The Crofting Community Right to Buy (Procedure, Ballots and Forms) (Scotland) Regulations 2020

Scottish Statutory Instruments

2020 No. 451

Land Reform

The Crofting Community Right to Buy (Procedure, Ballots and Forms) (Scotland) Regulations 2020

Made

17th December 2020

Laid before the Scottish Parliament

21st December 2020

Coming into force

24th February 2021

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 73(5) and (11), 75(2), (4), (6), and (7), 82(1) and (2), 90(6) and 98(3) of the Land Reform (Scotland) Act 2003(1) and all other powers enabling them to do so.

PART 1 Introductory

Citation, commencement and interpretation

1.—(1) These Regulations may be cited as the Crofting Community Right to Buy (Procedure, Ballots and Forms) (Scotland) Regulations 2020 and come into force on 24 February 2021.

(2) In these Regulations, “the Act” means the Land Reform (Scotland) Act 2003(2).

PART 2 Applications under section 73(2) of the Act

Application for the consent of the Scottish Ministers

2.  An application by a crofting community body under section 73(2) of the Act for consent to buy eligible croft land, eligible additional land, eligible sporting interests or the interest of a tenant in tenanted land must—

(a) be made in the form of application specified in schedule 1, and

(b) include or be accompanied by information as specified in that form.

Specifications for maps, plans or other drawings relating to land or tenant’s interest

3.  A map, plan or other drawing that is referred to in schedule 1 must—

(a) be drawn to a metric scale corresponding to a scale used by the Ordnance Survey for that land,

(b) be taxative and not demonstrative only,

(c) show the compass orientation of north,

(d) contain map grid reference numbers and sufficient surrounding details (fences, houses etc.) to enable the position of the land to be fixed accurately,

(e) show the boundaries of the land, and

(f) where measurements are given, give those measurements to one decimal place.

Manner in which application for consent must be publicly notified

4.  The Ministers must give public notice of the application as required by section 73(10) of the Act by way of an advertisement in one or both of the following—

(a) a digital or paper edition of a newspaper circulating in the area where the community is located, or

(b) a publicly accessible webpage or website maintained by the Scottish Ministers for purposes which include making available for inspection any public notice of an application for consent under section 73(2) of the Act.

Notification of Ministers’ decision on application

5.  For the purposes of section 82(1) of the Act the form of written notice of Ministers’ decision on an application under section 73(2) of the Act is specified in schedule 2.

PART 3 Ballot for the purposes of sections 74 and 75 of the Act

Conduct of ballot

6.—(1) The ballot for the purposes of section 74 and 75 of the Act must be conducted—

(a) in a fair and reasonable manner, and

(b) as a secret postal ballot.

(2) The crofting community body must ascertain the persons eligible to vote in the ballot, those persons being members of the community as defined for the purposes of section 71(1)(a), (1A)(a) or (1B)(a) of the Act.

(3) The crofting community body must send, to each person eligible to vote, a ballot paper indicating—

(a) the question on which the vote is being taken,

(b) the date and time, being not less than 10 days after the date of posting of the ballot paper to the person, by which the ballot paper must be returned (“ballot deadline”), and

(c) the information specified in paragraph (4).

(4) The crofting community body must send to each person eligible to vote—

(a) a description of—

(i) the land that is subject to an application under section 73(2) of the Act,

(ii) the land to which a tenant’s interest that is subject to an application under section 73(2) of the Act relates, or

(iii) the land over which the sporting interests that are subject to an application under section 73(2) of the Act relate,

(b) details of any rights or interests in respect of any owner, creditor or third party and, where the ballot is in respect of the proposed purchase of a tenant’s interest, the tenant,

(c) a description of the crofting community body’s proposals for the land or, where the application is in respect of a tenant’s interest or sporting interests, the land to which the tenant’s interest or sporting interests relates, as the case may be,

(d) details of how further information may be obtained on the crofting community body’s proposals for the land, or where the application is in respect of a tenant’s interest or sporting interests, the land to which the tenant’s interest or sporting interests relates, as the case may be, and other matters relating to the ballot,

(e) the name of the crofting community body as it appears in the crofting community body’s memorandum and articles of association (or as adopted by a resolution of its members), constitution or registered rules, and

(f) the crofting community body’s contact details including a contact name, postal address, email address and telephone number.

(5) The crofting community body must provide each person eligible to vote with a stamped addressed envelope for returning the completed ballot paper.

Proxy votes

7.—(1) A person eligible to vote in the ballot may make a request to the crofting community body to be permitted a proxy vote.

(2) The request under paragraph (1) must be made in writing and must—

(a) state the name and address of the eligible voter,

(b) state the name and address of another person who is eligible to vote whom the eligible voter wishes to appoint as a proxy voter,

(c) be signed by the eligible voter who is appointing the proxy voter,

(d) contain a statement confirming that the eligible voter has consulted the proxy and that the proxy is capable and willing to act as a proxy voter, and

(e) be received by the crofting community body not later than 1700 hours on the day before the ballot deadline.

(3) The crofting community body must permit the proxy vote if the request is made in accordance with this regulation.

Observer of ballot result

8.—(1) Before sending the ballot papers in accordance with regulation 6(3), the crofting community body must appoint an observer to oversee, in person—

(a) the opening and counting of the votes made on the completed ballot papers, and

(b) the recording of the result.

(2) The observer must—

(a) be an individual who is independent of the crofting community body, and

(b) sign a declaration in the form specified in schedule 4 confirming that the person oversaw, in person, the opening and counting of the votes made on the completed ballot papers and the recording of the ballot result.

Ballot results

9.—(1) The crofting community body must, within the period of 14 days beginning on the date of the ballot deadline, publish the result of the ballot in the form and manner provided for in paragraphs (2) and (3).

(2) The result of the ballot must—

(a) be published in the form specified in schedule 3, and

(b) include or be accompanied by information where specified in that schedule.

(3) The result of the ballot must be published—

(a) in a digital or paper edition of a newspaper circulating in the area where the community is located, and

(b) on any publicly accessible webpage or website that is operated by or on behalf of the crofting community body, if such a webpage or website exists.

Form of return to the Scottish Ministers of the ballot result

10.  For the purposes of section 75(4) of the Act, a return to the Scottish Ministers notifying the matters mentioned in that section must be in the form specified in schedule 4.

Retention of ballot papers etc.

11.—(1) The crofting community body must retain the information specified in paragraph (2) for a period of 2 years after the ballot deadline.

(2) The information referred to in paragraph (1) is—

(a) evidence that regulation 6 was complied with, including a copy of all information provided to eligible voters in advance of the ballot in accordance with that regulation,

(b) all requests for a proxy vote under regulation 7,

(c) a record of the proxy votes permitted under regulation 7, and

(d) all completed and returned ballot papers.

PART 4 Application for reimbursement of ballot expenses

Application for reimbursement

12.—(1) A crofting community body may apply to the Ministers for reimbursement of the expense of conducting a ballot in accordance with section 75(6) of the Act.

(2) An application under paragraph (1) may only be made on or after the date that the associated application was made under section 73(2) of the Act and must be made no later than the date determined in accordance with paragraph (3) or (4).

(3) If the crofting community body is refused consent to exercise a right to buy under section 73 of the Act, the date is the earlier of—

(a) the day after the expiry of the time period specified in section 91(5) of the Act for lodging an appeal against the decision on an application under section 73 of the Act, if no appeal is lodged within that period,

(b) the day on which the sheriff issues a decision in an appeal under section 91(7) of the Act, that the crofting community body is not given consent to exercise the right to buy under section 73 of the Act.

(4) If the crofting community body is given consent to exercise a right to buy under section 73 of the Act, the date is the earliest of—

(a) the day on which the sheriff issues a decision in an appeal under section 91(1) of the Act, that the crofting community body is not given consent to exercise the right to buy under section 73 of the Act,

(b) the expiry of the period specified in section 85(1) of the Act, but only if the crofting community body did not, within that period, notify the Scottish Ministers and, as the case may be—

(i) the owner of the land,

(ii) where the application is to buy a tenant’s interest, the tenant, or

(iii) where the application is to buy sporting interests, the owner of the sporting interests,

of its intention to proceed to buy the land or the tenant’s interest or the sporting interests,

(c) the date of notice of withdrawal of the application under section 85(2)(a) of the Act,

(d) the date of notice of withdrawal of confirmation of intention to proceed under section 85(2)(b) of the Act,

(e) the date on which the crofting community body’s confirmation of intention to proceed made under section 85 of the Act is treated as withdrawn under section 87(5) of the Act, or

(f) the date on which the transfer is completed under section 87 of the Act.

Information to be included in application for reimbursement

13.—(1) An application under regulation 12 must include the following information—

(a) the name of the crofting community body, as it appears in the body’s memorandum and articles of association (or as adopted by a resolution of its members), constitution or registered rules,

(b) the crofting community body’s company number, charity number or registration number,

(c) the crofting community body’s contact details, including a contact name, postal address, email address and telephone number,

(d) the date on which the crofting community body made its application under section 73(2) of the Act,

(e) the ballot deadline,

(f) the question on which the vote was taken,

(g) details of the crofting community body’s bank account into which the amount of any reimbursement is to be paid, and

(h) a statement, in accordance with paragraph (2), setting out all costs that were incurred in conducting the ballot.

(2) For each cost the crofting community body must provide—

(a) the date on which the cost was incurred,

(b) a brief description of the goods or services to which the cost relates,

(c) evidence that the cost was incurred in conducting the ballot, and

(d) the date on which the goods or services to which the cost relates were provided.

(3) The crofting community body may include with its application any other information that it considers to be relevant.

Request for further information before making decision

14.—(1) Within the period of 30 days beginning on the date on which the Scottish Ministers receive an application under regulation 12, they may request from the crofting community body any further information that the Scottish Ministers consider to be necessary for the purpose of making a decision under regulation 15.

(2) No later than the expiry of the period of 7 days beginning on the date on which the crofting community body receives a request under paragraph (1), it must respond by—

(a) providing the requested information, or

(b) explaining why the information cannot be provided.

Decision of the Scottish Ministers on application for reimbursement

15.—(1) No later than the expiry of the period of 60 days beginning on the date on which the Scottish Ministers receive an application under regulation 12, they must—

(a) calculate the amount to be reimbursed, if any, by—

(i) calculating the claimed expense of conducting the ballot in accordance with paragraphs (2) and (3), and

(ii) subtracting from that amount any expense that they consider not to have been reasonably incurred in the conduct of the ballot,

(b) notify the crofting community body in writing of the amount calculated under sub-paragraph (a) and the reasons for any decisions made in the course of making that calculation, and

(c) pay to the crofting community body the amount calculated under sub-paragraph (a), if it is an amount greater than zero.

(2) When calculating the expense of conducting the ballot, the Scottish Ministers must disregard any cost, or part thereof, identified in the application that they consider to be—

(a) directly attributable to activities other than those specified in regulation 6, or

(b) incurred retrospectively.

(3) For the purpose of paragraph (2)(b), an expense is incurred retrospectively if it is incurred after the provision of the goods or services to which it relates, where those goods or services were originally provided on a no-cost basis.

Appeal against the Scottish Ministers’ decision under regulation 15

16.—(1) A crofting community body may appeal to the Lands Tribunal against a decision of the Scottish Ministers under regulation 15.

(2) An appeal under paragraph (1) must be lodged within the period of 28 days beginning on the date three days after the day on which the notice of the decision is sent to the crofting community body.

(3) The Lands Tribunal may, after making its own assessment in accordance with regulation 15 of the amount, if any, to be reimbursed, make an order requiring the Scottish Ministers to reimburse a specified amount of expense to the crofting community body.

(4) There is no right of appeal of a decision of the Lands Tribunal made under this regulation.

PART 5

Grant towards compensation liability

17.—(1) An application for a grant under section 90 of the Act must—

(a) be in the form specified in schedule 5, and

(b) include or be accompanied by information where specified in that schedule.

(2) An application for a grant under section 90 of the Act must be submitted to the Scottish Ministers within the period of 90 days beginning on—

(a) the date on which the crofting community body and the claimant agreed the amount of compensation payable, or

(b) the date on which the Land Court determined a question referred to it under section 89(5) of the Act as to the amount, if any, of compensation payable.

(3) The Scottish Ministers must—

(a) acknowledge receipt of an application for a grant made in accordance with paragraphs (1) and (2) within the period of 7 days beginning on the date that they receive it, and

(b) issue their decision on that application within the period of 28 days beginning on the date that they receive it.

PART 6 Revocations, savings and transitional provisions

18.  The following Scottish statutory instruments are revoked—

(a) the Crofting Community Body (Prescribed Form of Application and Notice) (Scotland) Regulations 2009(3),

(b) the Crofting Community Right to Buy (Grant Towards Compensation Liability) (Scotland) Regulations 2004(4),

(c) the Crofting Community Right to Buy (Ballot) (Scotland) Regulations 2004(5).

Saving provision

19.—(1) Where paragraph (2) applies, the provisions of the Scottish statutory instruments referred to in regulation 18 continue to have effect in respect of the relevant application on and after 1 December 2020 as they had effect immediately before that date.

(2) This paragraph applies where an application under section 73(2) of the Act has been received by the Scottish Ministers before 1 December 2020 and the Scottish Ministers have not made a decision on the application by that date.

(3) For the purposes of paragraph (2) a decision is taken to have been made when Scottish Ministers issue a notice under section 82 of the Act.

Transitional provision

20.—(1) Paragraph (3) applies in relation to an application made under section 73(2) where the conditions in paragraph (2) are met.

(2) The conditions are that—

(a) a ballot process in connection with an application has been conducted under section 75 of the Act in accordance with the Crofting Community Right to Buy (Ballot) (Scotland) Regulations 2004 within the period of six months immediately preceding 1 December 2020, and

(b) an application under section 73(2) of the Act in connection with that ballot process is made to the Scottish Ministers on or after 1 December 2020.

(3) Where this paragraph applies the ballot is to be treated as one conducted in accordance with Part 3 of these Regulations.

FERGUS EWING

A member of the Scottish Government

St Andrew’s House,

Edinburgh

17th December 2020

Regulations 2 and 3

SCHEDULE 1

Regulation 5

SCHEDULE 2

Regulations 6, 7 and 9

SCHEDULE 3

Regulations 8 and 10

SCHEDULE 4

Regulation 17

SCHEDULE 5

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations make provision in connection with the right of crofting communities to buy the land they occupy under Part 3 of the Land Reform (Scotland) Act 2003 (“the 2003 Act”). The Regulations implement the changes to the procedures brought in by the Community Empowerment (Scotland) Act 2015.

Part 2 of these Regulations concerns the procedure to be followed where a crofting community body wishes to apply to Ministers for a right to buy under section 73(2) of the 2003 Act.

Regulation 2 provides that the application must be in the form specified in schedule 1 and include or be accompanied by information where specified in that schedule.

Regulation 3 provides specification for maps, plans or other drawings submitted with the application specified in schedule 1.

Regulation 4 sets out the manner in which an application for a right to buy croft land must be publicly notified by the Scottish Ministers as required by section 73.

Regulation 5 specifies the means by which the Scottish Ministers’ decision must be notified in the form specified in schedule 2.

Part 3 of these Regulations concerns the ballot that must be held by the crofting community body in the six months preceding the submission of an application, as required by section 75 of the Act.

Regulation 6 provides that the ballot must be conducted in a fair and reasonable manner and as a secret postal ballot. It also requires a crofting community body to ascertain all eligible voters in the community and send them a ballot paper containing the question on which the vote is to be taken, notice of the ballot deadline, a stamped addressed envelope and certain other information about the crofting community body and its proposal.

Regulation 7 specifies that a person eligible to vote in the ballot may request to be permitted a proxy vote and sets out the requirements for making such a request. The crofting community body must permit a proxy vote to a person who makes a valid request.

Regulation 8 requires the crofting community body to appoint an observer to oversee the counting of the completed ballot papers and the recording of the result. The observer must be an individual who is independent of the crofting community body and must sign a declaration that the person observed the counting and recording of the votes. The declaration is contained in schedule 4.

Regulation 9 specifies the procedure for publication of the ballot result.

Regulation 10 provides that the Scottish Ministers must be notified of the ballot result as required by section 75(4)) of the 2003 Act in the form specified in schedule 4.

Regulation 11 requires that the crofting community body retains evidence –

• that, in the course of running the ballot, it complied with regulation 6,

• of all requests for a proxy vote and all proxy votes made under regulation 7, and

• of all completed and returned ballot papers,

for two years after the ballot deadline.

Part 4 of these Regulations concerns the process for application for reimbursement of the costs of running the ballot and the circumstances in which reimbursement will be made.

Regulation 12 provides that a crofting community body may apply for reimbursement of the expense of conducting a ballot and provides for the timescale for doing so depending on the circumstances.

Regulation 13 specifies the information that must be included in the crofting community body’s application for reimbursement of the expenses of conducting a ballot.

Regulation 14 provides that the Scottish Ministers may, within the period of 30 days after an application under regulation 12 is received, request further information from the crofting community body. The crofting community body then has 7 days in which to respond with the information requested or with an explanation as to why the additional information cannot be provided.

Regulation 15 provides that in the period of 60 days beginning on the date the application under regulation 12 is received, Ministers must calculate the amount, if any, to be reimbursed to the crofting community body. Only expenses that were incurred in the conduct of the ballot which are directly attributable to the activities specified in regulation 6 may be reimbursed and only provided they were not incurred retrospectively.

Regulation 16 provides that the crofting community body may appeal a decision on reimbursement to the Lands Tribunal and sets out the timescales for doing so and the steps the Lands Tribunal may take.

Part 5 of these Regulations concerns grant payments towards compensation due by the crofting community body. The circumstances in which compensation may be paid and the amounts of compensation due are set out in the Crofting Community Right to Buy (Compensation) (Scotland) Order 2004 (S.S.I. 2004/226).

Regulation 17 makes provision in connection with an application for a grant under section 90 of the 2003 Act.

Part 6 of these Regulations concerns revocations, savings and transitional provisions.

Regulation 18 revokes the Crofting Community Body (Prescribed Form of Application and Notice) (Scotland) Regulations 2009, the Crofting Community Right to Buy (Grant Towards Compensation Liability) (Scotland) Regulations 2004 and the Crofting Community Right to Buy (Ballot) (Scotland) Regulations 2004.

Regulation 19 provides that where an application is received by the Scottish Ministers before 1 December 2020 and a decision has not been made on the application by that date, the regulations referred to in regulation 18 continue to apply.

Regulation 20 provides that where a crofting community body has carried out a ballot of the community in terms of the Crofting Community Right to Buy (Ballot) (Scotland) Regulations 2004 in the six months immediately preceding 1 December 2020 and a connected application is made under section 73(2) on or after that date, the ballot carried out under those regulations will be treated as one carried out under regulations 6 to 10.

(1)

2003 asp 2. Section 73(5) was amended by the Crofting Reform etc. (Scotland) Act 2007 (2007 asp 7) (“the 2007 Act”), schedule 1, paragraph 5(3) and the Community Empowerment (Scotland) Act 2015 (2015 asp 6) (“the 2015 Act”), section 64(2). Section 75(6) and (7) was added by the 2015 Act, section 66 (3). Section 82(2) was amended by the 2003 Act, schedule 1, paragraph 5(8). Section 98(1) of the Land Reform (Scotland) Act 2003 contains definitions of ‘Ministers’ and ‘prescribed’ relevant to the exercise of the statutory powers under which these Regulations are made.

(2)

2003 asp 2.

(3)

S.S.I. 2009/160.

(4)

S.S.I. 2004/225.

(5)

S.S.I. 2004/227.