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Publication - Guidance

Community Empowerment (Scotland) Act 2015: asset transfer guidance for authorities

Published: 23 Jan 2017
Part of:
Communities and third sector
ISBN:
9781786527493

A step-by-step guide for relevant authorities on the requirements for dealing with asset transfer requests.

96 page PDF

857.6kB

96 page PDF

857.6kB

Contents
Community Empowerment (Scotland) Act 2015: asset transfer guidance for authorities
9. Procedure following receipt of an asset transfer request

96 page PDF

857.6kB

9. Procedure following receipt of an asset transfer request

9.1. When you receive a request, the first thing to do is to check it contains all the required information, and that the organisation making the request qualifies as a community transfer body (and is eligible to make a request for ownership, if appropriate).

9.2. If the organisation making the request is not eligible to do so, technically it is not an asset transfer request and no further action is required under the legislation. As a matter of good practice, you should reply explaining in general terms why the organisation is not eligible, and directing them to the guidance on eligibility. If appropriate, you should highlight any specific failings in the body's constitution.

9.3. If the request does not contain all the required information you must send the community transfer body a notice saying what is missing. As set out in regulation 4(2) of the Procedure Regulations, this applies if the request is in writing and contains a minimum of the community transfer body's name and contact address, and a statement that it is an asset transfer request under part 5 of the Act. No further action needs to be taken until all the required information is received. It would be helpful to make clear in the notice that the request will not be progressed until it is complete. Depending on the content of the partial request, you may also want to direct the community transfer bodies to sources of support, or invite them to discuss their proposals with you.

9.4. Only outline information under each heading is required to accept a request as complete. You can seek further information at a later stage if you feel this is needed to support the decision-making process.

Power to decline repeat requests

9.5. Section 93 of the Act allows a relevant authority to choose not to consider a request which is the same or very similar to a previous request which was refused. This applies if the new request relates to the same land or building, and seeks the same type of transfer, as a request made in the previous two years, which was refused. It does not matter if the new request is made by the same body or a different one. For example, if one community transfer body requests to lease a particular building, and is refused, and another body requests to lease the same building for very similar purposes within two years, the relevant authority may decline to consider that second request. On the other hand, if the second request was for transfer of ownership instead of a lease, the relevant authority would have to consider it. Declining to consider a request under these circumstances does not count as a refusal of the request and therefore is not eligible for appeal or review.

9.6. This provision is intended to help relevant authorities deal with repeated requests which are unlikely to have a different outcome. They can still choose to consider a repeated request if they wish. If the community transfer body has worked to improve its proposal, or other circumstances have changed, or the new request is from an entirely different organisation, it may well be appropriate to consider it.

9.7. Where a repeated request is declined, you should write to the community transfer body to advise them of the situation and the reason for declining the request.

Acknowledgement

9.8. Once you are satisfied that all the required information has been provided, you must send an acknowledgement to the community transfer body, as required by regulation 4(3) and (4). The acknowledgement must include the following information:

  • the validation date - regulation 5 states that this is the date on which the last of the required information was received (the date the request was received if it was complete). This is the date from which other time limits will be calculated.
  • an explanation of the timescale for you to issue the decision notice. As set out in regulation 10 and section 82(8), you must issue a decision notice within 6 months after the validation date, unless a longer period is agreed between the relevant authority and the community transfer body.
  • information about the right to appeal to the Scottish Ministers or request a review, as appropriate. This is required at the outset because of the option to appeal if no decision is made within the time limit. The acknowledgement should set out who the appeal or request for review can be made to, according to the relevant authority to which the request is made, and the circumstances in which it can be made. It would also be helpful to provide details of the address to which an appeal or request for review should be sent.
  • whether another asset transfer request has already been made to the relevant authority in respect of the same land (or part of the same land).
  • whether the relevant authority considers that it is now prohibited from disposing of the land to any other person (see below).

9.9. You may also want to consider including in the acknowledgement information about the process by which your authority will make its decision on the asset transfer request, and any further support that will be provided to the community transfer body.

9.10. A model acknowledgment letter is provided on the Scottish Government website.

Publication of documents

9.11. You must make copies of the asset transfer request and any documents or information accompanying it available to be viewed online, until the request process is completed. Any representations made about the request must also be put online.

9.12. In order to comply with data protection requirements, any personal information should be redacted from these documents before they are published.

9.13. It may be helpful for other community transfer bodies (and other relevant authorities) to maintain an archive of completed requests online. In particular, this will help community transfer bodies to know if previous requests have been made, and refused, for the same property.

Notification and representations

9.14. Regulations 6 and 7 of the Procedure Regulations set out arrangements for other people to be made aware that an asset transfer request has been made, and of how they can make representations about it. This must be done as soon as practicable after the validation date (the date the completed request was received).

9.15. You must directly notify any tenant or occupier of the land the request relates to. This would include any group which has an agreement for regular use of the land or building. You must also notify the owner, if the relevant authority leases the land.

9.16. Notice of the asset transfer request must also be published online, and put up at the site. Regulation 7(2)(b) requires it to "be displayed at a public place in the vicinity of the land to which the asset transfer request relates". You can delegate this to the community transfer body, or another agency, if you wish, to save staff having to travel to the site, but it is the responsibility of the relevant authority to ensure the notice is displayed.

9.17. If the request relates to a building or area of land in a settlement, the notice should normally be placed on the building or land, or on an object close to it. If it is a building open to the public, you may also want to put a copy somewhere prominent inside. However, it is more important that the notice is put up where interested people will see it than that it is on or adjacent to the land in question. It could be displayed in a village shop, on a community noticeboard or an information point in a car park - wherever local events and notices are normally advertised.

9.18. You can expect the community transfer body to publicise information about its proposals, and it will probably announce the fact that it has submitted a request, through social media, newsletters etc. However, it is the responsibility of the relevant authority to formally give notice that a request has been received and to invite representations.

9.19. Notices sent to tenants, occupiers and owners and those published online and near the land all require to contain the same information. They must:

  • state that an asset transfer request has been made
  • identify the community transfer body making the request and the land to which the request relates
  • give a brief description of the nature of the rights requested and how the community transfer body propose to use the land
  • say how the asset transfer request and associated documents can be inspected
  • say how representations about the request may be made, and by what date. This must be at least 20 working days after the notice is given or published

The notice should also advise that all representations will be copied to the community transfer body for their comments, and published

9.20. A template and example notices are provided on the Scottish Government website.

9.21. If any representations are received in response to these notices, the relevant authority must send copies to the community transfer body and inform them how and by what date they can make comments about them. The date must be at least 20 working days from the date on which the copy is sent. Any personal information should be redacted from representations before they are copied to the community transfer body or published online.

Prohibition on disposal of land

9.22. Once an asset transfer request has been made, the relevant authority is not allowed to sell, lease or otherwise dispose of the land it relates to, to anyone other than the community transfer body that made the request, until the whole process is completed. This is set out in section 84 of the Act. Subsection (11) provides that in these circumstances, any contract requiring the relevant authority to dispose of the property to any other person has no effect.

9.23. You should make sure that anyone dealing with property management will be aware of the fact that an asset transfer request has been made for a particular property, in case another approach is made for the same property while the process is underway. This might be done, for example, by putting a note on the property management system.

9.24. Subsections (4) to (10) of section 84 set out all the possible ways in which the asset transfer request process can come to an end. In summary, the process is completed when:

  • a contract for the transfer is concluded;
  • the request is refused and the community transfer body has followed all routes of appeal without success, or
  • the community transfer body fails to take the next action in the process within the time required. For example, if it does not make an offer, or does not request a review or appeal if the request is refused.

9.25. There is no statutory provision for a community transfer body to withdraw its request.

9.26. Under subsection (12), the prohibition on disposal does not apply if, before the asset transfer request is made, the land has already been advertised for sale or lease, or the relevant authority has entered into negotiations or begun proceedings to transfer or lease the land to another person. In these cases, an asset transfer request can still be made, but it will not prevent negotiations or proceedings continuing with, or bids being made by, any other person.

9.27. There is no specific definition of "entering into negotiations", but you should be able to show evidence of discussions that go further than a preliminary enquiry.

9.28. The Scottish Ministers can also make a direction to say that the prohibition does not apply. A request for a direction under section 84(13) must identify the land to which the asset transfer request relates, the relevant authority and the community transfer body, and must explain why you consider the prohibition on disposal should not apply.

Multiple requests for the same property

9.29. Each asset transfer request that is received must be processed in line with the procedures and timescales set out above, even if further requests are received for the same land before the first has been concluded. There is no provision, for example, to allow the relevant authority to delay a decision on one request until it has considered another, unless the community transfer body making the first request has agreed to an extension of the timescale. However, if you are using a pre-application process, you may be able to agree with the community transfer bodies involved that all requests will be submitted at roughly the same time, allowing them to be processed in parallel. Ideally, all community transfer bodies interested in a particular property would work together to submit a single request, but this is not always practical.

9.30. Each asset transfer request that is received prohibits the relevant authority from disposing of the land to anyone other than the community transfer body making that request, until it has been completed (as described in paragraphs 8.11.). Where there are multiple requests for the same land, this could result in overlapping prohibitions. It is not considered that receiving and processing an asset transfer request would disapply the prohibition in terms of section 84(12), in respect of subsequent requests. Equally, the prohibition imposed by the first request would not prevent subsequent requests being processed, but the ultimate disposal of the land could not take place until all requests have been concluded, including any appeals.

9.31. If the relevant authority decides to agree to one of the requests, it may be appropriate to include in the decision notice that the agreement is conditional on the prohibition imposed by the other request(s) being lifted. An application can be made to the Scottish Ministers for a direction to disapply the prohibition if necessary.

9.32. As explained in paragraph 9.26, the prohibition on disposal does not apply if the land has already been advertised or negotiations for transfer have begun before any asset transfer request is received. In this situation it would be helpful to keep the community transfer body informed of the progress of that process, so they can understand how this may affect their request. The asset transfer request must be processed according to the legislation, but the decision would take into account the other offer(s) or negotiations and whether these would restrict the authority's ability to agree to the request.


Contact

Email: Jean Waddie