Citation, commencement and interpretation

1.-(1) These Regulations may be cited as the Community Right to Buy (Abandoned, Neglected or Detrimental Land) (Eligible Land, Regulators and Restrictions on Transfers and Dealing) (Scotland) Regulations 2018 and come into force on 27th June 2018.

(2) In these Regulations, unless the context requires otherwise-

"the Act" means the Land Reform (Scotland) Act 2003;

"Part 3A community body" means a Part 3A community body within the meaning given in section 97D(1) of the Act (part 3A community bodies);

"restriction period" means the period during which specified persons are prohibited from transferring or otherwise dealing with land in respect of which a Part 3A community body has made an application under section 97G of the Act; and

"section 97G land" means land in respect of which an application has been made under section 97G of the Act (right to buy: application for consent) for consent to exercise a right to buy under Part 3A of the Act(2).

Eligible land

Matters Ministers must have regard to when determining whether land is eligible for the purposes of Part 3A of the Act

2.-(1) For the purposes of section 97C(4) of the Act (right to buy eligible land) matters that Ministers must have regard to are specified in paragraphs (2) and (3).

(2) In relation to section 97C(2)(a) of the Act and the question of whether land is wholly or mainly abandoned or neglected the matters are-

(a)matters relating to the physical condition of the land that are set out in regulation 3;

(b)matters relating to the designation or classification of the land that are set out in regulation 4; and

(c)matters relating to the use or management of the land that are set out in regulation 5.

(3) In relation to section 97C(2)(b) of the Act and the question of whether the use or management of the land is such that it results in or causes harm, directly or indirectly, to the environmental wellbeing of a relevant community, the matters are-

(a)matters relating to the use or management of the land that are set out in regulation 5; and

(b)matters relating to the effect on the relevant community that are set out in regulation 6.

Physical condition of land

3.-(1) The matters referred to in regulation 2(2)(a) are-

(a)the physical condition of the land and any building or other structure on the land;

(b)the length of time that the land, building or other structure have been in that condition;

(c)the extent, if any, to which the physical condition of the land or any building or other structure on the land-

(i)is a risk to public safety;

(ii)has, or is likely to have, a detrimental effect on adjacent land;

(iii)causes, or is likely to cause, environmental harm.

(2) In this regulation-

"environmental harm" has the meaning given in section 17(2) of the Regulatory Reform (Scotland) Act 2014 (meaning of expressions used in section 16 and schedule 2)(3).

Designation or classification of land

4.-(1) The matters referred to in regulation 2(2)(b) are-

(a)whether the land, or any part of the land, is or forms part of a nature reserve or conservation area;

(b)whether the land, or any part of the land, is a special site;

(c)whether any building or other structure on the land is a listed building or scheduled monument;

(d)any policies or proposals in a local development plan or associated guidance relevant to the land or any part of the land;

(e)any policies or proposals in a strategic development plan or associated guidance relevant to the land or any part of the land;

(f)any policies or proposals in the National Planning Framework 3 relevant to the land or any part of the land(4).

(2) In this regulation-

"conservation area" means an area designated as a conservation area under section 61 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 (designation of conservation areas)(5);

"listed building" has the meaning given in section 1(4) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 (listing of buildings of special architectural or historic interest)(6);

"local development plan" has the meaning given in section 15(1) of the Town and Country Planning (Scotland) Act 1997(7);

"nature reserve" has the meaning given in section 15 of the National Parks and Access to the Countryside Act 1949 (meaning of "nature reserve")(8);

"scheduled monument" means a monument that is included in the schedule of listed monuments maintained by Historic Environment Scotland under section 1(1) of the Ancient Monuments and Archaeological Areas Act 1979 (schedule of monuments)(9);

"special site" means a site designated as a special site under section 78C of the Environmental Protection Act 1990 (identification and designation of special sites)(10); and

"strategic development plan" has the meaning given in section 7(1) of the Town and Country Planning (Scotland) Act 1997(11).

Use or management of land

5.  The matters referred to in regulation 2(2)(c) and (3)(a) are-

(a)how the land and any buildings and other structure on the land are currently used or managed including-

(i)the extent to which the land, buildings or other structure are used or managed for lawful public recreation or leisure activities;

(ii)the extent to which the land is being held for the purpose of preserving or conserving the natural, historic or built environment;

(b)whether the land or any building or other structure on the land is being used or managed for the purpose of an activity that requires a permit or licence;

(c)the length of time that the land, buildings and structures have, as the case may be-

(i)been used or managed as identified under paragraphs (a) and (b); or

(ii)not been used or managed for any discernible purpose.

Harm to environmental wellbeing of a relevant community

6.-(1) The matters referred to in regulation 2(3)(b) are-

(a)whether the use or management of the land or any building or other structure on the land has resulted in or caused, directly or indirectly, a statutory nuisance;

(b)whether the land or any building or other structure on the land is subject to-

(i)a current closure notice issued under section 26 of the 2004 Act (authorisation of closure notices); or

(ii)a current closure order made under section 29 of the 2004 Act (closure orders);

(c)whether the use or management of the land or any building or other structure on the land has resulted in a warning notice being issued under section 44 of the 2004 Act (warning notices).

(2) In this regulation-

"2004 Act" means the Antisocial Behaviour etc. (Scotland) Act 2004(12); and

"statutory nuisance" means a statutory nuisance within the meaning of section 79(1) of the Environmental Protection Act 1990 (statutory nuisances and inspections therefor)(13).

Occupancy or possession that constitutes tenancy

7.-(1) The descriptions and classes of occupancy or possession which are, or are to be treated as, a tenancy for the purposes of section 97C(5)(a) of the Act are-

(a)occupation or possession of tied accommodation;

(b)occupation or possession under a licence agreement that is in the nature of a tenancy;

(c)occupancy or possession of residential accommodation-

(i)in connection with an individual's employment or education; and

(ii)in a building or structure that is owned or occupied by the employer or education provider;

(d)temporary occupancy or possession offered, on a night-by-night basis, to individuals who are homeless persons; and

(e)occupancy or possession by a liferenter.

(2) In this regulation-

"liferenter" means an individual who, by virtue of a liferent, has the right-

"tied accommodation" means accommodation provided to an individual by the individual's employer under a service occupancy agreement (that is, in return or part return for the performance by the individual of services under the employment agreement).

Ineligible land: land pertaining to land occupied by individual's home

8.  For the purposes of section 97C(5)(b) of the Act, eligible land does not include land pertaining to land of the type mentioned in section 97C(5)(a) of the Act if that land-

(a)forms the curtilage of the individual's home; or

(b)is used for one or more of the following purposes:-

(i)the storage of possessions owned by the occupants of the individual's home that are used for the maintenance, upkeep or subsistence of the individual's home or its occupants;

(ii)to store vehicles that are used by the occupants of the individual's home;

(iii)for drainage, water supply or provision of services such as media or electricity for the individual's home;

(iv)to grow food which is principally for the subsistence of the occupants of the individual's home;

(v)for activities including recreation and leisure activities which are incidental to the use of the individual's home;

(vi)to keep pets belonging to the occupants of the individual's home;

(vii)for businesses run by occupants of the individual's home;

(viii)for access to the individual's home, if the land is owned by the same person that owns the home.

Other ineligible land

9.-(1) For the purposes of section 97C(5)(f) of the Act, eligible land does not include land of the following descriptions or classes:-

(a)land that is held or used by a Minister of the Crown or government department (within the meaning of paragraph 3 of Part 1 of schedule 5 of the Scotland Act 1998)(14)); and

(b)land consisting of a right to petroleum, coal, gold or silver (whether or not owned separately from the land in respect of which it is exigible).

(2) In paragraph (1)(b)-

"coal" has the meaning given in section 65 of the Coal Industry Act 1994 (interpretation)(15) and, for the purposes of this regulation, references to coal include coal mines within the meaning given in that section; and

"petroleum" has the meaning given in section 1 of the Petroleum Act 1998 (meaning of "petroleum")(16).

Regulators

Prescribed regulators

10.  For the purposes of section 97H(5) of the Act (criteria for consent), "regulator" means any person, body or office holder that has a regulatory function in respect of-

(a)the harm, direct or indirect, that is alleged to result from or be caused by the use or management of the land; or

(b)the activity, or lack of activity, that is alleged to result in or cause the harm.

Restrictions on dealings in section 97G land while application pending

Restriction period

11.-(1) Regulations 12 to 14 apply during the restriction period being the period that-

(a)begins on the date on which a pending application made under section 97G of the Act appears on the Register of Applications by Community Bodies to Buy Land; and

(b)ends on the end date as determined in accordance with paragraph (2) or (3) as the case may be.

(2) If the Part 3A community body is refused consent to exercise the right to buy land, the end date is the earlier of-

(a)the day after the expiry of the time period specified in 97V(6) of the Act (appeals) for lodging an appeal against the decision on an application under section 97G of the Act, but only if no appeal is lodged within the appeal period; or

(b)the day on which the sheriff issues a decision in an appeal under section 97V of the Act, but only if the outcome of the appeal is that the Part 3A community body is refused consent to exercise the right to buy land.

(3) If the Part 3A community body is given consent to exercise the right to buy the land, the end date is the earliest of-

(a)the expiry of the period specified in section 97P(1) of the Act (confirmation of intention to proceed with purchase and withdrawal), but only if the Part 3A community body did not, within that period, notify Ministers and the owner of the land of its intention to proceed to buy the land;

(b)the day on which the owner of the land receives a copy of the Ministers' acknowledgement under section 97P(3) of the Act, but only if the matter acknowledged is the Part 3A community body's withdrawal of-

(i)its application under section 97G of the Act; or

(ii)its confirmation under section 97P(1) of the Act that it intends to proceed to buy the land;

(c)the day on which the Part 3A community body's application under section 97G in relation to the land is to be treated as withdrawn under section 97R(5) of the Act (completion of transfer);

(d)the day on which the consideration is paid in accordance with section 97R(2) or (3) of the Act provided that, on that day, the owner is able to effect the grant of a good and marketable title to the Part 3A community body; or

(e)the day on which, following the consignment of the consideration or estimate of what the consideration might be into the Lands Tribunal under section 97R(4) of the Act, the owner grants a good and marketable title to the Part 3A community body or the Part 3A community body gives notice to the Tribunal of its decision not to proceed to complete the transaction.

Certain dealings prohibited during restriction period

12.-(1) The following dealings are prohibited during the restriction period:-

(a)any transfer of section 97G land or land that includes any section 97G land;

(b)any action taken with a view to a transfer of land prohibited by sub-paragraph (a).

(2) For the purposes of paragraph (1)(b), action is taken with a view to a transfer of land when-

(a)the land is advertised or otherwise exposed for sale by or with the authority of the owner of the land or a creditor in a standard security with the right to sell the land;

(b)the owner or such a creditor, or a person acting on behalf of the owner or such a creditor, enters into negotiations with another with a view to the transfer of land; or

(c)the owner or such a creditor, or a person acting on behalf of the owner or such a creditor, proceeds further with any proposed transfer of the land which was initiated prior to the date on which the pending application appeared on the Register of Applications by Community Bodies to Buy Land.

(3) Paragraph (1) applies to any person who, but for the prohibition in paragraph (1), would be authorised to carry out a transaction or action referred to in that paragraph.

Exceptions to regulation 12

13.-(1) Subject to paragraph (2), regulation 12 does not prohibit the following dealings in section 97G land:-

(a)a transfer otherwise than for value;

(b)a transfer in implement or pursuance of an order of a court (other than an order under section 24 of the Conveyancing and Feudal Reform (Scotland) Act 1970(17) or a decree in an action for the division and sale of land);

(c)a transfer between spouses or civil partners in pursuance of an arrangement between them entered into at any time-

(i)after they have ceased living together; and

(ii)before Ministers have received the application under section 97G of the Act;

(d)a transfer between companies in the same group;

(e)a transfer to a statutory undertaker for the purpose of carrying on their undertaking;

(f)a transfer-

(i)implementing the compulsory acquisition of the land under an enactment;

(ii)by agreement, of land which could have been acquired compulsorily under an enactment;

(iii)implementing any right conferred by or under Part 2, 3 or 3A of the Act;

(iv)implementing missives for the sale and purchase of land, but only if, on the date that the missives were concluded, no application under section 97G of the Act was included in the register kept under section 52(1) of the Land Reform (Scotland) Act 2016 (register of applications by community bodies to buy land)(18);

(v)implementing an option to acquire land, but only if, on the date that the option was created, no application under section 97G of the Act was included in the register kept under section 52(1) of the Land Reform (Scotland) Act 2016;

(vi)vesting the land in a person for the purposes of any enactment relating to sequestration, bankruptcy, winding up or incapacity or to the purposes for which judicial factors may be appointed; or

(g)a transfer of land in consequence of-

(i)the assumption, resignation or death of one or more of the partners in a firm; or

(ii)the assumption, resignation or death of one or more of the trustees of a trust.

(2) The exceptions mentioned in paragraph (1)(a), (d) and (g), do not apply if-

(a)the transfer-

(i)is, or forms part of, a scheme or arrangement; or

(ii)is one of a series of transactions; and

(b)the main purpose or effect, or one of the main purposes or effects, of the scheme, arrangement or series of transactions is to avoid the requirements or consequences of regulation 12.

(3) In paragraph (1)(e), "statutory undertaker" is to be construed in accordance with section 214 of the Town and Country Planning (Scotland) Act 1997(meaning of statutory undertakers)(19).

Declaration required for transfers of section 97G land during restriction period

14.-(1) This regulation applies to any transfer of section 97G land during the restriction period, unless the transfer is to the Part 3A community body that made the application under section 97G of the Act.

(2) The transferor must incorporate in the deed giving effect to the transfer a declaration-

(a)specifying which exception under regulation 13(1) is being relied on to override the prohibition in regulation 12; and

(b)where the specified exception is an exception mentioned in regulation 13(1)(a), (d) or (g), stating that the exception is not negated by regulation 13(2).

Suspension of rights in and over land while transfer pending

Effect of right to buy on other rights

15.  Any right of pre-emption, redemption or reversion otherwise exercisable over section 97G land and any right or interest in section 97G land conferred under Part 2 of the Act is suspended for the duration of the restriction period as determined in accordance with regulation 11.

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations make provision in connection with the right to buy abandoned, neglected or detrimental land under Part 3A of the Land Reform (Scotland) Act 2003 ("the 2003 Act") as inserted by section 74 of the Community Empowerment (Scotland) Act 2015 ("the 2015 Act).

Regulation 2 sets out the matters that Ministers must have regard to when establishing whether land is eligible by reason of being abandoned, neglected or detrimental under Part 3A of the Land Reform (Scotland) Act 2003 ("the 2003 Act") as amended by the Community Empowerment (Scotland) Act 2015 ("the 2015 Act"). Those matters fall within four broad categories: the physical condition of the land; the designation or classification of the land; the use or management of the land and whether the condition of the land is such that it is causing harm to the environmental wellbeing of the relevant community.

Regulation 3 sets out in detail what matters Ministers must have regard to when assessing the physical condition of the land in relation to whether the land is abandoned or neglected. The matters include the physical condition of the land, the length of time that it has been in that condition, the extent to which the condition affects public safety or adjacent land and whether the condition is causing environmental harm.

Regulation 4 sets out in detail what matters Ministers must have regard to when assessing the designation or classification of the land in relation to whether the land is abandoned or neglected. The matters include whether the land is part of a nature reserve, a conservation area, includes a listed building or a special monument, is a designated special site or is subject to any policies or proposals contained in a local development plan or guidance, strategic plan or guidance or the National Planning Framework 3.

Regulation 5 sets out in detail what matters Ministers must have regard to when assessing the use or management of the land in relation to whether the land is abandoned, neglected or detrimental. The matters include whether the current use or management is for lawful purposes, whether the land is being held to preserve the natural, historic or built environment, and whether it is being held for the purposes of an activity that requires a licence.

Regulation 6 sets out in detail what matters Ministers must have regard to when assessing whether there is harm to the environmental wellbeing of the community. The matters are whether the use or management of the land is causing a statutory nuisance or is subject to a closure order or warning notice.

Under section 97C(5)(a) of the 2003 Act, land on which there is a building or structure which is an individual's home is ineligible unless it is occupied by an individual under a tenancy. Regulation 7 sets out types of occupation or possession that are, or are to be treated as a tenancy for the purposes of section 97C(5)(a) of the 2003 Act. These are tied accommodation, occupation under a licence agreement that is in the nature of a tenancy, residential accommodation relating to employment or education, temporary accommodation provided to homeless persons or occupation or possession under a liferent.

Regulation 8 sets out land that pertains to an individual's home which is ineligible under the right to buy abandoned, neglected or detrimental land. This includes land that forms the curtilage of the home and land used for the following purposes:- storage of possessions owned by the occupants of the home and that are used for the maintenance, upkeep or subsistence of the home or its occupants; storage of vehicles used by the occupants of the home; drainage, water supply or provision of services such as media or electricity for the home; to grow food which is principally for the subsistence of the occupants of the home; for activities including recreation and leisure activities which are incidental to the use of the home; to keep pets belonging to the occupants of the home; for businesses run by occupants of the home; and for access to the home, if the land is owned by the same person that owns the home.

Regulation 9 sets out other ineligible land being land which is held or used by a Minister of the Crown or government department and land consisting of rights in relation to petroleum, coal, gold or silver.

Under section 97H(5)(b) of the 2003 Act, before an application is submitted under section 97C(2)(b) of the Act, a Part 3A community body must have made a request to any relevant regulator(s) to take action in relation to the land in exercise of its (or their) relevant regulatory functions if that action could, or might reasonably, be expected to remedy or mitigate the harm being caused by the detrimental land. Regulation 10 defines a "relevant regulator" as being a person, body or office holder who has a regulatory function which could address the harm (or the action which is causing the harm).

Regulation 11 sets out the period of time during which a landowner is prohibited from transferring or taking action with a view to transferring their land ("the restriction period"). The restriction period begins on the date on which a pending application made under section 97G appears on the Register of Applications by Community Bodies to Buy Land and ends on the earliest of the following:-

• on the day after the expiry of the time in which an appeal can be lodged under section 97V(6) of the 2003 Act but only where there is no appeal against a Ministerial decision to allow the application;

• where there is an appeal, the day on which the sheriff issues a decision but only if the decision is in favour of an appeal against a Ministerial decision to allow the application;

• the expiry of the period provided under section 97P(1) of the 2003 Act allowed for the Part 3A community body to inform Ministers that they wish to proceed with the purchase after being given consent to do so but only if the Part 3A community body did not notify Ministers and the owner of the land of its intention to proceed to buy the land;

• the day on which the owner of the land receives a copy of the Ministers' acknowledgement under section 97P(3) of the Act that the Part 3A community body has withdrawn their application or confirmed to Ministers that they do not wish to proceed;

• the day on which the Part 3A community body's application is treated as withdrawn under section 97R(5) of the Act;

• the day on which the consideration is paid by the Part 3A community body provided that, on that day, the owner is able to effect the grant of a good and marketable title to the Part 3A community body or

• the day on which, following the consignment of the consideration or estimate of what the consideration might be it to the Lands Tribunal under section 97R(4) of the Act, the owner grants a good and marketable title to the Part 3A community body or the Part 3A community body gives notice to the Tribunal of its decision not to proceed to complete the transaction.

Regulation 12 sets out what is prohibited during the restriction period set out under regulation 11. The prohibition applies to any transfer of land that forms the subject of an application under section 97G of the 2003 Act or any action taken with a view to transfer such land. Action is taken with a view to transfer land when it is advertised or otherwise exposed for sale, the owner or such a creditor or person acting on behalf the owner enters into negotiations with a view to transfer the land or such person proceeds further with a proposed transfer which was initiated prior to the date on which the interest in the land was registered.

Regulation 13 sets out exceptions to the actions prohibited under regulation 12. These include the following transfers, a transfer:-

• other than for value (e.g. a gift);

• implementing a court order;

• between spouses or civil partners after they have ceased living together (as long as the arrangement was agreed before the application was received);

• between companies in the same group;

• to a statutory undertaker for the purposes of carrying out that undertaking;

• as part of a compulsory purchase;

• as a result of a Part 2, 3 or 3A of this Act;

• implementing missives (only if the missives were signed prior to the application being made);

• implementing an option agreement (only if that agreement was created prior to the application being received);

• as part of a sequestration or bankruptcy; and

• as the result of the death of either a partner of a firm or the trustee of a trust.

Where a transfer that is otherwise than for value, between companies or on the assumption or resignation or death of one or more partners in a firm or of the trustees in a trust is part of a scheme of transfer or is one of a series of transactions, the main purpose or effect of which is to avoid regulation 12, it is not excluded under regulation 13 and therefore remains prohibited.

Regulation 14 requires that where an owner is transferring their land during the prohibition period they must include in the deed giving effect to the transfer a declaration stating which exception set out in regulation 13 they are relying on and, where a transfer that is otherwise than for value, between companies or on the assumption or resignation or death of one or more partners in a firm or of the trustees in a trust that the transfer does not form part of a scheme of transfer or a series of transactions such that it remains prohibited.

Regulation 15 provides that any right of pre-emption, redemption or reversion and any rights or interest in land conferred under Part 2 of the 2003 Act are suspended from the date on which a pending application made under section 97G of the 2003 Act appears in the Register of Applications by Community Bodies to Buy Land and ends on the earliest of the dates specified in regulation 11 (the restriction period).