viii)for access to the individual’s home, if the land is owned by the same person that owns the home.

Other ineligible land

9.—(1) For the purposes of section 97C(5)(f) of the Act, eligible land does not include land of the following descriptions or classes:—

(a)land that is held or used by a Minister of the Crown or government department (within the meaning of paragraph 3 of Part 1 of schedule 5 of the Scotland Act 1998)(13)); and

(b)land consisting of a right to petroleum, coal, gold or silver (whether or not owned separately from the land in respect of which it is exigible).

(2) In paragraph (1)(b)—

“coal” has the meaning given in section 65 of the Coal Industry Act 1994 (interpretation)(14) and, for the purposes of this regulation, references to coal include coal mines within the meaning given in that section; and

“petroleum” has the meaning given in section 1 of the Petroleum Act 1998 (meaning of “petroleum”)(15).

Regulators

Prescribed regulators

10.  For the purposes of section 97H(5) of the Act (criteria for consent), “regulator” means any person, body or office holder that has a regulatory function in respect of—

(a)the harm, direct or indirect, that is alleged to result from or be caused by the use or management of the land; or

(b)the activity, or lack of activity, that is alleged to result in or cause the harm.

Restrictions on dealings in section 97G land while application pending

Restriction period

11.—(1) Regulations 12 to 14 apply during the restriction period being the period that—

(a)begins on the date on which a pending application made under section 97G of the Act appears on the Register of Applications by Community Bodies to Buy Land; and

(b)ends on the end date as determined in accordance with paragraph (2) or (3) as the case may be.

(2) If the Part 3A community body is refused consent to exercise the right to buy land, the end date is the earlier of—

(a)the day after the expiry of the time period specified in 97V(6) of the Act (appeals) for lodging an appeal against the decision on an application under section 97G of the Act, but only if no appeal is lodged within the appeal period; or

(b)the day on which the sheriff issues a decision in an appeal under section 97V of the Act, but only if the outcome of the appeal is that the Part 3A community body is refused consent to exercise the right to buy land.

(3) If the Part 3A community body is given consent to exercise the right to buy the land, the end date is the earliest of—

(a)the expiry of the period specified in section 97P(1) of the Act (confirmation of intention to proceed with purchase and withdrawal), but only if the Part 3A community body did not, within that period, notify Ministers and the owner of the land of its intention to proceed to buy the land;

(b)the day on which the owner of the land receives a copy of the Ministers’ acknowledgement under section 97P(3) of the Act, but only if the matter acknowledged is the Part 3A community body’s withdrawal of—

(i)its application under section 97G of the Act; or

(ii)its confirmation under section 97P(1) of the Act that it intends to proceed to buy the land;

(c)the day on which the Part 3A community body’s application under section 97G in relation to the land is to be treated as withdrawn under section 97R(5) of the Act (completion of transfer);

(d)the day on which the consideration is paid in accordance with section 97R(2) or (3) of the Act provided that, on that day, the owner is able to effect the grant of a good and marketable title to the Part 3A community body; or

(e)the day on which, following the consignment of the consideration or estimate of what the consideration might be into the Lands Tribunal under section 97R(4) of the Act, the owner grants a good and marketable title to the Part 3A community body or the Part 3A community body gives notice to the Tribunal of its decision not to proceed to complete the transaction.

Certain dealings prohibited during restriction period

12.—(1) The following dealings are prohibited during the restriction period:—

(a)any transfer of section 97G land or land that includes any section 97G land;

(b)any action taken with a view to a transfer of land prohibited by sub-paragraph (a).

(2) For the purposes of paragraph (1)(b), action is taken with a view to a transfer of land when—

(a)the land is advertised or otherwise exposed for sale by or with the authority of the owner of the land or a creditor in a standard security with the right to sell the land;

(b)the owner or such a creditor, or a person acting on behalf of the owner or such a creditor, enters into negotiations with another with a view to the transfer of land; or

(c)the owner or such a creditor, or a person acting on behalf of the owner or such a creditor, proceeds further with any proposed transfer of the land which was initiated prior to the date on which the pending application appeared on the Register of Applications by Community Bodies to Buy Land.

(3) Paragraph (1) applies to any person who, but for the prohibition in paragraph (1), would be authorised to carry out a transaction or action referred to in that paragraph.

Exceptions to regulation 12

13.—(1) Subject to paragraph (2), regulation 12 does not prohibit the following dealings in section 97G land:—

(a)a transfer otherwise than for value;

(b)a transfer in implement or pursuance of an order of a court (other than an order under section 24 of the Conveyancing and Feudal Reform (Scotland) Act 1970(16) or a decree in an action for the division and sale of land);

(c)a transfer between spouses or civil partners in pursuance of an arrangement between them entered into at any time—

(i)after they have ceased living together; and

(ii)before Ministers have received the application under section 97G of the Act;

(d)a transfer between companies in the same group;

(e)a transfer to a statutory undertaker for the purpose of carrying on their undertaking;

(f)a transfer—

(i)implementing the compulsory acquisition of the land under an enactment;

(ii)by agreement, of land which could have been acquired compulsorily under an enactment;

(iii)implementing any right conferred by or under Part 2, 3 or 3A of the Act;

(iv)implementing missives for the sale and purchase of land, but only if, on the date that the missives were concluded, no application under section 97G of the Act was included in the register kept under section 52(1) of the Land Reform (Scotland) Act 2016 (register of applications by community bodies to buy land)(17);

(v)implementing an option to acquire land, but only if, on the date that the option was created, no application under section 97G of the Act was included in the register kept under section 52(1) of the Land Reform (Scotland) Act 2016;

(vi)vesting the land in a person for the purposes of any enactment relating to sequestration, bankruptcy, winding up or incapacity or to the purposes for which judicial factors may be appointed; or

(g)a transfer of land in consequence of—

(i)the assumption, resignation or death of one or more of the partners in a firm; or

(ii)the assumption, resignation or death of one or more of the trustees of a trust.

(2) The exceptions mentioned in paragraph (1)(a), (d) and (g), do not apply if—

(a)the transfer—

(i)is, or forms part of, a scheme or arrangement; or

(ii)is one of a series of transactions; and

(b)the main purpose or effect, or one of the main purposes or effects, of the scheme, arrangement or series of transactions is to avoid the requirements or consequences of regulation 12.

(3) In paragraph (1)(e), “statutory undertaker” is to be construed in accordance with section 214 of the Town and Country Planning (Scotland) Act 1997(meaning of statutory undertakers)(18).

Declaration required for transfers of section 97G land during restriction period

14.—(1) This regulation applies to any transfer of section 97G land during the restriction period, unless the transfer is to the Part 3A community body that made the application under section 97G of the Act.

(2) The transferor must incorporate in the deed giving effect to the transfer a declaration—

(a)specifying which exception under regulation 13(1) is being relied on to override the prohibition in regulation 12; and

(b)where the specified exception is an exception mentioned in regulation 13(1)(a), (d) or (g), stating that the exception is not negated by regulation 13(2).

Suspension of rights in and over land while transfer pending

Effect of right to buy on other rights

15.  Any right of pre-emption, redemption or reversion otherwise exercisable over section 97G land and any right or interest in section 97G land conferred under Part 2 of the Act is suspended for the duration of the restriction period as determined in accordance with regulation 11.

R CUNNINGHAM

A member of the Scottish Government

St Andrew’s House,

Edinburgh

20th June 2018

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