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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
8. Requirements for an Asset Transfer Request

95 page PDF

771.8kB

8. Requirements for an Asset Transfer Request

8.1. Ideally, you will be aware of any community body's intention to make an asset transfer request before it is formally submitted. Community transfer bodies are strongly advised to contact the relevant authority and discuss their proposals at an early stage. You should make sure it is easy for community bodies to get information about the scheme and that all relevant officers are aware of it and can direct enquiries to the appropriate team. At this stage you can also, if appropriate, direct the community body to other sources of support - see Annex C.

8.2. In the past, most voluntary asset transfer schemes have taken a two-stage approach. Community bodies were asked to submit outline proposals or expressions of interest, and if this was given approval in principle they would be supported to develop a full case to go forward for a final decision. While the statutory scheme requires a full request to be made to initiate the process, it may still be helpful to invite outline proposals as a "pre-application" stage. Community bodies would then know whether they had support from the relevant authority before undertaking the substantial work to produce a full asset transfer request, or applying for funding. However, they will still have the right to submit an asset transfer request without going through any "pre-application" stage, or if their outline proposals have not been supported.

8.3. Whatever other arrangements may be in place, community transfer bodies have a right to submit an asset transfer request without any previous discussion and you must be ready to process it in accordance with the requirements of the Act.

Content of a request

8.4. The legislation requires certain information to be specified 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 expect to see under different headings. The next chapter explains how to process the request, and what to do when a request is incomplete.

8.5. 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 to accept an asset transfer request as complete and valid. The relevant authority can seek further detail 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. The level of detail required should be proportionate to the scale and nature of the request, but the community transfer body should always be given the opportunity to provide any missing information which is considered to be key to the decision.

8.6. A standard form for an asset transfer request is provided on the Scottish Government website. This is intended to help community transfer bodies to make sure they provide all the information needed for a valid request, but is not statutory. You could also provide a tailored form for your own relevant authority, which may ask for additional information specific to your organisation, but you cannot require a community transfer body to use any particular form. The only requirement is that they provide all the information specified in the Act and Regulations.

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

8.8. 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

8.9. The name and contact address of the community transfer body are required. The form also gives space for an email address and telephone number.

8.10. The form states that by providing an email address the community transfer body agrees that the relevant authority can send any correspondence relating to the request to that address. Under regulation 12 of the Procedure Regulations they are also deemed to give consent if they send any material by email (if the form is sent from a different email address than is given on the form, you will need to clarify which they intend to be used). The community transfer body can ask the relevant authority to stop sending correspondence by email, or change the email address to which correspondence should be sent, by giving 5 working days' notice.

8.11. The organisation's constitution, articles of association or registered rules must be attached, so that you can check the organisation is eligible to make an asset transfer request, and to make a request for ownership if appropriate (see chapter 5). The company number, charity number or registered number are also requested on the standard form, to provide for background checks.

8.12. 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, they must explain this. Designation orders will be published online for reference.

E The land to which the request relates

8.13. The request must provide sufficient information to be clear what land is being requested.

8.14. If the land is on your register of land, you can expect the community transfer body to copy those details. If not, they should provide similar details, ie the name by which the land or building is known, the street address (including postcode) if there is one, or a grid reference. If the request is only for part of a plot or a building it must be clear exactly what is requested. For example, a request for one building on a larger site should identify the boundaries of the land required around it; any request for lease or use of part of a building should include details of any use of amenities required, for example storage, kitchens or parking.

8.15. Maps or drawings may not be necessary if the location and boundaries of the land requested are clear from the description. For rural land, or if only part of a piece of land or a building is being requested, a map is likely to be required to accurately identify the area being requested. If possible you should assist the community transfer body to provide suitable maps or drawings, for example by providing copies of any existing maps, directing them to sources of mapping information, or helping them to understand the level of detail required.

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

8.16. The request must state clearly whether it is for:

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

8.17. A request for ownership must state the price that the community transfer body is prepared to pay for the land.

8.18. A request for ownership must state the amount of rent the community transfer body is are prepared to pay, the duration of the lease, and any other terms and conditions they consider should be included in the lease.

8.19. A request for other rights must state the nature and extent of the rights sought.

8.20. All requests should also include any other terms and conditions applicable to the request (section 79(2)(h). For ownership, this is likely to include key terms which the community transfer body wishes 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. This section need not be completed if the community transfer body does 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

8.21. The community transfer body should explain the reasons behind the project and why this land or building is necessary or particularly suitable for it. They should also set out how the land or building will be used and what activities, in general terms, will take place there. For example, the reason for making the request may be to prevent a prominent building from falling into disrepair, or increase tourism to the area; the intention might be to use it as a visitor centre or community venue; more information would then be needed on the planned activities. In other cases the reason and use may be the same, for example where the intention is to develop a hydroelectric scheme or a community garden. This section should also set out any planned physical changes or development on the land.

M Benefits of the proposals

8.22. This is one of the most important sections of the request, since the benefits of the community body's proposals are key to the decision on whether to agree to or refuse the request, as set out in chapter 10.

8.23. You should consider all requests in detail to understand the proposed benefits, but community transfer bodies are encouraged to set them out along the lines of the issues relevant authorities are required to consider, and with reference to intended outcomes. They are also encouraged to show how they might address any potential negative consequences, take account of any restrictions on the use of the land, and demonstrate the capacity of the organisation to deliver the project.

8.24. If possible, you should advise the community body at an early stage of any negative consequences likely to arise, and discuss whether these can be addressed or mitigated. If the land is subject to heritage or conservation designations, the community transfer body should show they have engaged with the appropriate regulators, and that their proposals support the Local Development Plan, if relevant.

N Funding

8.25. The community transfer body must outline how they propose to fund the price or rent they are prepared to pay for the land, and their proposed use of the land. This should include any development costs, ongoing maintenance and the costs of activities.

8.26. In some cases this will be very straightforward, for example if the organisation's rent and incidental expenses are covered by the fees paid by members, or by volunteering, donations and fundraising. For large projects, more detail will be required, showing that the community transfer body understands all the costs associated with their proposals and how these will be covered. This may be through grants, loans, fees for activities, income from commercial operations, and so on. Community bodies should not be expected to have funding in place when the request is made, but they should have a clear idea of where they expect to get it.

O Community support

8.27. The request must set out the level and nature of support for it within the community to which the community transfer body relates, ie the community defined in the community transfer body's constitution. How the level and nature of support should be described will depend on the particular case, but could include evidence from a range of activities undertaken to engage with the wider community, such as public meetings, community surveys, community action planning or a charette, or community budgeting. The community transfer body may reference the National Standards for Community Engagement [3] to show that their engagement has been effective and inclusive. A full community ballot may be used, but is not required. The community transfer body will not have access to the assistance from the Scottish Government that is available for community right to buy applications, where a ballot is compulsory.

8.28. Community transfer bodies are encouraged to include information on the total number of people in their community and how many of them are members of the organisation to provide context for the level of support. Communities of interest may only be able to estimate this, using evidence such as the census, other surveys or information from national representative bodies.

8.29. The legislation only refers to support from the community which the body represents, but details of other support may also be provided. This could be, for example, from another local community or community of interest which the project will benefit, or from organisations such as a sport governing body or national umbrella body.

Signatures

8.30. 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 relevant authorities to undertake fraud prevention checks.

Procedure following receipt of an asset transfer request

info2

Contact

Email: Jean Waddie

Phone: 0300 244 4000 – Central Enquiry Unit

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