Land Reform (Scotland) Act 2003 | |||||||||||||||||||||||||||||||||||||||||
2003 Chapter 2 - continued | |||||||||||||||||||||||||||||||||||||||||
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Section 88: Assessment of value of croft land etc. 353. Subsection (1) requires that Ministers, where they have consented to a crofting community right buy application, must appoint a valuer to assess the value of that land or an interest in land within 7 days of that consent except where the circumstances set out in subsection (2) arise, namely a reference to the Land Court under section 83(2) (leaseback to owner of sporting interests). 354. Subsection (2) specifies that where the Land Court has to settle the terms of a leaseback a valuer should be appointed within 7 days of the date on which the terms of the leaseback have been determined by the Court. 355. Subsection (4) makes clear that in arriving at his/her valuation the valuer is acting for neither the crofting community body nor the landowner and is to act as an expert and not as an arbiter. 356. Subsection (5) specifies that the value to be ascertained is the market value at the date Ministers consented to the application to exercise the right to buy. 357. Subsection (6) defines market value as the sum of the open market value if the sale were between a willing seller and willing buyer, compensation for any depreciation in value of other land and interests belonging to the seller as a result of the forced sale and compensation for any disturbance to the seller resulting from the forced sale. 358. Subsection (7) specifies that in arriving at the open market value for the purposes of subsection (6)(a) account should be taken of the possibility of a potential purchaser with a special interest in the property (other than the crofting community body). It also specifies that no account shall be taken in that assessment of the fact that no time was allowed for marketing the property or of depreciation of other land or disturbance (since compensation for these latter two items will be added to the open market value by virtue of subsection (6)(b)). 359. Subsection (8) states that Ministers shall pay for the valuation under this section. 360. Subsection (9) requires the valuer to ask both the owner and the crofting community body for their views in writing on the value of land or interests and to take these representations into account in arriving at his or her valuation. 361. Subsection (10) specifies that where the crofting community body and the owner have agreed the valuation they shall notify the valuer in writing of that valuation. 362. Subsection (11) provides for discounting the valuation on account of the value of a leaseback of the sporting interest to the owner. 363. Subsections (12) and (13) require the appointed valuer to notify Ministers, the landowner and the crofting community body of his or her valuation. This must be done within 6 weeks of being appointed or within a longer period set by Ministers. 364. Subsection (14) confirms that the validity of the transfer is not affected by a failure by the valuer to comply with the time limit. Section 89: Compensation 365. This section provides for payment of compensation to anyone who has incurred losses or expenses as a result of an application to exercise the crofting community right to buy. It provides that the compensation will be payable by the crofting community body except where Ministers have refused the application, in which case the compensation will be paid by Ministers. 366. Subsection (1) specifies the circumstances in which eligibility for compensation which can be recovered from the crofting community body will arise. 367. Subsection (2) provides that the crofting community body will not be liable to pay compensation when a crofting community right to buy application is made but is not approved by Ministers. 368. Subsection (3) specifies that in the circumstances covered by subsection (2) compensation for certain losses and expenses can be recovered from Ministers. 369. Subsection (4) provides that Ministers must make an order governing how compensation is to be claimed. 370. Subsection (5) provides that if the parties cannot agree whether compensation is payable or the amount of such compensation within the timescale specified in the order, then either party may refer the matter to the Scottish Land Court. Section 90: Grants towards crofting community bodies' liabilities to pay compensation 371. This section provides that Ministers may, in certain limited circumstances, pay a grant to a crofting community body to assist it in meeting the compensation it has to pay in connection with its exercise of the crofting community right to buy. 372. Subsection (2) specifies the circumstances in which payment of such a grant would be permitted and subsection (3) makes it clear that Ministers are not bound to pay grant even when all the circumstances specified arise. 373. Subsection (4) provides that payment of grant may be subject to conditions including conditions relating to repayment in the event of breach. 374. Subsection (5) provides that grant may be paid only if the crofting community body applies for it and subsection (6) provides that the form of the application and the application procedure will be specified by Ministers in regulations. 375. Subsection (7) specifies that Ministers must issue their decision on a grant application in writing and, in the case of refusal, specify the reasons for the refusal. 376. Subsection (8) provides that the decision by Ministers is final. Section 91: Appeals 377. Subsections (1) and (2) provide that the landowner, any person who is a member of the crofting community, any person who has a legally enforceable right relating to the land or interests to which an application relates and anyone invited to give views on an application to exercise the crofting community right to buy in relation to that land or those interests may appeal against the Ministers' decision to consent to the application, by means of a summary application to the Sheriff. 378. Subsection (3) specifies that the crofting community body may by summary application appeal the refusal of Minister to consent to an application. However, subsection (4) makes it clear that this right does not extend to a decision by Ministers under section 73 upon which of two or more applications to buy the same land they should consent to. 379. Subsection (5) restricts appeals under subsections (1) and (3) to those on a point of law. 380. Subsections (6), (7) and (8) indicate which sheriff has jurisdiction to hear appeals, how the sheriff must dispose of these and that the sheriff's decision is final. 381. Subsection (9) provides that where the effect of the order by the sheriff is the same as granting the application the order may be made subject to any condition which Ministers could have imposed, and subsection (10) ensures that such an order shall be consistent with any decision or findings by the Scottish Land Court either in respect of additional land or in respect of a question on an application. Section 92: Appeals to Land Court: valuation 382. Subsection (1) provides that the owner of land or of sporting interests over which the crofting community right to buy is being exercised and the crofting community body which is exercising that right to buy may appeal to the Scottish Land Court against the valuation of that land or those interests. 383. Subsection (2) requires such an appeal to state the grounds of appeal and be lodged within 21 days of notification of the valuation. 384. Subsection (3) provides that the Scottish Land Court may reassess the value of the land or interests. 385. Subsection (4) provides that the valuer may be a witness in the appeal proceedings. 386. Subsection (5) requires the Scottish Land Court to give its decision on the appeal, in writing with reasons, within 4 weeks of hearing the appeal. 387. Subsection (7) provides that Ministers are not competent parties to any appeal by reason only that they appointed the valuer. Section 93: Agreement as to matters referred or appealed 388. This provision allows the parties to a crofting community right to buy to reach an out of court settlement on any issues relating to a crofting community right to buy which are the subject of an appeal. Section 94: Register of Crofting Community Rights to Buy 389. Subsection (1) provides that the Crofters Commission will be responsible for the creation and maintenance of a Register of Crofting Community Rights to Buy. 390. Subsection (2) specifies information and documents that must be kept in the Register and provides that these must be kept available for public inspection and in an accessible form. 391. Subsection (3) gives Ministers power to make orders which modify what may be held on the Register. Section 95(5) provides that no such order may be made unless a draft of it has been approved by a resolution of the Scottish Parliament. 392. Subsection (4) specifies who must send copies of documents and information that are to be held on the Register to the Crofters Commission and when that must be done. 393. Subsection (5) provides that the Crofters Commission must ensure free public access to the Register with provision of facilities for copying entries on payment of a charge and provision for obtaining certified copies of entries on payment of a charge. 394. Subsection (6) specifies that certified copies may be used as evidence of the original. Section 95: Avoidance of disposal other than to crofting community body 395. This section provides that after the date on which Ministers approve a right to buy application the owner of the land or sporting interests in respect of which the right to buy has been approved may not thereafter sell it to anyone other than the crofting community body. It further provides that the prohibition on sale will end if the body decides not to exercise the right to buy or withdraws the crofting community right to buy application. Section 96: Limitation on affect of this Part 396. This section ensures that the rights of crofters under the Crofters (Scotland) Act 1993 (c.44) are not affected by the provisions relating to the crofting community right to buy. It also provides that a crofting community body which buys croft land through the exercise of the crofting community right to buy will be a landlord for the purposes of that Act and makes it clear that a crofting community body which is created for the purpose of using the crofting community right to buy conferred by Part 3 to buy land or sporting interests is not prevented from acquiring any other property by other means. Section 97: Scottish Land Court: jurisdiction 397. This section empowers the Scottish Land Court to conduct hearings into and determine matters of fact and law relating to the exercise of the crofting community right to buy. 398. Subsection (1) indicates that the powers of the Scottish Land Court are limited in two respects. Firstly because decisions under section 79 fall to be made by Ministers, and secondly because Section 91 gives the sheriff jurisdiction on hearing and determining appeals on points of law against decisions by Ministers to consent or refuse to consent to applications. 399. Subsection (2) provides for consequential amendment of section 1(7) of the Scottish Land Court Act 1993 (c.45). This allows the Court, if it thinks fit, and requires it, on the request of any party, to state a special case on any question of law arising in any proceedings pending before it under Part 3 for the opinion of the Inner House of the Court of Session. 400. The decision of the Scottish Land Court on the matters over which it exercises jurisdiction is final unless a referral is made to the Inner House of the Court of Session under the 1993 Act (as amended by subsection (2)). 401. Subsection (3) provides that there is no appeal to the full Scottish Land Court in the event that a matter referred to the Court under Part 3 is determined by a single member of the Court acting under delegation from the full Court. PART 4 GENERAL AND SUPPLEMENTARY Section 98: General and supplementary provisions 402. This section provides definitions and general information pertaining to all Parts of the Act. 403. Subsections (2) to (5) regulate the making of orders and regulations by Ministers under the Act. 404. Subsections (6) and (7) detail what constitutes the sending or making of any application, notification or other specified communication, and what constitutes the effective date of such application, notification or other specified communication. Section 99: Amendments, repeals and savings 405. This section gives effect to schedule 2, which contains details of amendments, repeals and savings to other Acts. Section 100: Short title, Crown application and commencement 406. Subsection (2) provides that the Act binds the Crown. 407. Subsections (3) and (4) provides that the Act (excluding this section and section 98, which are effective from the day the Bill received Royal Assent - 25 February 2003) will come into force on such day as Ministers may by order appoint, and that different days may be appointed for different purposes. SCHEDULE 1: PATH ORDERS 408. Schedule 1 sets out the procedures that a local authority must follow when proposing to make a path order under section 22. 409. Paragraph 1 requires a local authority to give notice to the owner of the relevant land of its intention to make an order, and to provide the owner with a copy of the proposed order. 410. Paragraph 2 allows up to 28 days for objections to the proposed order to be submitted by the owner in the manner set out in the notice. 411. Paragraph 3 provides that if no objections are received or any are withdrawn, the local authority can proceed with the making of the order and it shall take effect. 412. Paragraphs 4 and 5 provide that if an objection is received and not withdrawn, then an order cannot have effect unless confirmed by Ministers. Where an objection is not withdrawn, the owner must be afforded the opportunity of being heard before a person appointed by Ministers. 413. Paragraph 6 requires Ministers, after considering the report from the appointed person, to confirm an order with or without modifications, and paragraph 7 provides that the order will have effect once it is confirmed. 414. Paragraph 8 places a duty on a local authority, as soon as an order takes effect, to give notice of this to the owner along with a copy of the order. 415. Paragraph 9 requires a local authority to obtain the consent of a statutory undertaker before making a path order over land on which the statutory undertaker has apparatus. However, paragraph 10 requires that such consent should not be unreasonably withheld. Paragraphs 11 - 14 make provision for the operators of any telecommunications code system in connection with the making of path orders. The telecommunications code is provided for in section 10 of and schedule 2 to the Telecommunications Act 1984 (c.12), and sets out statutory guidance on the exercise of functions by the operators of a telecommunications system who have been licensed under the provisions of that Act. SCHEDULE 2 AMENDMENT AND REPEAL OF ENACTMENTS Trespass (Scotland) Act 1865 (c.56) 416. Paragraph 1 amends section 3 of the Trespass (Scotland) Act 1865, which makes it an offence to occupy or camp on land without the consent of the owner, to provide that this offence does not apply to someone exercising access rights created by Part 1. Acquisition of Land (Authorisation of Procedure) (Scotland) Act 1947 (c.42) 417. Paragraph 2 amends the Acquisition of Land (Authorisation of Procedure) (Scotland) Act 1947 to provide that compulsory acquisitions by Ministers under section 35 or 72 are to be carried out in accordance with the procedures set out in that Act. Countryside (Scotland) Act 1967 (c.86) 418. Paragraph 4(a) repeals the whole of Part II of the Countryside (Scotland) Act 1967, which relates to access to open country, which will be superseded by the creation of access rights and by the new duties and powers of local authorities as introduced by Part 1. Paragraph 65 provides that the repeal of Part II does not in any way affect any compensation claim under section 21 of that Act nor does it affect the rules governing the assessment and payment of compensation under sections 21 to 23 and 70 of that Act. 419. Paragraph 4(b) repeals sections 30 to 38 (creation, closure and diversion of public paths) of the 1967 Act, which are superseded by sections 21 and 22 of this Act. However, paragraph 7 provides a saving to enable the continued application of those powers in relation to land in respect of which access rights do not apply. 420. Paragraph 4(e) repeals section 55 of the 1967 Act which gave Ministers a default power to make bylaws and paragraph 4(d) makes an amendment to section 54 of that Act consequential on this repeal. Paragraph 4(f) removes references to the making of access orders in the provisions for the making, confirmation, coming into force and validity of orders relating to public paths set out in Schedule 3 of the 1967 Act. This is because the provisions in the 1967 Act relating to access orders are repealed by the repeal of Part II of that Act. 421. Paragraph 5 amends section 47 of the 1967 Act to the effect that references to rights of way in Part III of that Act are not to be interpreted to include references to access rights created under Part 1. This means that the duties placed on local authorities in respect of rights of way by Part III of the 1967 Act do not extend to access rights. Civic Government (Scotland) Act 1982 (c.45) 422. Paragraph 8 amends the Civic Government (Scotland) Act 1982 to remove the power of local authorities to make bylaws in respect of inland water as set out in section 121 of that Act. This power is replaced by the bylaw making powers in section 12 of this Act. However, the powers in the 1982 Act to make bylaws in respect of the seashore and adjacent waters are retained. Public Order Act 1986 (c.64) 423. Paragraph 9 inserts a new subsection (9A) in section 14A of the Public Order Act 1986. This clarifies that references in that section to the public's right of access do not include access rights. Criminal Justice and Public Order Act 1994 (c.33) 424. Paragraph 11 inserts new subsections (4A) and (4B) in section 61 of the Criminal Justice and Public Order Act 1994. This section gives the police powers to remove two or more persons from land if they have reason to believe that these persons have become trespassers. This amendment clarifies that people who have ceased to be entitled to exercise access rights for the reasons specified in the new subsection (4A)(a) and (b), will be deemed to be trespassers and, therefore, subject to the provisions in section 61 of the 1994 Act. 425. Paragraph 12 inserts a new subsection (5A) in section 64 of the 1994 Act. This section allows the police to seize a vehicle or sound equipment in certain circumstances. These include where someone has entered land as a trespasser with a vehicle or sound equipment in contravention of a direction, and the new subsection provides that such conduct is not within the scope of access rights. 426. Paragraph 13 inserts a new subsection (1A) in section 68 of the 1994 Act that establishes the offence of aggravated trespass. The new subsection provides that someone exercising access rights in Scotland can be charged with aggravated trespass if engaging in the conduct set out in section 68(1) of the 1994 Act. The Conservation (Natural Habitats Etc.) Regulations 1994 (S.I. 1994/2716) 427. Paragraph 15 amends regulation 3(2) of the 1994 Regulations so as to provide that Ministers and Scottish Natural Heritage, in exercising their functions under this Act, must do so in a way that complies with the requirements of Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora. 428. Paragraph 16 inserts a new section 69A into the 1994 Regulations, the effect of which is to ensure that whenever a local authority is preparing a core path plan or is delineating, creating or maintaining a path under the relevant provisions of this Act in relation to land on which there is situated a site protected for the purpose of Community law, the authority will require to undertake a prior nature conservation impact assessment in accordance with the relevant provisions of the 1994 Regulations. Town and Country Planning (Scotland) Act 1997(c.8) 429. Paragraph 17 provides that section 208 of the Town and Country Planning (Scotland) Act 1997 (c.8) allows planning authorities to, if necessary, authorise the stopping up or diversion of core paths to enable development to be carried out. PARLIAMENTARY HISTORY FOR THE LAND REFORM (SCOTLAND) ACT 2003 The following table sets out, for each Stage of the proceedings in the Scottish Parliament on the Bill for this Act, the dates on which proceedings at that Stage took place, the references to the Official Report of those proceedings and the dates on which Committee Reports were published and the references to those Reports.
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© Crown copyright 2003 | Prepared: 7 April 2003 |