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Publication - Guidance

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

Published: 10 Nov 2016
Part of:
Communities and third sector
ISBN:
9781786525925

Guidance for public sector bodies on the statutory asset transfer scheme.

95 page PDF

771.8kB

95 page PDF

771.8kB

Contents
Community Empowerment (Scotland) Act 2015: draft asset transfer guidance for authorities
19. Appeal to the Scottish Ministers

95 page PDF

771.8kB

19. Appeal to the Scottish Ministers

19.1. If the asset transfer request was made to any relevant authority other than the Scottish Ministers or a local authority, the community transfer body can appeal to the Scottish Ministers, as set out in section 85 of the Act. Procedures for such appeals are set out in the Asset Transfer Request (Appeals) (Scotland) Regulations 2016.

19.2. Community transfer bodies can also appeal to the Scottish Ministers following a review by a local authority, as provided by section 88 of the Act. The procedure is the same in both cases. Part 4 of the regulations sets out the technical differences in how they refer back to section 88 instead of section 85.

Notice of appeal and local authority response

19.3. The community transfer body must send a notice of appeal in writing to the Scottish Ministers within 20 working days beginning with the date of the decision notice, or if no decision has been made, within 20 working days beginning with the date of the deadline for the decision (6 months from the validation date, as given in the acknowledgement of the request, or a later date if agreed between you). For appeals following a local authority review, this relates to the date of the decision on the review, or the deadline for that decision.

19.4. The notice of appeal must include the name and contact address of the community transfer body, and specify the land to which the asset transfer request relates. It must also include a statement setting out why they are appealing, the matters which they consider should be taken into account in determining the appeal, and the procedure which they consider should be used, for example whether there should be a hearing or perhaps a site visit, in addition to written representations..

19.5. The Scottish Ministers may consider any aspect of the decision in their appeal, including issues not raised by the community transfer body, but they will mainly focus on the matters covered in the notice of appeal.

19.6. The notice of appeal must cover all matters which the community transfer body intends to raise in the appeal, and be accompanied by all documents or other evidence they intend to refer to. Further matters or evidence may only be brought forward in response to representations on the appeal, or if the Scottish Ministers request it.

19.7. The notice of appeal must be accompanied by a copy of the original asset transfer request, and all documents provided by the community transfer body to the relevant authority in connection with the request (and review, if appropriate). If a decision notice has been issued, this must also be attached. The Scottish Ministers will publish all these documents on their website.

19.8. At the same time as sending the notice of appeal to the Scottish Ministers, the community transfer body must send a copy to the relevant authority. This must be accompanied by a list of all the documents and evidence sent to the Scottish Ministers, and copies of anything the relevant authority does not already have.

19.9. The relevant authority must send a response to the Scottish Ministers within 15 working days of receiving the copy of the notice of appeal. This must set out the matters you consider should be taken into account in the appeal and the procedure you consider should be used. The final decision on what procedure to use will be up to the Scottish Ministers. You must also send to the Scottish Ministers copies of any documents that were before the relevant authority and were taken into account in reaching its decision on the request (or review), which were not included with the community transfer body's notice of appeal.

19.10. Your response must cover all matters which you intend to raise in the appeal, and be accompanied by all documents or other evidence you intend to refer to. Further matters or evidence may only be brought forward in response to representations on the appeal, or if the Scottish Ministers request it.

19.11. If there are any issues raised in the relevant authority's response that were not covered in the original decision notice, the community transfer body may send comments to the Scottish Ministers within 15 working days of receiving that response, together with any related documents or evidence. All this material will be published on the Scottish Ministers' website.

Notification of interested parties

19.12. The relevant authority is responsible for giving notice of the appeal to any "interested parties" who made representations on the original asset transfer request (or review). This must be done within 10 working days of receiving the notice of appeal. The relevant authority must also send copies of the original representations to the Scottish Ministers, to be considered when determining the appeal.

19.13. Notice must be sent by post to any interested party who is a tenant or occupier of the land or building to which the request relates, or an owner if the relevant authority leases it. Other interested parties may be notified by post, or by newspaper advertisement. Every interested party should have given a name and address with their original representation, but newspaper advertisement may be more appropriate if there are large numbers to be notified.

19.14. The notice to interested parties must state the name of the community transfer body and the land to which the asset transfer request relates. It must say that copies of any representations previously made about the asset transfer request (or review) will be sent to the Scottish Ministers and the community transfer body and will be considered by the Scottish Ministers when determining the appeal, and that further representations may be made, giving information about how and by what date they must be made. It must also state how documents relating to the review can be inspected.

19.15. If the requirements for notification and publication of the original asset transfer request were not fully met at the time, the Scottish Ministers must complete this before determining the appeal.

19.16. Interested parties may make representations to the Scottish Ministers within 10 working days of the date of the notice. After this they may not bring forward any further matters or evidence unless the Scottish Ministers request it.

19.17. The Scottish Ministers will send a copy of any representations received in relation to the appeal to the community transfer body and the relevant authority, and inform you how and by what date you may make comments on those representations to the Scottish Ministers. This must be at least 10 working days from the date of sending the copy.

19.18. The Scottish Ministers may require anyone who has submitted any documents or other material in connection with the appeal to provide additional copies to the Scottish Ministers or to any other person. They may require the relevant authority to make copies of such material available for inspection at an office, for example if it is not practical to view them online.

Further representations

19.19. Once they have the initial evidence, any representations from interested parties and comments on those representations, the Scottish Ministers may consider they have enough information to determine the appeal. If not, they will decide what further procedure to use to get more information. This could be by written submissions, a hearing session, or other procedures such as a visit to the land to which the asset transfer request relates or to another relevant site (for example the community transfer body's existing premises or another similar community project). Anyone may be asked to provide further information by written submissions, or by attending a hearing session, including people not previously involved in the case.

19.20. If further written submissions are required, the Scottish Ministers will send a notice to the community transfer body, the relevant authority, and any other person they want information from. The notice must set out the matters on which further representations are required, and the date by which they are to be sent to the Scottish Ministers. It must also give the name and address of each person the notice is sent to. Any information provided to the Scottish Ministers in response to the notice must be copied to everyone else the notice was sent to. Those other people then have 10 working days to send any comments to the Scottish Ministers, again copied to everyone else.

Hearing session rules

19.21. The rules for arranging and conducting a hearing session are set out in the Schedule to the Regulations.

19.22. If the Scottish Ministers decide they should hold a hearing session to get more information on particular matters, they must send a notice to the community transfer body, the relevant authority, any interested parties, and any other person they want to provide further information. The notice must set out the matters to be considered at the hearing session. Apart from the community transfer body and the relevant authority, who are automatically entitled to appear, the people invited must confirm within 10 working days if they plan to attend the hearing session. The Scottish Ministers must inform you of the date, time and place when the session will be held, giving as much notice as they consider reasonable in the circumstances. This also applies if the date, time or place of the hearing session is changed.

19.23. If they wish, the Scottish Ministers may ask people who plan to attend the hearing session to submit a written statement of the case they plan to make, in relation to the matters specified to be considered at the hearing. They must send a notice requesting this, specifying the date by which those statements must be submitted. The hearing statement must be accompanied by a list of documents you intend to rely on, and a copy of any of those documents which has not already been submitted and published in connection with the appeal. Other people may speak at the hearing session in relation to your case; your hearing statement must list any such persons, setting out the matters which they are to address and their qualifications for doing so.

19.24. The notice requesting a hearing statement may also require you to copy it to other people who are entitled to appear at the hearing. All hearing statements from other people must be copied to the community transfer body and the relevant authority. The Scottish Ministers must also publish them online. The Scottish Ministers may request further information about matters contained in a hearing statement; that further information must also be copied to anyone else the hearing statement was sent to.

19.25. The hearing session is intended to be a discussion, led by the Scottish Ministers, on the particular matters set out in the notice of the session. The people attending will not normally be allowed to question each other on their statements, and the Scottish Ministers will be able to stop anything being raised if they consider it is not relevant or is repeating previous points. Anyone who is entitled to appear at the hearing session may be represented by someone else, if they wish. One representative may speak for a group of people who have similar interests in the case.

Additional evidence

19.26. If the Scottish Ministers propose to take into consideration any new evidence that was not obtained through the process for written representations or hearing sessions, they must not reach a decision on the appeal without giving the community transfer body, the relevant authority and other "relevant parties" an opportunity to comment on that evidence. "Relevant parties" are anyone who was entitled to appear at a hearing session, if the evidence relates to matters considered at the hearing session, or anyone who was sent a notice requesting further information in writing, if the evidence relates to matters covered by that notice.

Decision

19.27. Having carried out the appeal, the Scottish Ministers may allow or dismiss the appeal, and may reverse or vary any part of the original decision, even if that part was not mentioned in the appeal, including changing the terms and conditions set out in the decision notice.

19.28. If the outcome of the appeal is that the asset is to be transferred, or any terms and conditions in the decision notice are to be changed, the Scottish Ministers must issue a direction to the relevant authority requiring them to issue a new decision notice on those terms. This decision notice replaces any previous decision notice in relation to the asset transfer request.

19.29. The Scottish Ministers must notify the community transfer body and the relevant authority of its decision, and send the community transfer body a copy of any direction issued to the relevant authority. They must also publish their decision and any direction online and inform every person who made written representations in relation to the appeal of the decision and where the notice can be inspected.

Appeal where no contract concluded

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Contact

Email: Jean Waddie

Phone: 0300 244 4000 – Central Enquiry Unit

The Scottish Government
St Andrew's House
Regent Road
Edinburgh
EH1 3DG