Community Empowerment (Scotland) Bill Consultation

4. Transparency of Common Good Land

Common good land belongs to local authorities and only occurs in former burghs. Accordingly this theme is only relevant to groups either currently using or with ambitions to use Council land within a historic burgh. Establishing whether or not a given parcel of land or building is common good land is very difficult. If an area of land or a building is a common good asset, there are two practical consequences. The first is that in administering it, the Council must have regard to the interests of the inhabitants of the area to which the common good related. The second is that in some cases there may be barriers to the Council selling or leasing the land on a long term lease. These are factors which may be relevant where a community group is already on, or has its sights on, such an area of land.

It is proposed that local authorities should be required to create public registers of the common good land in their areas. These may highlight areas that are suitable for community gardening use, but also highlight that there are special considerations to take into account when negotiating with the Council. It is also proposed that there should be greater involvement of the community where a local authority proposes to dispose of such land. See consultation document paragraphs 41 to 47 and question 14.

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On 6/11/2013 Scottish Government issued a consultation on the proposed Community Empowerment (Scotland) Bill. A “Bill” is a draft Act of Parliament. The Scottish Government’s intention is that, following this consultation, the Bill will be introduced into and debated by the Scottish Parliament. If the Parliament enact (pass) it, it will become statute law. The consultation is open for responses until 24 January 2014 and can be accessed here – http://www.scotland.gov.uk/Publications/2013/11/5740

The consultation document covers 11 separate major themes and poses 71 consultation questions. Details of how to respond are given below. Of those themes, 5 are likely to be significant to Federation members. These 5, and the relevant paragraphs of the consultation document and consultation questions, are as follows –

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1. Community Asset Transfer Request

It is proposed that community bodies be given a right to request that public bodies, such as local authorities, transfer assets (such as land or buildings) to them. The public body would then be required to assess the request on the basis of best public benefit; if they agree with the request this would trigger a process for transfer of the asset to the community body. Draft Bill clauses have been provided for comment (sections 1 to 10 of the draft Bill annexed to the consultation document.)

The main issues are likely to be

(a) is the definition of community body too restrictive? The draft Bill currently requires that it be a company limited by guarantee with specific lock provisions in its articles of association. Should SCIOs, Industrial and Provident Societies, CICs limited by shares and unincorporated voluntary organisations also have this right?

(b) Is the list of public bodies too restricted – note that it doesn’t include any public landowners whose roles are out with the devolved powers of the Scottish Parliament, for example the Crown or Network Rail.

(c) Is the proposed process realistic in terms of timescales for a community body raising the purchase price?

See consultation document paragraphs 25 to 30 and questions 1, 2 and 3

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2. Extended Pre-Emptive Community Right to Buy

Since 2004 rural communities with populations of less than 10,000 have been able to apply for a “pre-emptive” right to buy land and buildings relevant to their community. This means a right to be the purchaser, at market value, whenever in future the landowner decides to sell the land, not an immediate right to buy at a time that suits the community. The application for the right to buy is made to Scottish Government and needs to present a case for community ownership. Where Government Ministers are satisfied that community ownership would be in the public interest, they will give the community group the pre-emptive right to buy.

It is suggested that this right could be extended to all communities in Scotland, including urban communities. The overall discussion of this topic occupies consultation document paragraphs 54 to 70 and 74 to 133 and consultation questions 18 and 21 to 51 inclusive. However some of the detailed discussion and questions are likely to be quite confusing for readers who have not had any involvement in a rural community buy-out under the existing law.

Important issues for consideration include

(a) should the right be extended to all parts of Scotland (paragraphs 66 and 67 and question 17);

(b) how is a community defined in an urban context (paragraphs 68 and 95 to 97 and questions 32 and 33);

(c) what types of structure should eligible community bodies be permitted to have (paragraphs 98 to 101 and questions 34 to 36);

(d) how fair is the process for valuing the land (paragraphs 110 and 111 and question 39);

(e) how would such community buy-outs be funded – the existing rural buy-outs have mainly been funded by the Scottish Land Fund (touched on in paragraph 11 but not further discussed); and

(f) If community bodies require to raise some or all of their own funding, are the suggested timescales realistic, and would a longer timescale be fair to the landowner? (paragraphs 86 to 88 and question 29).

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3. Absolute Right to Buy Neglected and Abandoned Land

The Scottish Government is also seeking views on the proposal that communities might be given an absolute right to buy neglected or abandoned land. How the concept of abandoned or neglected land would be defined is a major issue, as are the implications for the landowner’s human rights. See consultation document paragraphs 71 to 73 and questions 19 and 20.

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4. Allotments

A number of changes to allotment law are suggested. The proposals seem generally sensible, but it is important that plot holders and allotment associations look at them and respond to the consultation questions. A new statutory definition of an allotment plot is proposed with size limits – current holders of very large or very small plots should respond to this. Sensible proposals are made to force local authorities to create new allotment sites in response to public demand. A proposal for a local authority regulation-making power appears sensible but insofar as it relates to huts and polytunnels might benefit from being tied into permitted development for planning purposes. It is proposed that sale of surplus produce would be allowed for the first time, with the proceeds going to the community. The application of some of the proposals to private allotments warrants consideration.

See consultation document paragraphs 168 to 181 and consultation questions 61 to 69.

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4. Transparency of Common Good Land

Common good land belongs to local authorities and only occurs in former burghs. Accordingly this theme is only relevant to groups either currently using or with ambitions to use Council land within a historic burgh. Establishing whether or not a given parcel of land or building is common good land is very difficult. If an area of land or a building is a common good asset, there are two practical consequences. The first is that in administering it, the Council must have regard to the interests of the inhabitants of the area to which the common good related. The second is that in some cases there may be barriers to the Council selling or leasing the land on a long term lease. These are factors which may be relevant where a community group is already on, or has its sights on, such an area of land.

It is proposed that local authorities should be required to create public registers of the common good land in their areas. These may highlight areas that are suitable for community gardening use, but also highlight that there are special considerations to take into account when negotiating with the Council. It is also proposed that there should be greater involvement of the community where a local authority proposes to dispose of such land. See consultation document paragraphs 41 to 47 and question 14.

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Other topics in the consultation document

The six further topics which are of lesser relevance are (a) a proposed community right to participate in processes to improve outcomes in public sector service delivery; (b) better powers for local authorities to recover money spent on dangerous buildings; (c) strengthening community planning; (d) discussion about non-domestic rates and water charges (which are not being consulted upon in this exercise); (e) a proposal to put the Scottish Government’s strategic outcomes onto a statutory footing and (f) a very general final consultation question about subsidiarity and local democracy.

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Responding to the consultation

Responses to the consultation can be made online at

https://consult.scotland.gov.uk/community-empowerment-unit/cerb/consultation

Alternatively, the three-part consultation questionnaire and associated respondent information form can be down loaded on the link below and then submitted by either email or post

http://www.scotland.gov.uk/Publications/2013/11/5740/downloads

The closing date for responses is 24 January 2014.