Critique of ‘Community right to buy’
It is not the purpose of this Briefing to propose detailed recommendations for changes in the Act – this can only be done after further discussion and debate. However, some broad recommendations can be made.
Guiding all such recommendations is the proposition that the Act should be
• that the process of making an application be made less bureaucratic; and ,
• that the discretionary powers of Ministers be substantially curtailed.
Some broad recommendations are as follows.
• Extend the extent of eligible land to incorporate all of Scotland by including urban
settlements of over 10,000 population
• Eliminate most of the areas of Ministerial discretion
• Make the formation of community body formation more flexible.
• Simplify how communities are defined (line on a map rather than complex postcodes)
• Remove the requirement to make separate applications for each parcel of land held in separate ownership20
• Move the administration of the Act to Communities Scotland in the short term and in the longer term to local government.
• Convert late registration procedures to a simple pre-emption right
(This has led to the ridiculous situation recently where on 1 November 2006, Kinghorn Community Land Association 2005 made an application to register an interest in land surrounding Kinghorn Loch. Because the land was owned by different owners they had to prepare and submit 18 separate applications (CB00049 – CB00066).)
• redraft the appeal provisions to make clear that the substance of Ministerial decisions can be challenged in the Sheriff Court. Ministers have announced that they will review the Act during 2007. You are encouraged to participate in this review.
(The ruling by Sheriff McSherry in the case of Holmehill Ltd. vs. Scottish Ministers concluded that Ministerial discretion is ‘best left to elected representatives such as the Scottish Ministers, who are in possession of relevant information and who are charged with exercising such discretion in respect of late applications made throughout Scotland in terms of section 39.’ This ruling effectively rendered the appeal provisions of the Act worthless unless in cases of gross wrong decision making.)