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Publication - Guidance

Community Empowerment (Scotland) Act 2015: community transfer bodies' guidance

Published: 23 Jan 2017
Part of:
Communities and third sector
ISBN:
9781786527509

A step-by-step guide for community bodies on asset transfer as part of the Community Empowerment (Scotland) Act 2015.

102 page PDF

895.6kB

102 page PDF

895.6kB

Contents
Community Empowerment (Scotland) Act 2015: community transfer bodies' guidance
8. How to make an Asset Transfer Request

102 page PDF

895.6kB

8. How to make an Asset Transfer Request

8.1. Before you make an asset transfer request, please make sure you have read the advice on "Getting Started" in chapter 3 and on Finding Suitable Assets in chapter 7, and have made sure your organisation is eligible, as explained in chapter 5. Whatever your plans are, you are strongly advised to contact the relevant authority and discuss your proposals with them before making the formal request. Some authorities may have a pre-application process in which they will consider outline proposals and, if approved, will support you to develop your detailed request. These approaches are often helpful, but you are not legally required to go through any such process before making an asset transfer request.

8.2. The authority may offer to agree a lease or other arrangements with you without going through asset transfer. You can also make a bid in the normal way for any property which is advertised for sale or lease. However, please be aware that you will not have the protection of the asset transfer legislation, including the right to a review or appeal, unless you make a formal asset transfer request.

8.3. The legislation requires certain information to be included in an asset transfer request. This is set out in section 79(4) of the Act and regulation 3 of the Asset Transfer Requests (Procedure) (Scotland) Regulations 2016 ("the Procedure Regulations).. In terms of regulation 5 of the Procedure Regulations, an asset transfer request is not treated as having been made until all the required information is received by the relevant authority. This chapter lists what is required and gives guidance on what you should consider including under different headings. The next chapter explains what will happen after you submit your request.

8.4. For points (k) to (o) below, covering information on areas such as the benefits of the request and how it is to be funded, only outline information is required for a request to be accepted as complete. The relevant authority may seek further detail from you during the process, and the community transfer body may provide additional information, in particular in response to any representations made about the request. The relevant authority may decide to refuse the request if it does not feel it has sufficient information on the proposals, but the level of detail required should be proportionate to the scale and nature of the request. The relevant authority should always give the community transfer body the opportunity to provide any missing information which the relevant authority considers is key to the decision.

8.5. A standard form for an asset transfer request is provided on the Scottish Government website. This is intended to help you make sure you provide all the information needed for a valid request, and can be used to make a request to any relevant authority. Individual relevant authorities may also provide their own forms in their own style, which may ask for additional information they find helpful in assessing requests. You do not need to use any particular form to make an asset transfer request, but you must provide all the required information.

Requests from other community transfer bodies

8.6. If there is more than one community transfer body interested in the same land, you should try to work together to agree a single request. However, sometimes that is not practical. A community transfer body can put in an asset transfer request for any land, at any time, even if there is already a request in place from another body. You do not have to wait until an earlier request has been completed before submitting yours. All requests must be processed in accordance with the timescales in the legislation.

8.7. If the relevant authority is talking to a number of community transfer bodies about the same land, they may ask them to submit requests at the same time. This could allow all the requests to be compared together on an equal basis, rather than just in the order they arrive. But the relevant authority cannot refuse to consider a request just because it arrives after the "closing date".

An asset transfer request must be made in writing and must:

A state that it is an asset transfer request made under Part 5 of the Community Empowerment (Scotland) Act 2015

B contain the name and contact address of the community transfer body

C be accompanied by a copy of the constitution of the community transfer body

D if the request is made by a body which is not a community controlled body, explain the basis on which the body is a community transfer body

E specify the land to which the request relates

F specify whether the request falls within paragraph (a), (b)(i) or (b)(ii) of section 79(2), ie whether it is a request for ownership, lease or other rights in the land

G if the request is for ownership, specify the price that the community transfer body would be prepared to pay for the transfer of ownership of the land

H if the request is for lease, specify

  • the amount of rent that the community transfer body would be prepared to pay,
  • the duration of the lease, and
  • any other terms and conditions that the community transfer body considers should be included in any lease

I if the request is for other rights, specify the nature and extent of the rights sought

J specify any other terms or conditions applicable to the request

K specify the reasons for making the request

L describe how the community transfer body proposes that the land is to be used

M specify the benefits which the community transfer body considers will arise if the authority were to agree to the request

N outline how it is proposed that-

  • the transfer of ownership of the land, the lease of the land or the conferral of other rights in respect of the land on the community transfer body (as the case may be); and
  • the proposed use of the land,

are to be funded

O describe the level and nature of support for the request from the community to which the community transfer body relates.

Guidance on the requirements for making an asset transfer request

A state that it is an asset transfer request made under Part 5 of the Community Empowerment (Scotland) Act 2015

8.5. This is included to make clear that the community transfer body intends to make an asset transfer request, even if it does not include all the required information.

B Name and contact address of the community transfer body

C Copy of constitution

D How the body is a community transfer body

8.6. The name and contact address of the community transfer body are required. You may want to give an email address and exchange correspondence by email, but you must give a postal address as well. It can also be helpful to give a daytime phone number.

8.7. The form states that by providing an email address you agree that the relevant authority can send any correspondence relating to the request to that address. Under regulation 12 of the Procedure Regulations you are also deemed to give consent if you send any material by email (please ensure that the form is sent from the same email address that you have entered on the form).You can ask the relevant authority to stop sending correspondence by email, or change the email address to which correspondence should be sent, by telling them at any time. You must give them 5 working days' notice.

8.8. You must attach a copy of your organisation's constitution, articles of association or registered rules, so that the relevant authority can check the organisation is eligible to make an asset transfer request, and to make a request for ownership if appropriate (see paragraph 5.16.). It is helpful to provide the company number, charity number or registered number so that the authority can check the organisation's registration.

8.9. If the organisation does not qualify as a community controlled body but has been designated as a community transfer body, or is one of a class of bodies which have been designated as community transfer bodies, you must explain this. It will be helpful to refer to the relevant designation order.

E The land to which the request relates

8.10. It is essential to accurately identify the land you are requesting.

8.11. If you have identified the land on the relevant authority's register of land, you should copy the details listed there.

8.12. If you have not found the land on the relevant authority's register you should give the name by which the land or building is known, the street address (including postcode) if there is one, or a grid reference. It may be helpful to provide one or more maps or drawings showing the boundaries of the land requested.

8.13. Maps or drawings may not be necessary if the location and boundaries of the land you are requesting are clear from the description. If you are making a request for an area or rural land or for only part of a piece of land, you will probably need to provide a map or drawing and detailed description of the boundaries of the area to which your request relates. If you are requesting one building on a site, you need to identify that building and the boundaries of any land you want around it. If you want to lease or occupy part of a building you may be able to identify that part by description, such as "the first floor" or "the Mackenzie Hall", or you may need to provide a drawing to make clear the area you mean. Remember to include any use of store rooms, kitchens, parking etc.

8.14. If you discuss your proposals with the relevant authority before making the request they may be able to help you by providing copies of existing maps or directing you to sources of mapping information, or by explaining the level of detail they require.

F, G, H, I, J Type of request, payment and conditions

8.15. You must state clearly whether your request is for:

  • ownership (under section 79(2)(a))
  • lease (under section 79(2)(b)(i)), or
  • other rights (section 79(2)(b)(ii))

Request for ownership

8.16. For ownership, you must state the price that you are prepared to pay for the land. Please see chapter 11 for guidance on deciding how much to offer.

Request for lease

8.17. For lease, you must state

  • the amount of rent you are prepared to pay
  • the duration of the lease
  • any other terms and conditions you want to be included in the lease.

8.18. Leases can cover a variety of arrangements, from a few months' use of an office or piece of land to several decades with full responsibility for maintaining the property. You should consider obtaining professional advice to help you with the terms and conditions that should be included, especially if you are seeking a lease for several years or if you will be responsible for any repairs and maintenance. In addition to the information provided elsewhere in the request, the terms and conditions should cover how the rent can be reviewed, the repairing and insuring responsibilities of each party, arrangements for any subletting, and any option to purchase at a future date.

8.19. The guidance in chapter 11 can help you decide how much rent you should offer.

Request for other rights

8.20. If you are requesting other rights, such as access, a management agreement or a licence to occupy, you must set out clearly the nature and extent of the rights you want. Some of this will be about the form of the agreement, and some will be about what activities you have the right to carry out.

Other terms or conditions

8.21. You should include in your request any other terms and conditions that are necessary to make a success of your project, so that these are clear to the relevant authority from the start(section 79(2)(h). For ownership, this is likely to include key terms which you want to be included in the contract, in addition to the information included elsewhere in the request on the extent of the land, price and proposed use. You do not need to complete this section if you do not wish to include any additional terms and conditions, and it is not required for a request to be accepted as complete.

K Reasons for making the request

L Proposed use of the land

8.22. You should explain the reasons behind your project and why this land or building is necessary or particularly suitable for it. This section should also set out what you plan to do there: what will the land or building be used as and what activities will take place there? If you are requesting ownership or a substantial lease, do you plan to make any physical changes to the land, redevelop any buildings or create new ones?

M Benefits of the proposals

8.23. This is one of the most important sections of the request. It is your opportunity to explain the good things your project will make happen in your community, which are key to the relevant authority's decision. Chapter 10 explains more about how the relevant authority makes its decision and what matters it has to take into account.

8.24. The relevant authority should consider your proposals in detail, and ideally will discuss them with you, either before or after you submit the request. However, it is always helpful to set out the benefits clearly, along the lines of the issues which the authority is required to consider in making its decision. Think about referring to the outcomes you will achieve, as well as the activities you will deliver. An outcome is what you want to achieve in the long term, such as increasing healthy eating or reducing loneliness for older people. These outcomes might be achieved by activities like cookery classes, community gardening or a lunch club.

8.25. The legislation sets out a list of matters that the relevant authority must consider in reaching its decision on a request. You do not need to show that your project will deliver benefits in all these areas; rather, they are intended to be inclusive so that whatever you do will fit into one or other of these categories. Authorities must also consider "any other benefits that might arise", so everything is covered.

8.26. The amount of detail you need to give will depend on the scale of the project and the amount of support or reduction in market value you are seeking. The relevant authority needs to understand how agreeing to your request will benefit the community, but you should keep it brief and clear so they can easily pick out the important points. It is helpful to give numbers such as how many people are expected to take part in activities or whether your project will create employment.

8.27. Authorities must consider whether agreeing to the request would be likely to:-

  • promote or improve:
  • o Economic development - this could cover creating new job opportunities or training opportunities, bringing more custom to existing businesses, supporting new businesses, etc
  • o Regeneration - this is about making your area a better place to live and work, for example providing new housing, bringing empty buildings or unused land back into use, increasing access to services and social and leisure facilities, improving transport, etc
  • o Public health - a wide range of activities can help people lead healthier lives and support people living with long-term conditions or mental health issues, as well as direct provision of care services or improving access to healthcare.
  • o Social wellbeing - this covers all sorts of activities that bring people together, creating a stronger community spirit, supporting learning, cultural activities, reducing crime, etc
  • o Environmental wellbeing - this could include activities to improve the natural environment both locally and more widely, ranging from creating a community garden or managing local woodland to recycling or renewable energy projects.
  • reduce inequalities of outcome which result from socio-economic disadvantage -this refers to tackling poverty and the other issues that often come with it, such as health problems, low quality housing and lack of access to services and employment. If your project will particularly help people on low incomes or address these kinds of issues, you should highlight it.

8.28. Authorities must also make the decision "in a manner which encourages equal opportunities" and meets their responsibilities under Equality legislation. They will therefore take into account any activities designed to support people who may be disadvantaged on the basis of age, disability, gender, gender identity/reassignment, race, religion or sexual orientation. For example, providing facilities for disabled people, improving relationships between communities from different ethnic backgrounds or religions, providing services for LGBT+ people, helping parents and carers to take part in community activities.

Other information you may want to include

8.29. The relevant authority will need to consider any negative consequences that might result from your proposals, as well as the benefits. When you are developing your proposals you should consider any potential drawbacks affecting particular groups of people, the local economy or the environment. You should identify these in your request and show how you plan to reduce them. If you discuss your proposals with the relevant authority before making your request, they will be able to advise you of any potential negative impacts they are aware of, and discuss options for addressing them.

8.30. If there are any restrictions on the use or development of the land, you should show that you understand these and explain how your proposals will comply with them. For example, if your project includes making changes to a listed building, you should show that you have taken account of the relevant requirements (and associated costs) in drawing up your plans. Other types of restrictions might include environmental designations such as a Site of Special Scientific Interest, controls on contaminated land, or planning restrictions.

8.31. The relevant authority will want to be confident that your organisation has the ability to actually deliver the benefits you promise. It is helpful to include information to show how you will do this. This might cover the skills and experience of members of the organisation, any track record you have of running similar projects in the past, whether you plan to use professional advisers, and how you will encourage new people to join and keep the project going in the long term. It is also helpful to demonstrate that your organisation has governance arrangements appropriate to the scale of the project, including key roles and responsibilities, managing project finance and reporting on what your project has achieved.

N Funding

8.32. You must outline how you propose to fund the price or rent you are prepared to pay for the land, and your proposed use of the land, including any development costs, ongoing maintenance and the costs of your activities.

8.33. In some cases this will be very straightforward, for example if your rent and incidental expenses are covered by the fees paid by members, or by volunteering, donations and fundraising. You may need to demonstrate that it is realistic to expect fundraising to cover the amount needed.

8.34. For large projects, especially where you are planning significant redevelopment or taking on a property with high maintenance costs, you will need to provide more detail. You may find it helpful to put it in the form of a business case, which may be required by funders as well. You should show your calculations of all the costs associated with the transfer of the land and building and your future use of it, covering running costs, maintenance, insurance, staff, equipment etc, as well as any alterations, renovation or new building, and show how you expect to cover those costs. This may be through grants, loans, fees for activities, income from commercial operations, and so on. If you intend to apply for grants or loans you should demonstrate that your proposals are eligible for the relevant scheme, according to the guidance available for applicants. You do not have to have funding in place when you make a request, but you should have a clear idea of where you expect to get it. Most funding bodies will be happy to discuss your proposals with you before you submit a request.

O Community support

8.35. You must describe the support you have for your request within the community which your organisation represents ie the community defined in the community transfer body's constitution. Depending on the nature of the community, some community bodies include a large proportion of the members of that community, but many are made up of a relatively small core of enthusiastic people within a much larger community. The relevant authority will want to know that you have engaged with the community as a whole, and that the proposals have broad support.

8.36. You should start by explaining who your community is, the total number of people in the community, and how many of them are members of your organisation. If you represent a community of interest, you might only be able to estimate the total size of the community outside your organisation, but you should provide as much information as you can, for example from the census, other surveys or information from national representative bodies.

8.37. To demonstrate the support for your proposals, you can use the results from whatever activity you have carried out to find out people's views. You should give the date of the activity, say how many people took part and how many supported the proposals. If different options were considered, you should show the results for all options.

8.38. Ways of finding out people's views might include:

  • a vote taken at a public meeting
  • a community survey
  • results of a community action planning process or charette
  • results of a community budgeting process.

The National Standards for Community Engagement [2] can help you to make sure that your engagement is effective and includes all groups of people within your community. You may carry out a full community ballot if you wish, but it is not required. You will not be able to access the assistance from the Scottish Government that is available for community right to buy applications, where a ballot is compulsory.

8.39. As well as support from the community which your organisation represents, you may want to refer to support from other communities. This is particularly important if you are a community of interest; you should engage with local people in the area around the property your request relates to, and other communities that may be affected by your proposals. Similarly if you are a geographic community and plan to deliver services or activities that will benefit people from a particular group, you may have support from that community of interest. You may also refer to support from organisations such as a sport governing body or national umbrella body for your type of organisation.

8.40. Not every community that may be affected by your proposals may agree with them, and there are often differences of opinion within communities as well. Relevant authorities will not expect unanimous support for a proposal, but they are unlikely to agree to a request if there is substantial opposition from other groups. If concerns are raised during your engagement with your community and others, you should try to address them and show how you have done this. If you are aware of other community bodies who are interested in the same property, you should try to work together and see if it is possible to agree a single request.

Signatures

8.41. The standard application form requires two signatures from officers of the community transfer body, with their full names and addresses. This is not a requirement of the asset transfer legislation, but will be required by all relevant authorities before they can agree to the request, under regulations to prevent fraud.

Procedure following receipt of an asset transfer request

Procedure following receipt of an asset transfer request


Contact

Email: Jean Waddie