Community Right to Buy Regulations

The Community Right to Buy provisions contained in Part 2 of the Land Reform (Scotland) Act 2003, came into force on 14 June 2004. If a community wishes to register an interest in land they can apply to Scottish Ministers to do so and, if accepted, the land cannot be sold without them having a first refusal on its acquisition. The registration lasts for 5 years.

With 14 June 2009 fast approaching, it is necessary to have some way of renewing and extending a registered interest in place. When all of this was discussed more than 5 years ago, it was generally agreed that some kind of simple “light touch” mechanism would be introduced. This would allow communities to validate their existing registration, make any changes that were needed (addresses of office-bearers etc.) and have it reaffirmed by Scottish Ministers as valid for a further 5 years. Indeed in the Scottish government’s own guidance notes which were last modified on 23 April 2009 state, on page 17 in para. 50

50. We do not expect the renewal process to be burdensome, but it is important to ensure that the initial serious intent to purchase the registered land remains, and you will therefore be required to complete the Renewal of Registration application form. As renewal will not be required within 4 years of commencement, a form will be made available in due course. It is expected at this stage that there will be no major changes to your company’s memorandum or articles of association, as these should have been approved by Ministers under section 35(1) of the Act prior to amending. To simplify this process, you should highlight any changes clearly on the renewal form. Ministers will then consider whether your application continues to meet the criteria set out in section 38 and, if content, instruct the Keeper to renew your registered interest for a further 5 years.

The Act makes clear that an application for re-registration needs to be made under Section 37 which is the Section outlining how an application is to be made. Exactly how it is to be done is the subject of what is called Secondary legislation otherwise known as Scottish Statutory instruments. In other words, the Act does not specify how apllications are to be made. This is left to Secondary Legislation. Thus there is complete discretion open to Scottish ministers to determine the nature of the re-registration process.

Yesterday, I received an email alert from the Scottish Parliament outlining the week’s business. I often don’t have time to scan this but yesterday I did and noted that the Rural Affairs and Environment Committee would be scrutinising new regulations on the community right to buy on Wednesday 13 May. You can download a copy of the the new regulations here and a copy of the Executive Notes here. The reason why these new regulations are being proposed is, as para. 3 of the Notes makes clear, to provide for the re-registration process.

What is worrying about all of this is that the Scottish Government is proposing that the process for making an application for re-registration should be THE SAME AS THE PROCEDURE FOR MAKING AN INITIAL APPLICATION. In other words, a community with a registered interest, has to go through the whole exhausting, cumbersome, complex and time-consuming process as they did 5 years previously simply to secure an extension.

This is madness and completely flies in the face of the position of 5 years ago as reflected above in the existing guidance. it will make the process of re-registration a nightmare for many communities and will deter others from even bothering. The Act is clear that it is for Ministers to determine the exact nature of the process for re-registration and thus a simple process of re-validation is open to them.

What makes the Scottish Government’s position on this even more disreputable is the claim that no consultation is necessary. Here is para. 8 of the Executive Note

Consultation

8. Detailed proposals for the 2004 Regulations were first set out in the White Paper “Land reform – proposals for legislation”, published in July 1999, and were then made available during November 2003. Since the 2004 Regulations came into force, no new policy concerns have been raised. As these Regulations enable the continuance of registrations which would otherwise expire after five years, and do not impose any new requirements on community bodies in addition to those which are required for registration, It is not considered necessary to undertake a further consultation exercise. Community bodies which wish to re-register their community interest in land are already aware of, and have complied with, the requirements for registration.

What is particularly galling about this statement is the claim that, since 2004, “no new policy concerns have been raised”. This is piffle. Since 2004, there have been a steady stream of dissatisfied communities whose efforts in trying to make the legislation work for them have been thwarted by legal actions, incompetence by civil servants, and the complex rules that have to be followed. I myself, published a 2 year critique of the Act which highlighted some of these concerns.

I have emailed MSPs on the Committee and asked them to take a close look at this. The regulations take the form of a “Negative Instrument” which means that they will pass into law unless there is a motion proposed by an MSP to annul them. I am not sure this has ever been done before.

In any event, I trust that these Regulations will be binned as they make an already complex piece of legislation even more impenetrable.