Land Reform (Scotland) Act 2003

2003 asp 2

The Bill for this Act of the Scottish Parliament was passed by the Parliament on 23rd January 2003 and received Royal Assent on 25th February 2003

An Act of the Scottish Parliament to establish statutory public rights of access to land for recreational and other purposes, and to extend some of the provisions for that purpose to rights of way and other rights; to make provision under which bodies representing rural and crofting communities may buy the land with which those communities have a connection; and for connected purposes.

Part 1 S Access rights

Chapter 1 S Nature and extent of access rights

1 Access rights S

(1) Everyone has the statutory rights established by this Part of this Act.

(2) Those rights (in this Part of this Act called “access rights”) are—

(a) the right to be, for any of the purposes set out in subsection (3) below, on land; and

(b) the right to cross land.

(3) The right set out in subsection (2)(a) above may be exercised only—

(a) for recreational purposes;

(b) for the purposes of carrying on a relevant educational activity; or

(c) for the purposes of carrying on, commercially or for profit, an activity which the person exercising the right could carry on otherwise than commercially or for profit.

(4) The reference—

(a) in subsection (2)(a) above to being on land for any of the purposes set out in subsection (3) above is a reference to—

(i) going into, passing over and remaining on it for any of those purposes and then leaving it; or

(ii) any combination of those;

(b) in subsection (2)(b) above to crossing land is a reference to going into it, passing over it and leaving it all for the purpose of getting from one place outside the land to another such place.

(5) A “relevant educational activity” is, for the purposes of subsection (3) above, an activity which is carried on by a person for the purposes of—

(a) furthering the person’s understanding of natural or cultural heritage; or

(b) enabling or assisting other persons to further their understanding of natural or cultural heritage.

(6) Access rights are exercisable above and below (as well as on) the surface of the land.

(7) The land in respect of which access rights are exercisable is all land except that specified in or under section 6 below.

Modifications etc. (not altering text)

C1 S. 1 excluded (1.7.2005) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 131(1)(c), 178; S.I. 2005/1521, art. 3(n)

2 Access rights to be exercised responsibly S

(1) A person has access rights only if they are exercised responsibly.

(2) In determining whether access rights are exercised responsibly a person is to be presumed to be exercising access rights responsibly if they are exercised so as not to cause unreasonable interference with any of the rights (whether access rights, rights associated with the ownership of land or any others) of any other person, but—

(a) a person purporting to exercise access rights who, at the same time—

(i) engages in any of the conduct within section 9 below or within any byelaw made under section 12(1)(a)(i) below; or

(ii) does anything which undoes anything done by Scottish Natural Heritage under section 29 below,

is to be taken as not exercising those rights responsibly; and

(b) regard is to be had to whether the person exercising or purporting to exercise access rights is, at the same time—

(i) disregarding the guidance on responsible conduct set out in the Access Code and incumbent on persons exercising access rights; or

(ii) disregarding any request included or which might reasonably be implied in anything done by Scottish Natural Heritage under section 29 below.

(3) In this section the references to the responsible exercise of access rights are references to the exercise of these rights in a way which is lawful and reasonable and takes proper account of the interests of others and of the features of the land in respect of which the rights are exercised.

3 Reciprocal obligations of owners S

(1) It is the duty of every owner of land in respect of which access rights are exercisable—

(a) to use and manage the land; and

(b) otherwise to conduct the ownership of it,

in a way which, as respects those rights, is responsible.

(2) In determining whether the way in which land is used, managed or the ownership of it is conducted is responsible an owner is to be presumed to be using, managing and conducting the ownership of land in a way which is responsible if it does not cause unreasonable interference with the access rights of any person exercising or seeking to exercise them, but—

(a) an owner who contravenes section 14(1) or (3) or 23(2) of this Act or any byelaw made under section 12(1)(a)(ii) below is to be taken as not using, managing or conducting the ownership of the land in a responsible way;

(b) regard is to be had to whether any act or omission occurring in the use, management or conduct of the ownership of the land disregards the guidance on responsible conduct set out in the Access Code and incumbent on the owners of land.

(3) In this section the references to the use, management and conduct of the ownership of land in a way which is responsible are references to the use, management and conduct of the ownership of it in a way which is lawful and reasonable and takes proper account of the interests of persons exercising or seeking to exercise access rights.

4 Modification of sections 9, 14 and 23 S

(1) Ministers may by order modify, for the purposes of section 2 and 3 above, any of the provisions of sections 9, 14 and 23 below.

(2) They may do so generally (that is to say in terms similar to those in sections 2 and 3 above as enacted) or by making provision which relates to particular areas, locations or classes of land or to particular access rights or particular activities which may take place in the exercise of access rights or to particular ways of using, managing or conducting the ownership of land or any combination of those.

(3) Before doing so, they shall consult such persons whom they consider to have a particular interest in the effect of the proposed modification (or associations representing such persons) and such other persons as they think fit.

5 Access rights, reciprocal obligations and other rules and rights S

(1) The exercise of access rights does not of itself constitute trespass.

(2) The extent of the duty of care owed by an occupier of land to another person present on the land is not, subject to section 22(4) below, affected by this Part of this Act or by its operation.

(3) The existence or exercise of access rights does not diminish or displace any other rights (whether public or private) of entry, way, passage or access.

(4) The existence or exercise of access rights does not diminish or displace any public rights under the guardianship of the Crown in relation to the foreshore.

(5) The exercise of access rights does not of itself amount to the exercise or possession of any right for the purpose of any enactment or rule of law relating to the circumstances in which a right of way or servitude or right of public navigation may be constituted.

(6) Access rights do not constitute a public right of passage for the purposes of the definition of “road” in section 151(1) (interpretation) of the Roads (Scotland) Act 1984 (c. 54).

(7) A person exercising access rights is to be regarded as being in a public place for the purposes of section 53 (obstruction by pedestrians) of the Civic Government (Scotland) Act 1982 (c. 45).

Chapter 2 S Nature and extent of access rights: further provisions

6 Land over which access rights not exercisable S

(1) The land in respect of which access rights are not exercisable is land—

(a) to the extent that there is on it—

(i) a building or other structure or works, plant or fixed machinery;

(ii) a caravan, tent or other place affording a person privacy or shelter;

(b) which—

(i) forms the curtilage of a building which is not a house or of a group of buildings none of which is a house;

(ii) forms a compound or other enclosure containing any such structure, works, plant or fixed machinery as is referred to in paragraph (a)(i) above;

(iii) consists of land contiguous to and used for the purposes of a school; or

(iv) comprises, in relation to a house or any of the places mentioned in paragraph (a)(ii) above, sufficient adjacent land to enable persons living there to have reasonable measures of privacy in that house or place and to ensure that their enjoyment of that house or place is not unreasonably disturbed;

(c) to which, not being land within paragraph (b)(iv) above, two or more persons have rights in common and which is used by those persons as a private garden;

(d) to which public access is, by or under any enactment other than this Act, prohibited, excluded or restricted;

(e) which has been developed or set out—

(i) as a sports or playing field; or

(ii) for a particular recreational purpose;

(f) to which—

(i) for not fewer than 90 days in the year ending on 31st January 2001, members of the public were admitted only on payment; and

(ii) after that date, and for not fewer than 90 days in each year beginning on 1st February 2001, members of the public are, or are to be, so admitted;

(g) on which—

(i) building, civil engineering or demolition works; or

(ii) works being carried out by a statutory undertaker for the purposes of the undertaking,

are being carried out;

(h) which is used for the working of minerals by surface workings (including quarrying);

(i) in which crops have been sown or are growing;

(j) which has been specified in an order under section 11 or in byelaws under section 12 below as land in respect of which access rights are not exercisable.

(2) For the purposes of subsection (1)(a)(i) above, a bridge, tunnel, causeway, launching site, groyne, weir, boulder weir, embankment of a canalised waterway, fence, wall or anything designed to facilitate passage is not to be regarded as a structure.

7 Provisions supplementing and qualifying section 6 S

(1) Section 6 above does not prevent or restrict the exercise of access rights over any land which is a core path [F1 unless it is land—.

(a) to which public access is prohibited or restricted by or under any enactment in consequence of an outbreak of animal disease; or

(b) in respect of which access rights are not exercisable, having been specified (whether as part of a larger area or not) in an order under section 11]

(2) Land which bears to be within section 6 above by virtue of a development or change of use for which planning permission was or is required under the Town and Country Planning (Scotland) Act 1997 (c. 8) shall, if—

(a) such planning permission has not been granted; or

(b) such permission was granted subject to a condition which has not been complied with,

be regarded, for the purposes of that section, as if that development or change of use had not occurred.

(3) Where planning permission for such a development or change of use of land has been granted, the land shall, for the purposes of section 6 above, be regarded, while that development or change of use is taking place in accordance with the permission, as having been developed or having had its use changed accordingly.

(4) In section 6(1)(b)(iii) above, “school” means not only a school within the meaning of section 135(1) of the Education (Scotland) Act 1980 (c. 44) but also any other institution which provides education for children below school age within the meaning of that provision.

(5) There are included among the factors which go to determine what extent of land is sufficient for the purposes mentioned in section 6(1)(b)(iv) above, the location and other characteristics of the house or other place.

(6) For the purposes of section 6(1)(d) above, access rights do not extend to the land to which public access is prohibited, excluded or restricted only to the extent of the prohibition, exclusion or restriction.

(7) Section 6(1)(e) above prevents the exercise of access rights over land to which it applies only if—

(a) the land is being used for the purpose for which it has been developed or set out and, in the case of land which is not a sports or playing field, the exercise of those rights would interfere with the recreational use to which the land is being put;

(b) the land is a golf green, bowling green, cricket square, lawn tennis court or other similar area on which grass is grown and prepared for a particular recreational purpose; or

(c) in the case of land which is a sports or playing field, the surface of the land is comprised of synthetic grass, acrylic, resin or rubber granule.

(8) For the purposes of section 6(1)(e) above, land which has been developed or set out for a particular recreational purpose does not include land on which groynes have been constructed, deepening of pools has been undertaken, fishing platforms have been erected, or where other works for the purposes of fishing have taken place.

(9) Section 6(1)(f) above does not prevent or restrict the exercise of access rights over land to which it applies by any person who forms part of a class of persons who are not, on the days taken into account for the purposes of determining whether that provision applies in relation to the land, required to pay to gain admittance to the land.

(10) For the purposes of section 6(1)(i) above land on which crops are growing—

(a) includes land on which grass is being grown for hay and silage which is at such a late stage of growth that it is likely to be damaged by the exercise of access rights in respect of the land in which it is growing, but otherwise does not include grassland;

(b) does not include headrigs, endrigs or other margins of fields in which crops are growing,

[F2 (c) does not include land used wholly or mainly–

(i) as woodland or an orchard, or

(ii) for the growing of trees;

but does include land used wholly for the cultivation of tree seedlings in beds,] and “crops” means plants which are cultivated for agricultural, F3 ... or commercial purposes.

Textual Amendments

F1 Words in s. 7(1) inserted (20.12.2013) by The Land Reform (Scotland) Act 2003 (Modification) Order 2013 (S.S.I. 2013/356), arts. 1, 2

F2 S. 7(10)(c) and words inserted (9.2.2005) by The Land Reform (Scotland) Act 2003 (Modification) Order 2005 (S.S.I. 2005/65), art. 2(a)

F3 Word deleted (9.2.2005) by The Land Reform (Scotland) Act 2003 (Modification) Order 2005 (S.S.I. 2005/65), art. 2(b)

8 Adjustment of land excluded from access rights S

(1) Ministers may by order modify any of the provisions of section 6 and 7 above.

(2) They may do so generally (that is to say, in terms similar to those in sections 6 and 7 above as enacted) or by making provision which relates to particular areas, locations or classes of land.

(3) Before doing so, they shall consult such persons whom they consider to have a particular interest in the effect of the proposed modification (or associations representing such persons) and such other persons as they think fit.

9 Conduct excluded from access rights S

The conduct which is within this section is—

(a) being on or crossing land in breach of an interdict or other order of a court;

(b) being on or crossing land for the purpose of doing anything which is an offence or a breach of an interdict or other order of a court;

(c) hunting, shooting or fishing;

(d) being on or crossing land while responsible for a dog or other animal which is not under proper control;

(e) being on or crossing land for the purpose of taking away, for commercial purposes or for profit, anything in or on the land;

(f) being on or crossing land in or with a motorised vehicle or vessel (other than a vehicle or vessel which has been constructed or adapted for use by a person who has a disability and which is being used by such a person);

(g) being, for any of the purposes set out in section 1(3) above, on land which is a golf course.

Chapter 3 S The Scottish Outdoor Access Code

10 The Scottish Outdoor Access Code S

(1) It is the duty of Scottish Natural Heritage to draw up and issue a code, to be known as the Scottish Outdoor Access Code, setting out, in relation to access rights, guidance as to the circumstances in which—

(a) those exercising these rights are to be regarded as doing so in a way which is or is not responsible;

(b) persons are to be regarded as carrying on activities, otherwise than in the course of exercising access rights, in a way which is likely to affect the exercise of these rights by other persons;

(c) owners of land in respect of which these rights are exercisable are to be regarded as using and managing, or otherwise conducting the ownership of it, in a way which is or is not responsible;

(d) owners of land in respect of which these rights are not exercisable are to be regarded as using and managing, or otherwise conducting the ownership of it, in a way which is likely to affect the exercise of these rights on land which is contiguous to that land.

(2) Scottish Natural Heritage shall consult local authorities and such other persons or bodies as they think appropriate about the proposed Access Code and then submit it (with or without modifications) to Ministers together with copies of any objections or representations made in response to that consultation.

(3) On receiving a proposed Access Code, Ministers may—

(a) approve it, with or without modifications; or

(b) reject it.

(4) Where Ministers reject a proposed Access Code under subsection (3)(b) above they may either instruct Scottish Natural Heritage to submit a new Code or they may substitute a Code of their own devising.

(5) Where Ministers approve an Access Code with or without modification under subsection (3)(a) above or devise a Code themselves under subsection (4) above, they shall lay the proposed Code before the Scottish Parliament and Scottish Natural Heritage shall not issue the Code unless it has been approved by resolution of the Parliament.

(6) The Access Code comes into operation on such date as Ministers fix.

(7) It is the duty of—

(a) Scottish Natural Heritage and local authorities to publicise the Access Code;

(b) Scottish Natural Heritage to promote understanding of it.

(8) Scottish Natural Heritage shall keep the Access Code under review and may modify it from time to time.

(9) In reviewing the Access Code, Scottish Natural Heritage shall consult such persons or bodies as they think appropriate about the operation of the Code.

(10) Subsections (2) to (6) above apply to modifications of the Access Code as they apply to the Code.

Chapter 4 S Regulation and protection of access rights

11 Power to exempt particular land from access rights S

(1) The local authority may (whether on application made to them or not) by order under this section made in respect of a particular area of land specified in the order exempt it for a particular purpose specified in the order from the access rights which would otherwise be exercisable in respect of it during such times as may be specified in the order.

(2) Before making an order under this section which would have effect for a period of six or more days, the local authority shall—

(a) consult the owner of the land to which it would relate, the local access forum established by them and such other persons as they think appropriate; and

(b) give public notice of the intended purpose and effect of the proposed order,

inviting objections to be sent to them within such reasonable time as is specified in the notice; and shall consider any such objections and any other representations made to them.

(3) An order under this section which would have effect for such a period requires confirmation by Ministers.

(4) It is the duty of the local authority to send to Ministers—

(a) copies of any objections made in response to the invitation under subsection (2) above; and

(b) any other representations made to them,

in relation to an order requiring such confirmation.

(5) Ministers—

(a) shall not confirm such an order without considering any objections or representations sent to them under subsection (4) above; and

(b) may cause an inquiry to be held for the purposes of enabling them to decide whether to confirm the order.

(6) Subsections (2) to (13) of section 265 (local inquiries) of the Town and Country Planning (Scotland) Act 1997 (c. 8) apply to an inquiry held under subsection (5)(b) above as they apply to one held under that section.

(7) Ministers may—

(a) confirm the order, with or without modifications; or

(b) refuse to confirm it.

(8) An order under this section takes effect—

(a) where the order does not require to be confirmed by Ministers, from the date on which it is made or such other date as may be specified in it for the purpose; or

(b) where the order requires to be so confirmed, from such date as is specified in it for the purpose or such other date as Ministers may direct when confirming it.

(9) The local authority shall give public notice of their making an order under this section as soon as practicable after it is made or, where the order requires to be confirmed by Ministers, the authority receive notice of such confirmation.

(10) The power of a local authority to make an order under this section includes power to revoke, amend or re-enact any such order.

(11) Where a revoked, amended or re-enacted order would—

(a) but for the revocation or amendment; or, as the case may be

(b) by virtue of the amendment or re-enactment,

have effect for a period of six or more days beginning on or after the date on which it is revoked, amended or re-enacted, subsections (2) to (9) above apply in relation to the revocation, amendment or, as the case may be, re-enactment.

(12) An order under this section has effect, subject to subsection (13) below—

(a) for the period of two years beginning on the day on which the order takes effect;

(b) where the order specifies that it is to cease to have effect for such shorter period as may be specified in the order, for that shorter period; or

(c) where the order is revoked with effect from a day which falls before the end of that period or, as the case may be, that shorter period, until that day.

(13) If, at any time before an order under this section ceases to have effect, the local authority which made the order re-enacts it, the order continues to have effect—

(a) for the period of two years beginning on the day on which the order would otherwise have ceased to have effect under subsection (12)(a) or (b) above (or, as the case may be, under this paragraph or paragraph (b) below);

(b) where the order (as amended or re-enacted) specifies that it is to cease to have effect for such shorter period as may be specified in the order, for that shorter period; or

(c) where the order is revoked with effect from a day which falls before the end of that period or, as the case may be, that shorter period, until that day.

12 Byelaws in relation to land over which access rights are exercisable S

(1) The local authority may, in relation to land in respect of which access rights are exercisable, make byelaws—

(a) making provision further or supplementary to that made—

(i) by sections 2 and 9 and under section 4 above as to the responsible exercise of access rights; and

(ii) by section 3(2) and under section 4 above as to the responsible use, management and conduct of the ownership of the land;

(b) specifying land for the purposes of section 6(j) above;

(c) providing for—

(i) the preservation of public order and safety;

(ii) the prevention of damage;

(iii) the prevention of nuisance or danger;

(iv) the conservation or enhancement of natural or cultural heritage.

(2) Byelaws made under section (1)(c) above may, in particular—

(a) prohibit, restrict or regulate the exercise of access rights;

(b) facilitate their exercise;

(c) so as to protect and further the interests of persons who are exercising or who might exercise access rights, prohibit or regulate—

(i) the use of vehicles or vessels;

(ii) the taking place of sporting and recreational activities;

(iii) the conduct of any trade or business;

(iv) the depositing or leaving of rubbish or litter; and

(v) the lighting of fires and the doing of anything likely to cause a fire,

on the land.

(3) Byelaws made under this section shall not interfere with the exercise of—

(a) any public right of way or navigation; or

(b) the functions of a statutory undertaker.

(4) Sections 202 to 204 (byelaws) of the Local Government (Scotland) Act 1973 (c. 65) apply to byelaws made under this section as they apply to byelaws made under that Act, but with the following modifications and further provisions.

(5) The references to one month in subsections (4), (5) and (7) of section 202 shall be read as references to such period of not less than 12 weeks as the local authority determine.

(6) The local authority shall, at the same time as they first make the proposed byelaws open to public inspection, consult the persons and bodies mentioned in subsection (7) below on the proposed byelaws.

(7) Those persons and bodies are—

(a) every community council whose area includes an area to which the proposed byelaws would apply;

(b) the owners of land to which the proposed byelaws would apply;

(c) such persons as appear to them to be representative of the interests of those who live, work, carry on business or engage in recreational activities on any land affected by the proposed byelaws;

(d) the local access forum established by them;

(e) every statutory undertaker which carries on its undertaking on land to which the proposed byelaws would apply;

(f) Scottish Natural Heritage; and

(g) such other persons as they think fit.

(8) The local authority are, for the purposes of subsection (6) above, to be taken as having consulted a person of whom or a body of which they have no knowledge or whom or which they cannot find if they have taken reasonable measures to ascertain whether the person or body exists or, as the case may be, the person’s or body’s whereabouts.

Chapter 5 S Local authority functions: access and other rights

13 Duty of local authority to uphold access rights S

(1) It is the duty of the local authority to assert, protect and keep open and free from obstruction or encroachment any route, waterway or other means by which access rights may reasonably be exercised.

(2) A local authority is not required to do anything in pursuance of the duty imposed by subsection (1) above which would be inconsistent with the carrying on of any of the authority’s other functions.

(3) The local authority may, for the purposes set out in subsection (1) above, institute and defend legal proceedings and generally take such steps as they think expedient.

14 Prohibition signs, obstructions, dangerous impediments etc. S

(1) The owner of land in respect of which access rights are exercisable shall not, for the purpose or for the main purpose of preventing or deterring any person entitled to exercise these rights from doing so—

(a) put up any sign or notice;

(b) put up any fence or wall, or plant, grow or permit to grow any hedge, tree or other vegetation;

(c) position or leave at large any animal;

(d) carry out any agricultural or other operation on the land; or

(e) take, or fail to take, any other action.

(2) Where the local authority consider that anything has been done in contravention of subsection (1) above they may, by written notice served on the owner of the land, require that such remedial action as is specified in the notice be taken by the owner of the land within such reasonable time as is so specified.

(3) If the owner fails to comply with such a notice, the local authority may—

(a) remove the sign or notice; or, as the case may be,

(b) take the remedial action specified in the notice served under subsection (2) above,

and, in either case, may recover from the owner such reasonable costs as they have incurred by acting under this subsection.

(4) An owner on whom a notice has been so served may, by summary application made to the sheriff, appeal against it.

(5) Rules of Court shall provide—

(a) for public notice of the making of summary applications for the purposes of this section;

(b) for enabling persons interested in the exercise of access rights over the land to which a summary application relates, and persons or bodies representative of such persons, to be parties to the proceedings;

(c) for limiting the number of persons and bodies who may be such parties.

15 Measures for safety, protection, guidance and assistance S

(1) The local authority may take such steps (which may include the putting up and maintenance of notices and fences) as appear to them appropriate—

(a) to warn the public of and protect the public from danger on any land in respect of which access rights are exercisable;

(b) to indicate or enclose, or to give directions to, any such land.

(2) Where the local authority consider that a fence, wall or other erection is so constructed or adapted (whether by the use of barbed wire or other sharp material or by being electrified or otherwise) as to be likely to injure a person exercising access rights, they may by written notice served on the owner of the land on which it is placed, require the owner to take, within such reasonable time as is specified in the notice, such reasonable action as is so specified, being action calculated to remove the risk of injury.

(3) Subsections (3)(b), (4) and (5) of section 14 above apply in respect of a notice served under subsection (2) above as they apply to a notice served under those subsections.

(4) The local authority may install and maintain, in any land in respect of which access rights are exercisable, gates, stiles, moorings, launching sites or other means of facilitating the exercise of these rights, and seats, lavatories and other means of contributing to the comfort and convenience of persons exercising them.

(5) The local authority may, in relation to inland waters in respect of which access rights are exercisable, provide staff for life saving and any boats or equipment which are appropriate for life saving.

(6) In exercising their powers under this section, the local authority shall—

(a) have regard to the extent to which there are existing facilities in their area for the purposes of assisting persons to exercise access rights; and

(b) have regard to the needs of persons with disabilities.

(7) The local authority may carry out the operations authorised by subsections (4) and (5) above within the land over which the access rights are exercisable only with the consent of the owner.

16 Acquisition by local authority of land to enable or facilitate exercise of access rights S

(1) Where it appears to the local authority to be necessary or expedient for the purpose of enabling or facilitating the exercise of access rights in respect of any land to which this section applies that the land be acquired by them, the authority may—

(a) acquire it by agreement (whether by purchase, feu, lease or excambion); or

(b) with the consent of Ministers, acquire it compulsorily.

(2) The land to which this section applies is land other than—

(a) land in respect of which access rights do not extend by virtue of section 6(1)(a)(ii), (d), (e) or (f) above;

(b) land which has been exempted by order made by the local authority under section 11(1) of this Act.

(3) A local authority shall hold and manage any land acquired by them under this section so as best to facilitate the exercise of access rights.

(4) The Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 (c. 42) shall apply in relation to a compulsory purchase under this section as if this section had been in force immediately before that Act.

17 Core paths plan S

(1) It is the duty of the local authority, not later than 3 years after the coming into force of this section, to draw up a plan for a system of paths (“core paths”) sufficient for the purpose of giving the public reasonable access throughout their area.

(2) Such a system of paths may include—

(a) rights of way by foot, horseback, pedal cycle or any combination of those, being rights which are or may be established by or under any enactment or rule of law;

(b) paths, footways, footpaths, cycle tracks or other means of access (however described but not falling within paragraph (a) above) which are or may be provided by or under any enactment other than this Act;

(c) paths which are or may be delineated by a path agreement under section 21 or a path order under section 22 below;

(d) other routes, waterways or other means by which persons may cross land.

(3) In drawing up the plan, the local authority shall have regard to—

(a) the likelihood that persons exercising rights of way and access rights will do so by using core paths;

(b) the desirability of encouraging such persons to use core paths; and

(c) the need to balance the exercise of those rights and the interests of the owner of the land in respect of which those rights are exercisable.

(4) The plan may consist of or include maps showing core paths and, where it does not, shall refer to such maps.

18 Core paths plan: further procedure S

(1) The local authority shall—

(a) give public notice of the plan drawn up by them under section 17 above and any maps it refers to;

(b) make the plan and any such maps available thereafter for public inspection for a period of not less than 12 weeks; and

(c) consult—

(i) the local access forum for their area;

(ii) persons representative of those who live, work, carry on business or engage (or would be likely to engage) in recreational activities on the land on which it is proposed that there be core paths;

(iii) Scottish Natural Heritage; and

(iv) such other persons as the local authority think fit,

in each case inviting objections and representations to be made to them within such period as they specify.

(2) If no objections are made or any made are withdrawn, the local authority shall adopt the plan.

(3) If an objection is made and not withdrawn, the local authority shall not adopt the plan unless Ministers direct them to do so.

(4) Where an objection remains unwithdrawn, Ministers shall not make such a direction without first causing a local inquiry to be held into whether the plan will, if adopted, fulfil the purpose mentioned in section 17(1) above.

(5) Ministers may, in any other case, cause such an inquiry to be held.

(6) Subsections (2) to (13) of section 265 (local inquiries) of the Town and Country Planning (Scotland) Act 1997 (c. 8) apply to an inquiry held under subsection (4) or (5) above as they apply to one held under that section.

(7) Following the publication of the report by the person appointed to hold the inquiry, Ministers may (but need not) direct the local authority to adopt the plan either as drawn up under section 17 above or with such modification as Ministers specify in the direction.

(8) On adopting the plan, the local authority shall—

(a) give public notice of its adoption;

(b) compile a list of core paths;

(c) keep the plan, any maps it refers to and the list available for public inspection and for sale at a reasonable price; and

(d) send a copy of each of those documents to Ministers.

(9) Where Ministers decline to make a direction under subsection F4 ... (7) above, the local authority shall draw up a revised plan and shall do so in accordance with such procedure and within such time limits as Ministers specify.

(10) Such specification shall include provision under which Ministers may (but need not) direct the local authority to [F5 adopt] the revised plan.

Textual Amendments

F4 Words in s. 18(9) repealed (31.12.2016) by Land Reform (Scotland) Act 2016 (asp 18), ss. 83(2)(a), 130(1) (with s. 128); S.S.I. 2016/372, reg. 2 (with reg. 3)

F5 Word in s. 18(10) substituted (31.12.2016) by Land Reform (Scotland) Act 2016 (asp 18), ss. 83(2)(b), 130(1) (with s. 128); S.S.I. 2016/372, reg. 2 (with reg. 3)

19 Power to maintain core paths etc. S

The local authority may do anything which they consider appropriate for the purposes of—

(a) maintaining a core path;

(b) keeping a core path free from obstruction or encroachment;

(c) providing the public with directions to, or with an indication of the extent of, a core path.

20 Review and amendment of core paths plan S

[F6 (1) A local authority—

(a) must review the plan adopted under section 18 (or that plan as amended under this section or section 20C) if Ministers require them to do so,

(b) may review such a plan if they consider it appropriate to do so for the purpose of ensuring that the core paths plan continues to give the public reasonable access throughout their area.]

(2) Where, following a review of a plan under subsection (1) above, the local authority consider that—

(a) a core path should be removed from the plan; or

(b) the line of a core path, or part of that line, should be diverted,

the authority may amend the plan by removing the core path from the plan or, as the case may be, by diverting the line of the core path on the plan.

(3) The local authority may not amend the plan under subsection (2) above unless they are satisfied that it is expedient so to do having regard to—

(a) the extent to which it appears to them that persons would, but for the amendment, be likely to exercise access rights using the core path; and

(b) the effect which the amendment of the plan would have as respects land served by the core path.

(4) Where the local authority stop up, or divert, a core path by order under section 208 of the Town and Country Planning (Scotland) Act 1997 (c. 8) they shall amend their plan accordingly.

[F7 (5) On adopting the amended plan under subsection (4), the local authority must—

(a) amend the list of core paths compiled under section 18(8) to show the effect of the stopping up or diversion,

(b) keep the amended plan, any maps it refers to and the list available for public inspection and for sale at a reasonable price, and

(c) send a copy of each of those documents to Ministers.]

(6) Where, following a review of a plan under subsection (1) above, the local authority consider that the plan should be amended so as to include a further path, waterway or other means of crossing land such as is mentioned in section 17(2) above, the authority shall draw up an amended plan.

(7) [F8 Subsections (3) and (4) of section 17] apply in relation to a plan drawn up under subsection (6) above as they apply to a plan drawn up under section 17(1) above.

Textual Amendments

F6 S. 20(1) substituted (31.12.2016) by Land Reform (Scotland) Act 2016 (asp 18), ss. 83(3)(a), 130(1) (with s. 128); S.S.I. 2016/372, reg. 2

F7 S. 20(5) substituted (31.12.2016) by Land Reform (Scotland) Act 2016 (asp 18), ss. 83(3)(b), 130(1) (with s. 128); S.S.I. 2016/372, reg. 2

F8 Words in s. 20(7) substituted (31.12.2016) by Land Reform (Scotland) Act 2016 (asp 18), ss. 83(3)(c), 130(1) (with s. 128); S.S.I. 2016/372, reg. 2 (with reg. 3)

[F9 20A Review and amendment of core paths plan: further procedure S

(1) Where, following a review of a plan under section 20(1), the local authority consider that a plan should be amended, the local authority must—

(a) give public notice of the amended plan and any maps it refers to,

(b) make the original plan and the amended plan and any such maps available for public inspection for a period of not less than 12 weeks, and

(c) consult—

(i) the local access forum for their area,

(ii) persons representative of those who live, work, carry on business or engage (or would be likely to engage) in recreational activities on the land affected by the amendment to the plan,

(iii) Scottish Natural Heritage, and

(iv) such other persons as the local authority think fit,

in each case inviting objections and representations in relation to the amendment to the plan to be made to them within such period as they specify.

(2) If no objections are made or any made are withdrawn, the local authority must adopt the amended plan.

(3) If an objection is made and not withdrawn, the local authority must not adopt the amended plan unless Ministers direct them to do so.

(4) If, after complying with subsection (1), the local authority modify the amended plan, they must notify and consult such persons as they consider appropriate on the modified amended plan.

(5) Where an objection remains unwithdrawn, Ministers must not make a direction without first causing a local inquiry to be held into whether the amended plan (or, as the case may be, the modified amended plan) will, if adopted, fulfil the purpose mentioned in section 17(1).

(6) Ministers may, in any other case, cause such an inquiry to be held.

(7) Subsections (2) to (13) of section 265 (local inquiries) of the Town and Country Planning (Scotland) Act 1997 apply to an inquiry held under subsection (5) or (6) as they apply to one held under that section.

(8) Following the publication of the report by the person appointed to hold the inquiry, Ministers may (but need not) direct the local authority to adopt the amended plan (or, as the case may be, the modified amended plan) either as drawn up under section 20 or with such modification as Ministers specify in the direction.

(9) On adopting the amended plan, the local authority must—

(a) give public notice of the adoption of the amended plan,

(b) amend the list of core paths compiled under section 18(8),

(c) keep the amended plan, any maps it refers to and the list available for public inspection and for sale at a reasonable price, and

(d) send a copy of each of those documents to Ministers.

(10) Where Ministers decline to make a direction under subsection (8), the local authority must draw up a revised amended plan and must do so in accordance with such procedure and within such time limits as Ministers specify.

(11) Such specification must include provision under which Ministers may (but need not) direct the local authority to adopt the revised amended plan.

Textual Amendments

F9 Ss. 20A-20D inserted (31.12.2016) by Land Reform (Scotland) Act 2016 (asp 18), ss. 83(4), 130(1) (with s. 128); S.S.I. 2016/372, reg. 2 (with reg. 3)

20B Review and amendment of core paths plan: notice to owners and occupiers of land S

(1) Where, following a review of a plan under section 20(1), the local authority consider that a plan should be amended, the local authority must, at the same time as complying with section 20A(1), serve a written notice on the owner and occupier of any land which is, as a result of the amendment of the plan, being included in a plan for the first time (the “affected land”).

(2) Notice under subsection (1) must—

(a) explain the potential effect of the amended plan on the affected land,

(b) set out where the original plan and the amended plan may be inspected, and

(c) specify the period within which any objections and representations in relation to the amendment to the plan may be made.

(3) Where it is not possible, after reasonable enquiry, to identify the owner or occupier of the affected land, notice under subsection (1) may be given instead by leaving a copy of the notice in a prominent place on the affected land.

Textual Amendments

F9 Ss. 20A-20D inserted (31.12.2016) by Land Reform (Scotland) Act 2016 (asp 18), ss. 83(4), 130(1) (with s. 128); S.S.I. 2016/372, reg. 2 (with reg. 3)

20C Single amendment of core paths plan: procedure S

If the local authority consider that it would be appropriate to make a single amendment of a core paths plan, the local authority must—

(a) consult such persons as the local authority think fit on the amendment, inviting objections and representations in relation to the amendment to be made to them within such period as they specify, and

(b) give such notice of the amendment as the local authority think fit.

Textual Amendments

F9 Ss. 20A-20D inserted (31.12.2016) by Land Reform (Scotland) Act 2016 (asp 18), ss. 83(4), 130(1) (with s. 128); S.S.I. 2016/372, reg. 2 (with reg. 3)

20D Single amendment of core paths plan: further procedure S

(1) Section 17(3) applies to an amendment under section 20C which includes a further path, waterway or other means of crossing land such as is mentioned in section 17(2) as it applies to a plan drawn up under section 17(1).

(2) Section 20(3) applies to an amendment under section 20C which removes a core path from the plan or diverts the line of a core path on the plan as it applies to an amendment of a plan under section 20(2).

(3) The following provisions apply to an amendment under section 20C as they apply to an amendment of a plan under section 20(1)—

(a) subsections (2) to (9) of section 20A,

(b) section 20B, subject to the modification that the reference in section 20B(1) to section 20A(1) is to be read as a reference to section 20C.]

Textual Amendments

F9 Ss. 20A-20D inserted (31.12.2016) by Land Reform (Scotland) Act 2016 (asp 18), ss. 83(4), 130(1) (with s. 128); S.S.I. 2016/372, reg. 2 (with reg. 3)

21 Delineation by agreement of paths in land in respect of which access rights exercisable S

(1) The local authority may enter an agreement (a “path agreement”) with a person having the necessary power for the delineation and maintenance or, as the case may be, for the delineation, creation and maintenance of a path within land in respect of which access rights are exercisable.

(2) A path agreement shall be on such terms and conditions as to payment or otherwise as may be specified in it.

22 Compulsory powers to delineate paths in land in respect of which access rights exercisable S

(1) Where, in the circumstances set out in subsection (2) below, it appears to the local authority that, having regard to the rights and interests of the owner of land in respect of which access rights are exercisable and persons likely to exercise these rights, it is expedient to delineate a path within that land, the authority may, by order (a “path order”), do so.

(2) These circumstances are that it appears to the local authority to be impracticable to delineate the path by means of a path agreement.

(3) Where the local authority make a path order—

(a) delineating an existing path, they have the duty of maintaining it;

(b) delineating a new path, they have the duty of creating and maintaining it.

(4) Regard may be had, in determining whether a local authority has control of a path for the purposes of the Occupiers' Liability (Scotland) Act 1960 (c. 30), to the duties imposed by subsection (3) above.

(5) A path order may be revoked by the local authority.

(6) A path order shall be in such form as is prescribed but shall contain a map showing the delineation of the path.

(7) Where access rights—

(a) have, by virtue of any provision of this Part of this Act, not been exercisable over any land consisting of a public path created under sections 30 to 36 of the Countryside (Scotland) Act 1967 (c. 86); but

(b) become exercisable over that land,

the public path creation agreement or the public path creation order or public path diversion order by which the public path was created shall, for the purposes of the exercise of access rights, be treated as a path agreement or, as the case may be, a path order.

(8) Schedule 1 to this Act has effect for the purposes of providing further as to path orders.

(9) In section 28 (interpretation) of the Land Registration (Scotland) Act 1979 (c. 33) in paragraph (g) of the definition of “overriding interest” (which paragraph provides that public rights of way etc. are overriding interests) there is inserted at the end “or in respect of the exercise of access rights within the meaning of the Land Reform (Scotland) Act 2003 (asp 2) by way of a path delineated in a path order made under section 22 of that Act”.

23 Ploughing etc. S

(1) Where land is, in accordance with good husbandry, being ploughed or having its surface otherwise disturbed and it is convenient to plough, or otherwise disturb the surface of, a core path or a right of way which forms part of the land, nothing in this Part of this Act prevents that path or, as the case may be, right of way from being ploughed or from having its surface otherwise disturbed.

(2) The owner of land being a path or, as the case may be, right of way which has been ploughed or which has had its surface otherwise disturbed in accordance with subsection (1) above shall, however, within the period of 14 days beginning on the day on which the path or, as the case may be, right of way is ploughed or has its surface otherwise disturbed or such longer period as the local authority may allow, reinstate the path or, as the case may be, right of way.

(3) An owner who fails to comply with subsection (2) above shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(4) If the owner fails to comply with subsection (2) above, the local authority may, after giving the owner 14 days' notice of their intention to do so—

(a) take all necessary steps to reinstate the path or, as the case may be, right of way; and

(b) recover from the owner their reasonable expenses in doing so.

(5) Nothing in this section prejudices any limitation or condition having effect otherwise.

24 Rangers S

(1) The local authority may appoint persons to act as rangers in relation to any land in respect of which access rights are exercisable.

(2) The purposes for which such rangers may be so appointed are—

(a) to advise and assist the owner of the land and other members of the public as to any matter relating to the exercise of access rights in respect of the land; and

(b) to perform such other duties in relation to the exercise of those rights in respect of that land as the local authority determine.

(3) A person appointed under this section as a ranger may, for the purpose of exercising any function conferred by or under subsection (2) above, enter any land in respect of which access rights are exercisable.

25 Local access forums S

(1) Each local authority shall establish for its area a body, to be known as the “local access forum”, to carry out the functions set out in subsection (2) below.

(2) Those functions are—

(a) to advise the local authority and any other person or body consulting the forum on matters having to do with the exercise of access rights, the existence and delineation of rights of way or the drawing up and adoption of a plan for a system of core paths under sections 17 and 18 above;

(b) to offer and, where the offer is accepted, to give assistance to the parties to any dispute about—

(i) the exercise of access rights;

(ii) the existence and delineation of rights of way;

(iii) the drawing up and adoption of the plan referred to in paragraph (a) above; or

(iv) the use of core paths,

towards the resolution of the dispute.

(3) A local access forum consists of such persons as are appointed to it by the local authority.

(4) The matters to which the local authority have regard when making appointments to the local access forum shall include—

(a) ensuring reasonable representation in the forum of—

(i) bodies representative of persons with an interest in any of the matters mentioned in subsection (2)(b)(i) to (iv) above;

(ii) persons having such an interest;

(iii) bodies representative of the owners of land in respect of which access rights are exercisable or in which there is a core path; and

(iv) owners of such land, and

(b) ensuring a reasonable balance among those mentioned in sub-paragraphs (i) to (iv) of paragraph (a) above.

(5) The local authority may appoint one or more of its own members to a local access forum.

(6) More than one local access forum may be established for the area of a local authority.

(7) The local authority may pay to members of the local access forum such expenses and allowances as the local authority determine.

(8) Ministers may give guidance to local authorities to assist them in the performance of their functions under this section.

26 Power of entry S

(1) Any person authorised by the local authority to do so may enter any land for a purpose connected with the exercise or proposed exercise of any of the authority’s functions under this Part of this Act.

(2) A person so authorised may, subject to subsection (3) below, enter land only—

(a) at a reasonable time; and

(b) on giving reasonable notice to the owner of the land.

(3) Subsection (2) above does not apply—

(a) in case of emergency; or

(b) in relation to the exercise by a local authority of any of their powers under sections 15(1)(a) and (4) and 19 above in relation to land which is a core path.

(4) A person may, on entering any land by virtue of subsection (1) above, take onto the land any machinery, other equipment or materials required for the purpose for which the power of entry is being exercised.

27 Guidance S

(1) Ministers may give guidance to local authorities on the performance of any of their functions under this Part of this Act.

(2) Such guidance may be given generally or to a particular local authority.

(3) A local authority to which such guidance is given shall have regard to it.

(4) Before giving such guidance, Ministers shall—

(a) consult each (or the) local authority to whom they propose to give it; and

(b) lay a draft of the proposed guidance before the Scottish Parliament;

and the guidance shall not be given until after a period of 40 days beginning with the day on which the draft was so laid.

(5) If, within that period, the Parliament resolves that the guidance proposed should not be given, Ministers shall not give it.

(6) In calculating any period of 40 days for the purposes of subsection (4) or (5) above, no account is to be taken of any time during which the Parliament is dissolved or is in recess for more than 4 days.

Chapter 6 S General and miscellaneous provisions

28 Judicial determination of existence and extent of access rights and rights of way S

(1) It is competent, on summary application made to the sheriff, for the sheriff—

(a) to declare that the land specified in the application is or, as the case may be, is not land in respect of which access rights are exercisable;

(b) to declare—

(i) whether a person who has exercised or purported to exercise access rights has exercised those rights responsibly for the purposes of section 2 above;

(ii) whether the owner of land in respect of which access rights are exercisable is using, managing or conducting the ownership of the land in a way which is, for the purposes of section 3 above, responsible.

(2) It is competent, on summary application made to the sheriff, for the sheriff to declare whether a path, bridleway or other means of crossing land specified in the application is, or is not, a right of way by foot, horseback, pedal cycle or any combination of those.

(3) The proceedings for a declaration under subsection (1) or (2) above are those for an action of declarator initiated by summary application to the sheriff.

(4) A summary application for a declaration shall be served on the local authority.

(5) The local authority are entitled to be a party to proceedings for a declaration.

(6) Where the person seeking a declaration is the owner of the land, it is not necessary to serve the application on any person but the local authority [F10 unless subsection (7A) applies].

(7) In any other case, the person seeking the declaration shall serve the application on the owner of the land.

[F11 (7A) Where a declaration is being sought under subsection (1)(b)(i), the person seeking the declaration must also serve the application on the person whose exercise or purported exercise of access rights is in question.]

(8) Rules of court shall provide—

(a) for the circumstances in which (including any time periods within which) a summary application may be made for the purposes of this section;

(b) for public notice of the making of summary applications for the purposes of this section;

(c) for enabling persons interested in the exercise of access rights over specific land or, as the case may be, in the existence of a right of way over specific land and persons or bodies representative of such persons to be parties to the proceedings;

(d) for limiting the number of persons and bodies who may be such parties.

(9) This section is without prejudice to any remedy otherwise available in respect of rights conferred and duties imposed by or under this Part of this Act.

Textual Amendments

F10 Words in s. 28(6) inserted (31.12.2016) by Land Reform (Scotland) Act 2016 (asp 18), ss. 84(2), 130(1) (with s. 128); S.S.I. 2016/372, reg. 2 (with reg. 4)

F11 S. 28(7A) inserted (31.12.2016) by Land Reform (Scotland) Act 2016 (asp 18), ss. 84(3), 130(1) (with s. 128); S.S.I. 2016/372, reg. 2 (with reg. 4)

29 Powers to protect natural and cultural heritage etc. S

(1) Scottish Natural Heritage may put up and maintain notices for the purposes of protecting the natural heritage of land in respect of which access rights are exercisable.

(2) [F12 Historic Environment Scotland] may put up and maintain notices for the purposes of protecting the cultural heritage of land in respect of which access rights are exercisable.

(3) Any notice put up under subsection (1) or (2) above may warn persons of any adverse effect that their presence on the land or any activities they might conduct there might have on the natural or, as the case may be, cultural heritage sought to be protected.

Textual Amendments

F12 Words in s. 29(2) substituted (1.10.2015) by The Historic Environment Scotland Act 2014 (Ancillary Provision) Order 2015 (S.S.I. 2015/271), arts. 1, 4

30 Existing byelaws providing for public access to land S

It is the duty of every person, body or authority having power under any enactment to make byelaws which may provide for or relate to public access to land in respect of which access rights are exercisable and which is owned or managed by that person, body or authority—

(a) within 2 years of the coming into force of this section, to review those of its byelaws which so provide or relate and are in force at the time of the review; and

(b) to modify any of those byelaws which are inconsistent with the provisions of this Act (including any made under it) as they apply to that land so as to make them consistent.

31 Application of sections 14 and 15 to rights of way S

Sections 14 and 15 above apply in relation to rights of way by foot, horseback, pedal cycle or any combination of those as they apply in relation to access rights.

32 Interpretation of Part 1 S

In this Part of this Act—

• “Access Code” means the Scottish Outdoor Access Code issued by Scottish Natural Heritage under section 10 above;

• “canals” means inland waterways within the meaning of section 92 (interpretation) of the Transport Act 1962 (c. 46);

• “core path” means a path, waterway or any other means of crossing land such as is mentioned in section 17(2) above which is set out in a plan adopted under section 18 above or, as the case may be, such a plan as amended under section 20 above;

• “cultural heritage” includes structures and other remains resulting from human activity of all periods, traditions, ways of life and the historic, artistic and literary associations of people, places and landscapes;

• “inland waters” means any inland, non-tidal loch, river (to the extent that it is non-tidal), lake or reservoir, whether natural or artificial and whether navigable or not, and includes the bed and the shores or banks thereof;

• “land” includes—

  (a)

  bridges and other structures built on or over land;

  (b)

  inland waters;

  (c)

  canals; and

  (d)

  the foreshore, that is to say, the land between the high and low water marks of ordinary spring tides;

• “local authority” in relation to specific land in respect of which access rights are or would, but for a provision of or order made under this Act, be exercisable means—

  (a)

  where the land is, on the day on which this section comes into force, within an area designated as a National Park under the National Parks (Scotland) Act 2000 (asp 10), the National Park authority for that National Park; and

  (b)

  in any other case, the council (being a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39)) whose area includes that land;

• “natural heritage” includes the flora and fauna of land, its geological and physiographical features and its natural beauty and amenity;

• “owner”, in relation to land, means—

  (a)

  the owner of the land; and

  (b)

  where the owner is not in natural possession of the land, the person who is entitled to such natural possession;

• “statutory undertaker” means—

  (a)

  a person authorised by any enactment to carry on any railway, light railway, tramway, road transport, water transport, canal, inland navigation, dock, harbour, pier or lighthouse undertaking or any undertaking for the supply of hydraulic power;

  (b)

  the operator of a [F13 electronic communications code network];

  (c)

  an airport operator (within the meaning of the Airports Act 1986 (c. 31)) operating an airport to which Part V of that Act applies;

  (d)

  a gas transporter, within the meaning of Part I of the Gas Act 1986 (c. 44);

  (e)

  Scottish Water;

  (f)

  a holder of a licence under section 6(1) of the Electricity Act 1989 (c. 29);

  (g)

  the Civil Aviation Authority or a holder of a licence under Chapter I of Part I of the Transport Act 2000 (c. 38) (to the extent that the person holding the licence is carrying out activities authorised by it);

  (h)

  the Scottish Environment Protection Agency; or

  (i)

  [F14 a universal service provider within the meaning of Part 3 of the Postal Services Act 2011 (c.5)];

• and “undertaking” means the undertaking of such a statutory undertaker; and

• F15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F13 Words in s. 32 substituted (17.9.2003) by The Communications Act 2003 (Consequential Amendments) Order 2003 (S.I. 2003/2155), art. 3(1), Sch. 1 para. 15(2)

F14 Words in s. 32 substituted (1.10.2011) by The Postal Services Act 2011 (Consequential Modifications and Amendments) Order 2011 (S.I. 2011/2085), art. 1(2), Sch. 1 para. 52

F15 S. 32: definitions of "telecommunications code system" and "operator" repealed (17.9.2003) by The Communications Act 2003 (Consequential Amendments) Order 2003 (S.I. 2003/2155), art. 3(2), {Sch. 2 Table 1}

Modifications etc. (not altering text)

C2 S. 32: definition modified (2.10.2010) by The Cairngorms National Park Designation, Transitional and Consequential Provisions (Scotland) Order 2003 Modification Order 2010 (S.S.I. 2010/348), art. 3

Part 2 S The community right to buy

Chapter 1 S General extent of community right to buy

33 [F16 Land in respect of which community interest may be registered] S

(1) F17 ... A community interest may be registered under this Part of this Act [F18 in] any land other than excluded land.

(2) In subsection (1) above, “excluded land” means land [F19 consisting of a separate tenement which is owned separately from the land in respect of which it is exigible (subject to subsection (2A))].

[F20 (2A) Land consisting of—

(a) salmon fishings, or

(b) mineral rights (other than rights to oil, coal, gas, gold or silver),

which are owned separately from the land in respect of which they are exigible is not “excluded land” (and so is land in which a community interest may be registered under this Part).]

F21 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F21 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F21 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F21 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F21 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F16 S. 33 title substituted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 36(2), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F17 Words in s. 33(1) repealed (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 36(1)(a)(i), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F18 Word in s. 33(1) substituted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 36(1)(a)(ii), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F19 Words in s. 33(2) substituted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 36(1)(b), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F20 S. 33(2A) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 36(1)(c), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F21 S. 33(3)-(7) repealed (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 36(1)(d), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

34 Community bodies S

[F22 (A1) A community body is, subject to subsection (4)—

(a) a body falling within subsection (1), (1A) or (1B), or

(b) a body of such other description as may be prescribed which complies with prescribed requirements.]

(1) A [F23 body falls within this subsection if it is], a company limited by guarantee the [F24 articles of association] of which include the following—

(a) a definition of the community to which the company relates;

(b) provision enabling the company to exercise the right to buy land under this Part of this Act;

(c) provision that the company must have not fewer than [F25 10] members;

[F26 (d) provision that at least three quarters of the members of the company are members of the community,]

(e) provision whereby the members of the company who consist of members of the community have control of the company;

(f) provision ensuring proper arrangements for the financial management of the company F27 ...;

[F28 (fa) provision that, on the request of any person for a copy of the minutes of a meeting of the company, the company must, if the request is reasonable, give the person within 28 days of the request a copy of those minutes,

(fb) provision that, where a request of the type mentioned in paragraph (fa) is made, the company—

(i) may withhold information contained in the minutes, and

(ii) if it does so, must inform the person requesting a copy of the minutes of its reasons for doing so,]

(g) provision that any surplus funds or assets of the company are to be applied for the benefit of the community; and

(h) provision that, on the winding up of the company and after satisfaction of its liabilities, its property (including any land acquired by it under this Part of this Act) passes—

(i) to such other community body [F29 , crofting community body or Part 3A community body (as defined in section 97D)] as may be approved by Ministers; or

(ii) if no other community body [F30 , crofting community body or Part 3A community body (as so defined)] is so approved, to Ministers or to such charity as Ministers may direct.

[F31 (1A) A body falls within this subsection if it is a Scottish charitable incorporated organisation (a “ SCIO ”) the constitution of which includes the following—

(a) a definition of the community to which the SCIO relates,

(b) provision enabling the SCIO to exercise the right to buy land under this Part,

(c) provision that the SCIO must have not fewer than 10 members,

(d) provision that at least three quarters of the members of the SCIO are members of the community,

(e) provision under which the members of the SCIO who consist of members of the community have control of the SCIO ,

(f) provision ensuring proper arrangements for the financial management of the SCIO ,

(g) provision that, on the request of any person for a copy of the minutes of a meeting of the SCIO , the SCIO must, if the request is reasonable, give the person within 28 days of the request a copy of those minutes,

(h) provision that, where a request of the type mentioned in paragraph (g) is made, the SCIO —

(i) may withhold information contained in the minutes, and

(ii) if it does so, must inform the person requesting a copy of the minutes of its reasons for doing so, and

(i) provision that any surplus funds or assets of the SCIO are to be applied for the benefit of the community.

(1B) A body falls within this subsection if it is a community benefit society the registered rules of which include the following—

(a) a definition of the community to which the society relates,

(b) provision enabling the society to exercise the right to buy land under this Part,

(c) provision that the society must have not fewer than 10 members,

(d) provision that at least three quarters of the members of the society are members of the community,

(e) provision under which the members of the society who consist of members of the community have control of the society,

(f) provision ensuring proper arrangements for the financial management of the society,

(g) provision that, on the request of any person for a copy of the minutes of a meeting of the society, the society must, if the request is reasonable, give the person within 28 days of the request a copy of those minutes,

(h) provision that, where a request of the type mentioned in paragraph (g) is made, the society—

(i) may withhold information contained in the minutes, and

(ii) if it does so, must inform the person requesting a copy of the minutes of its reasons for doing so, and

(i) provision that any surplus funds or assets of the society are to be applied for the benefit of the community.]

(2) Ministers may, if they think it in the public interest to do so, disapply the requirement specified in subsection (1)(c)[F32 , (1A)(c) or (1B)(c)] above in relation to any body they may specify.

(3) In subsection (1) above, “company limited by guarantee” has [F33 the meaning given by section 3(3) of the Companies Act 2006].

(4) A body is not a community body unless Ministers have given it written confirmation that they are satisfied that the main purpose of the body is consistent with furthering the achievement of sustainable development.

[F34 (4A) Ministers may by regulations from time to time amend subsections (1), (1A) and (1B).

(4B) If provision is made under subsection (A1)(b), Ministers may by regulations make such amendment of section 35(A1) and (1) in consequence of that provision as they consider necessary or expedient.]

(5) F35 ... A community—

(a) shall be defined for the purposes of [F36 subsections (1)(a), (1A)(a) and (1B)(a)] above by reference to a postcode unit or postcode units [F37 or a prescribed type of area (or both such unit and type of area)]; and

(b) shall comprise the persons from time to time—

(i) resident in that postcode unit or in one of those postcode units [F38 or in that prescribed type of area]; and

(ii) entitled to vote, at a local government election, in a polling district which includes that postcode unit or those postcode units [F39 or that prescribed type of area] (or part of it or them).

(6) In subsection (5) above, “postcode unit” means an area in relation to which a single postcode is used to facilitate the identification of postal service delivery points within the area.

(7) The [F40 articles] of a company which is a community body may, notwithstanding the generality of paragraph (h) of subsection (1) above, provide that its property may, in the circumstances mentioned in that paragraph, pass to another person only if that person is a charity.

(8) In this section[F41 —]

• “charity” means a body [F42 entered in the Scottish Charity Register]

• [F43 “ community benefit society ” means a registered society (within the meaning of section 1 of the Co-operative and Community Benefit Societies Act 2014) registered as a community benefit society under section 2 of that Act,

• “ registered rules ” has the meaning given by section 149 of that Act (as that meaning applies in relation to community benefit societies),

• “Scottish charitable incorporated organisation” has the meaning given by section 49 of the Charities and Trustee Investment (Scotland) Act 2005].

Textual Amendments

F22 S. 34(A1) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 37(2), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F23 Words in s. 34(1) substituted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 37(3)(a), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F24 Words in s. 34(1) substituted (1.10.2009) by The Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941), art. 2(1), Sch. 1 para. 218(2)(a) (with art. 10)

F25 Word in s. 34(1)(c) substituted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 37(3)(b), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F26 S. 34(1)(d) substituted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 37(3)(c), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F27 Words in s. 34(1)(f) repealed (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 37(3)(d), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F28 S. 34(1)(fa)(fb) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 37(3)(e), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F29 Words in s. 34(1)(h)(i) substituted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 37(3)(f)(i), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F30 Words in s. 34(1)(h)(ii) substituted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 37(3)(f)(ii), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F31 S. 34(1A)(1B) inserted (13.11.2015 for specified purposes, 15.4.2016 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 37(4), 142(1); S.S.I. 2015/358, art. 2, Sch.; S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F32 Words in s. 34(2) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 37(5), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F33 Words in s. 34(3) substituted (1.10.2009) by The Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941), art. 2(1), Sch. 1 para. 218(2)(b) (with art. 10)

F34 S. 34(4A)(4B) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 37(6), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F35 Words in s. 34(5) repealed (13.11.2015 for specified purposes, 15.4.2016 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 37(7)(a), 142(1); S.S.I. 2015/358, art. 2, Sch.; S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F36 Words in s. 34(5)(a) substituted (13.11.2015 for specified purposes, 15.4.2016 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 37(7)(b)(i), 142(1); S.S.I. 2015/358, art. 2, Sch.; S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F37 Words in s. 34(5)(a) inserted (13.11.2015 for specified purposes, 15.4.2016 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 37(7)(b)(ii), 142(1); S.S.I. 2015/358, art. 2, Sch.; S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F38 Words in s. 34(5)(b)(i) inserted (13.11.2015 for specified purposes, 15.4.2016 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 37(7)(c), 142(1); S.S.I. 2015/358, art. 2, Sch.; S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F39 Words in s. 34(5)(b)(ii) inserted (13.11.2015 for specified purposes, 15.4.2016 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 37(7)(d), 142(1); S.S.I. 2015/358, art. 2, Sch.; S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F40 Words in s. 34(7) substituted (1.10.2009) by The Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941), art. 2(1), Sch. 1 para. 218(2)(c) (with art. 10)

F41 S. 34(8) hyphen inserted (13.11.2015 for specified purposes, 15.4.2016 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 37(8)(a), 142(1); S.S.I. 2015/358, art. 2, Sch.; S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F42 Words in s. 34(8) substituted (1.4.2006) by Charities and Trustee Investment (Scotland) Act 2005 (asp 10) ss. 104, 107(2), {Sch. 4 para. 13(a)}; S.S.I. 2006/189, art. 2, Sch.

F43 Words in s. 34(8) inserted (13.11.2015 for specified purposes, 15.4.2016 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 37(8)(b), 142(1); S.S.I. 2015/358, art. 2, Sch.; S.S.I. 2015/399, art. 2, Sch. (with art. 3)

35 Provisions supplementary to section 34 S

[F44 (A1) During the relevant period, a community body which modifies its memorandum, articles of association, constitution or registered rules (as defined in section 34(8)) must, as soon as possible after such modification, notify the Scottish Ministers in writing of the modification.]

[F45 (A2) In subsection (A1), “relevant period” means the period—

(a) beginning on the day on which the community body submits an application under section 37(1) for registration of a community interest in land, and

(b) ending with—

(i) registration of the community interest in land,

(ii) a decision by Ministers that the community interest in land should not be registered,

(iii) Ministers declining, by virtue of section 39(5), to consider the application, or

(iv) withdrawal of the application.]

[F46 (1) A community body—

(a) which—

(i) has registered a community interest in land under this Part and remains so registered, or

(ii) has bought land under this Part, any part of which remains in its ownership, and

(b) which modifies its memorandum, articles of association, constitution or registered rules (as defined in section 34(8)),

must, as soon as possible after such modification, notify the Scottish Ministers in writing of the modification.]

(2) If Ministers are satisfied that a body which has registered a community interest is no longer a community body, they may direct the Keeper to delete that interest from the Register.

(3) If Ministers are satisfied that a body which has, under this Part of this Act, bought land would, had it not so bought that land, no longer be entitled to do so, they may acquire the land compulsorily.

[F47 (4) Where the power conferred by subsection (3) is (or is to be) exercised in relation to land, Ministers may make an order relating to, or to matters connected with, the acquisition of the land.

(5) An order under subsection (4) may—

(a) apply, modify or exclude any enactment which relates to any matter as to which an order could be made under that subsection,

(b) make such modifications of enactments as appear to Ministers to be necessary or expedient in consequence of any provision of the order or otherwise in connection with the order.]

Textual Amendments

F44 S. 35(A1) substituted (27.6.2018) by Land Reform (Scotland) Act 2016 (asp 18), s. 130(1), sch. 1 para. 1(2)(a) (with s. 128); S.S.I. 2018/138, art. 3, sch. 2

F45 S. 35(A1)(A2) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 38(2), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F46 S. 35(1) substituted (27.6.2018) by Land Reform (Scotland) Act 2016 (asp 18), s. 130(1), sch. 1 para. 1(2)(b) (with s. 128); S.S.I. 2018/138, art. 3, sch. 2

F47 S. 35(4)(5) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 38(4), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

36 Register of Community Interests in Land S

(1) The Keeper shall set up and keep a register, to be known as the Register of Community Interests in Land (the “Register”).

(2) The Register shall be set up and kept so as to contain, in a manner and form convenient for public inspection, the following information and documents relating to each community interest registered in it—

(a) [F48 where the community body which has registered the interest is constituted by a company limited by guarantee,] the name and address of the registered office of the company F49 ...;

[F50 (aa) where the community body which has registered the interest is constituted by a Scottish charitable incorporated organisation within the meaning given in section 34(8) (a “ SCIO ”), the name and address of the principal office of the SCIO ,

(ab) where the community body which has registered the interest is constituted by a community benefit society as defined in section 34(8), the name and address of the registered office of the society,]

(b) a copy of the application for registration under section 37 below;

(c) a copy of the notice of prohibition under section 37(5)(e) below;

(d) a copy of the notice sent under section 37(17) below of Ministers' decision that the interest is to be entered in the Register;

(e) the date of registration;

(f) a description of the land, including maps, plans or other drawings (prepared to such specifications as are prescribed);

(g) the date when the registration will, under section 44 below, cease to have effect;

(h) the date of any deletion of the interest under section 45 or 54 below;

(i) a copy of any notification under section 48 below;

(j) a copy of any notice sent under section 49 below;

(k) a copy of any confirmation received in pursuance of that section;

(l) a copy of any notice sent under section 50(3) below;

(m) a copy of any decision as to consent given under section 51 below;

(n) a copy of any notice given under section 54 below;

(o) in the case of each copy document referred to in this subsection, the date of the original;

(p) such other information as Ministers consider appropriate.

(3) If, however, the community body registering an interest requires that any such information or document relating to that interest and within subsection (4) below as is specified in the requirement be withheld from public inspection, that information or document shall be kept by or on behalf of Ministers separately from and not entered in the Register.

(4) Information or a document is within this subsection if it relates to arrangements for the raising or expenditure of money to enable the land in which the interest is registered to be put to a particular use.

(5) Nothing in subsection (3) or (4) above obliges an applicant community body, or empowers Ministers to require such a body, to submit to Ministers any information or document within subsection (4) above.

[F51 (5A) Subsection (5B) applies where—

(a) a community body changes its name,

(b) a community body which is constituted by a company limited by guarantee or by a community benefit society changes the address of its registered office, or

(c) a community body which is constituted by a SCIO changes the address of its principal office.

(5B) The community body must, as soon as reasonably practicable after the change is made, notify the Keeper of the change.]

(6) Ministers may by order modify paragraphs (a) to (o) of subsection (2) or subsections (3) or (4) above.

(7) The Keeper shall ensure—

(a) that the Register is, at all reasonable times, available for public inspection free of charge;

(b) that members of the public are given facilities for getting copies of entries in the Register on payment of such charges as may be prescribed; and

(c) that any person requesting it is, on payment of such a charge, supplied with an extract entry certified to be a true copy of the original.

(8) An extract so certified is sufficient evidence of the original.

(9) In this Part of this Act “the Keeper” means—

(a) the Keeper of the Registers of Scotland; or

(b) such other person as Ministers may appoint to carry out the Keeper’s functions under this Part of the Act.

(10) Different persons may be so appointed for different purposes.

Textual Amendments

F48 Words in s. 36(2)(a) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 39(2)(a)(i), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F49 Words in s. 36(2)(a) repealed (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 39(2)(a)(ii), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F50 S. 36(2)(aa)(ab) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 39(2)(b), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F51 S. 36(5A)(5B) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 39(3), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

Chapter 2 S Registration of interests

37 Registration of interest in land S

(1) A community interest in land may be registered only upon an application made by a community body to Ministers in the prescribed form and accompanied by information of the prescribed kind, including information (provided, where appropriate, by or by reference to maps or drawings) about the location and boundaries of the land.

(2) Where there is a standard security over an interest in any land to which the application relates the community body shall, at the same time as it applies, provide Ministers with notice, in the prescribed form, of that fact.

(3) Where an applicant community body satisfies Ministers that the owner of the land in which a community interest is sought to be registered or, as the case may be, a creditor in a standard security over any part of that land is unknown or cannot be found, Ministers shall be relieved of their duties under subsections (5) to (10), and paragraphs (b) and (c) of subsection (17), below in so far as those duties relate to the owner or, as the case may be, creditor.

(4) Ministers shall not be satisfied under subsection (3) above unless the community body has given public notice of the proposed application by—

(a) placing an advertisement, in two consecutive weeks, in a local newspaper circulating in the area where the land in which a community interest is sought [F52 to be registered] is situated; and

(b) [F53 (except in the case of a proposed application of the type mentioned in subsection (4B))] affixing a conspicuous notice in the prescribed form to a part of that land.

[F54 (4A) Ministers are not to be satisfied under subsection (3) in relation to a proposed application of the type mentioned in subsection (4B) unless the applicant community body has given public notice of the proposed application by advertising it in such manner as may be prescribed.

(4B) The type of proposed application is one to register a community interest in land consisting of salmon fishings, or mineral rights, which are owned separately from the land in respect of which they are exigible.]

(5) On receipt of an application, Ministers shall—

(a) send a copy of the application and the accompanying information to the owner of the land and to any creditor in a standard security over an interest in the land;

(b) invite the owner of the land to send them, so as to be received not later than 21 days after the sending of the invitation, views in writing on the application;

(c) where there is a standard security over an interest in any land to which the application relates, invite the creditor in the security—

(i) to notify the community body and Ministers, within 21 days of receipt of the invitation, if any of the circumstances set out in subsection (6) below has arisen (or arises within 21 days of receipt of the invitation); and

(ii) if such notice is given, to provide Ministers, within that time, with the creditor’s views in writing on the application;

(d) send a copy of the invitation under paragraph (b) above and a copy of any invitation under paragraph (c) above to the community body; and

(e) by notice sent to—

(i) the owner of the land; and

(ii) any creditor in a standard security over an interest in the land,

prohibit the owner and any such creditor from taking, during the period beginning with the date on which the owner or, as the case may be, the creditor receives the notice and ending on the date on which Ministers determine whether an interest is to be registered, any action which, if the interest had been registered, would be prohibited under section 40(1) below.

(6) The circumstances referred to in subsection (5)(c) above are that—

(a) a calling-up notice has been served by the creditor under section 19 of the Conveyancing and Feudal Reform (Scotland) Act 1970 (c. 35) in relation to the land in which the community body is seeking to register an interest or any part of that land and that notice has not been complied with;

(b) a notice of default served by the creditor under section 21 of that Act in relation to that land or any part of that land has not been complied with and the person on whom the notice was served has not, within the period specified in section 22 of that Act, objected to the notice by way of application to the court;

(c) where that person has so objected, the court has upheld or varied the notice of default; and

(d) the court has granted the creditor a warrant under section 24 of that Act in relation to that land or any part of that land.

(7) Ministers shall send a copy of—

(a) each application received by them, together with a copy of the accompanying information;

(b) each notice sent under subsection (5)(e) above, [F55 and

(c) any notice sent under section 44A,]

to the Keeper.

(8) A transfer in breach of a prohibition imposed under subsection (5)(e) above is of no effect.

(9) Ministers shall—

(a) send a copy of any timeous response to an invitation given under subsection (5)(b) or (c) above to the community body; and

(b) invite it to send them, so as to be received not later than 21 days after the invitation under this subsection, its views in writing on that response.

(10) Ministers shall take any views timeously sent to them under this section into account when considering whether the community interest to which those views relate should be entered in the Register.

(11) Ministers shall decline to consider an application that—

(a) does not comply with the requirements of or imposed under this section;

(b) is otherwise incomplete;

(c) discloses that any land to which it relates is [F56 excluded land as defined in section 33(2) above]; or

(d) otherwise indicates that it is one which Ministers would be bound to reject;

and Ministers shall be relieved of their duties under subsections (5) to (10) above, and paragraphs (b) and (c) of subsection (17) below, in relation to such an application.

(12) Declinature of an application is, for the purposes of subsection (17) below, to be regarded as a decision not to enter the community interest in the Register.

(13) More than one community interest may be registered in respect of the same land.

(14) A community body may, subject to subsection (15) below, register an interest in more than one holding of land.

(15) An application under subsection (1) above may relate to only one holding of land.

(16) In subsections (14) and (15) above, a “holding” of land is land in the ownership of one person or in common or joint ownership.

(17) Ministers shall, within 63 days of receiving an application under subsection (1) above, send notice of their decision whether or not the community interest is to be entered in the Register together with a statement of their reasons—

(a) to the applicant community body;

(b) to the owner of the land; and

(c) where a creditor in a standard security has notified Ministers timeously in response to an invitation given under subsection (5)(c)(i) above, to the creditor.

(18) A notice under subsection (17) above shall—

(a) contain information about the effect of registration of a community interest or, as the case may be, of Ministers' decision that such an interest is not to be entered in the Register and about the rights of appeal under section 61 below; and

[F57 (aa) where the decision is that such an interest is to be entered in the Register, contain information about the duties imposed under section 44A,]

(b) be in the prescribed form.

(19) Any failure to comply with the time limit specified in subsection (17) above [F58 , including that subsection as modified by section 39(2)(b) below,] does not affect the validity of anything done under this section.

(20) Where Ministers decide that a community interest is to be entered in the Register they shall direct the Keeper to so enter the interest with effect from the date on which Ministers made the decision.

Textual Amendments

F52 Words in s. 37(4)(a) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), s. 142(1), Sch. 4 para. 8(2)(a); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F53 Words in s. 37(4)(b) inserted (13.11.2015 for specified purposes, 15.4.2016 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 40(a), 142(1); S.S.I. 2015/358, art. 2, Sch.; S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F54 S. 37(4A)(4B) inserted (13.11.2015 for specified purposes, 15.4.2016 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 40(b), 142(1); S.S.I. 2015/358, art. 2, Sch.; S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F55 S. 37(7)(c) and word inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), s. 142(1), Sch. 4 para. 8(2)(b); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F56 Words in s. 37(11)(c) substituted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), s. 142(1), Sch. 4 para. 8(2)(c); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F57 S. 37(18)(aa) inserted (13.11.2015 for specified purposes, 15.4.2016 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), s. 142(1), Sch. 4 para. 8(2)(d); S.S.I. 2015/358, art. 2, Sch.; S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F58 Words in s. 37(19) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), s. 142(1), Sch. 4 para. 8(2)(e); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

38 Criteria for registration S

(1) Ministers shall not decide that a community interest is to be entered in the Register unless they are satisfied—

F59 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) that [F60 the acquisition of the land by the community body to which the application relates is compatible with furthering the achievement of sustainable development, and that]—

(i) a significant number of the members of the community F61 ... have a F62 ... connection with the land; F63 ...

(ii) the land is sufficiently near to land with which those members of [F64 the] community have a F65 ... connection F66 ...;

[F67 (iii) where the community body is a body mentioned in section 34(A1)(a), the land is in or sufficiently near to the area of the community by reference to which the community is defined as mentioned in section 34(5)(a), or

(iv) where the community body is a body mentioned in section 34(A1)(b), the land is in or sufficiently near to the area of the community to which the body relates,]

(c) where the land is salmon fishings or mineral rights, that the community body—

(i) has registered or is registering an interest in; or

(ii) has acquired or is acquiring,

other land containing or contiguous to the waters in which those salmon fishings exist or the land in which those mineral rights are exigible;

(d) that there is within the community a level of support sufficient to justify such registration; and

(e) that it is in the public interest that the community interest be so registered.

(2) [F68 Subject to subsection (2A) below,] for the purposes of subsection (1)(d) above, Ministers—

(a) shall regard an indication of the approval of one tenth or more of the members of the community; and

(b) may regard an indication of the approval of less than one tenth of those members,

as signifying a sufficient level of support.

[F69 (2A) Ministers may not take into account, for the purposes of subsection (2), the approval of a member of the community if the approval was indicated earlier than 6 months before the date on which the application to register the community interest in land to which the approval relates was made.

(2B) Ministers may by regulations amend subsection (2A) so as to substitute for the period of time for the time being specified there a different period of time (not being less than 6 months).]

(3) References in this section to the community are, as respects a community body, references to the community defined in relation to that body under section 34(1)(a)[F70 , (1A)(a) or (1B)(a), or where that body is a body mentioned in section 34(A1)(b), the community to which that body relates].

Textual Amendments

F59 S. 38(1)(a) repealed (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6) , s. 142(1) , Sch. 5 ; S.S.I. 2015/399 , art. 2 , Sch. (with art. 3 )

F60 Words in s. 38(1)(b) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6) , ss. 41(a)(i) , 142(1) ; S.S.I. 2015/399 , art. 2 , Sch. (with art. 3 )

F61 Words in s. 38(1)(b)(i) repealed (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6) , ss. 41(a)(ii) , 142(1) ; S.S.I. 2015/399 , art. 2 , Sch. (with art. 3 )

F62 Word in s. 38(1)(b)(i) repealed (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6) , s. 142(1) , Sch. 5 ; S.S.I. 2015/399 , art. 2 , Sch. (with art. 3 )

F63 Word in s. 38(1)(b) repealed (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6) , ss. 41(a)(iii) , 142(1) ; S.S.I. 2015/399 , art. 2 , Sch. (with art. 3 )

F64 Word in s. 38(1)(b)(ii) substituted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6) , ss. 41(a)(iv) , 142(1) ; S.S.I. 2015/399 , art. 2 , Sch. (with art. 3 )

F65 Word in s. 38(1)(b)(ii) repealed (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6) , s. 142(1) , Sch. 5 ; S.S.I. 2015/399 , art. 2 , Sch. (with art. 3 )

F66 Words in s. 38(1)(b)(ii) repealed (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6) , ss. 41(a)(v) , 142(1) ; S.S.I. 2015/399 , art. 2 , Sch. (with art. 3 )

F67 S. 38(1)(b)(iii)(iv) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6) , ss. 41(a)(vi) , 142(1) ; S.S.I. 2015/399 , art. 2 , Sch. (with art. 3 )

F68 Words in s. 38(2) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6) , ss. 41(b) , 142(1) ; S.S.I. 2015/399 , art. 2 , Sch. (with art. 3 )

F69 S. 38(2A)(2B) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6) , ss. 41(c) , 142(1) ; S.S.I. 2015/399 , art. 2 , Sch. (with art. 3 )

F70 Words in s. 38(3) substituted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6) , ss. 41(d) , 142(1) ; S.S.I. 2015/399 , art. 2 , Sch. (with art. 3 )

39 Procedure for late applications S

[F71 (1) This section (other than subsections (4A) and (5)) applies in relation to an application to register a community interest in land which satisfies—

(a) the conditions mentioned in subsection (1A), or

(b) the condition mentioned in subsection (1B).

(1A) The conditions are that—

(a) before the date on which the application is received by Ministers, the owner of the land or, as the case may be, a creditor in a standard security with a right to sell the land has taken action which, if a community interest had been registered, would be prohibited under section 40(1), and

(b) on the date on which the application is received by Ministers—

(i) missives for the sale and purchase of the land in pursuance of that action have not been concluded, or

(ii) an option to acquire the land in pursuance of that action has not been conferred.

(1B) The condition is that, where another community body has registered an interest in the land, the application is received by Ministers—

(a) after the date on which the owner of the land or, as the case may be, a creditor in a standard security with a right to sell the land has, under section 48(1), notified that community body that a transfer is proposed, and

(b) before Ministers have consented, under section 51(1), to a transfer to that community body.]

(2) Where this section applies in relation to an application—

(a) the owner of the land or, as the case may be, such a creditor shall, on receipt of an invitation under section 37 above, inform Ministers that this section applies; and

[F72 (aa) Ministers may, before the end of the period of 7 days following receipt of the views of the owner of the land or, as the case may be, such a creditor under that section, request—

(i) the owner, such a creditor or the community body making the application to provide such further information as they consider necessary in connection with their being informed as mentioned in paragraph (a), and

(ii) that the further information be supplied within 14 days of the request,]

(b) the procedure for registering community interests in land set out in section 37 above is, for the purposes of the application, subject to the following modifications—

(i) paragraph (b) of subsection (9) does not apply; and

(ii) in subsection (17), for “63” there is substituted “30” [F73 or (in a case where further information is requested under paragraph (aa)) “44”].

(3) Where this section applies in relation to an application, Ministers shall not decide that a community interest is to be entered in the Register unless they are (additionally to the matters as to which they are to be satisfied under section 38 above) satisfied—

[F74 (a) that—

(i) such relevant work as Ministers consider reasonable was carried out by a person, or

(ii) such relevant steps as Ministers consider reasonable were taken by a person,

(aa) that the relevant work was carried out or the relevant steps were taken—

(i) at a time which, in the opinion of Ministers, was sufficiently in advance of the owner of the land or, as the case may be, the creditor taking the action such as is mentioned in subsection (1A), or giving notice such as is mentioned in subsection (1B),

(ii) in respect of land with a view to the land being used for purposes that are the same as those proposed for the land in relation to which the application relates, and

(iii) by the community body making the application or by another person with a view to the application being made by the community body,

(ab) that—

(i) in the period of 12 months before the application is received by Ministers, the owner of the land or, as the case may be, the creditor taking the action such as is mentioned in subsection (1A) did not make an offer to sell the land to the community body or a similar community body, or

(ii) in that 12 month period, the owner of the land or, as the case may be, the creditor did make an offer to sell the land to the community body or a similar community body and, in the opinion of Ministers, there are good reasons why the body did not purchase the land,]

(b) that the level of support within the community for such registration is significantly greater than that which Ministers would, by virtue of subsection (2) of that section, have considered sufficient for the purposes of subsection (1)(d) of that section had the application been received before that action was taken or, as the case may be, the notice was given; and

(c) that the factors bearing on whether it is or is not in the public interest that the community interest be registered are strongly indicative that it is.

[F75 (3A) Despite subsection (3), Ministers may decide that a community interest is to be entered in the Register even though the conditions in paragraphs (a) and (aa) of that subsection are not satisfied in relation to the interest, if Ministers are satisfied that there are good reasons—

(a) why the conditions are not satisfied, and

(b) for allowing the interest to be entered in the Register.

(3B) Ministers may, before the end of the period of 7 days following receipt under section 37(5) of the views of the owner of the land or, as the case may be, a creditor in a standard security with a right to sell the land, request—

(a) any person they believe may be able to provide them with such further information as they consider necessary in connection with the matters mentioned in subsection (3) to provide the information, and

(b) that the information be supplied within 14 days of the request.]

(4) Where a community interest in land is registered in pursuance of an application in relation to which this section applies—

(a) the owner of the land is, for the purposes of this Part of this Act (other than section 59(4)), deemed to have, on the date on which that interest is so registered, given notice under section 48(1) below that a transfer is proposed;

(b) section 49 below does not apply in so far as it relates to that interest; and

(c) for the purposes of sections 55(2) and (4), 56(3), 59(1)[F76 , 60A(1)] and 65(1)(a) below, the community body is deemed to have sent the confirmation which Ministers would, had section 49 below applied, have required to seek under subsection (2)(a) of that section on the date on which the interest is registered.

[F77 (4A) Subsection (5) applies in relation to an application to register a community interest in land where the application is received by Ministers after the following have occurred—

(a) the owner of the land or, as the case may be, a creditor in a standard security with a right to sell the land has taken action which, if a community interest in land had been registered, would be prohibited under section 40(1), and

(b) either—

(i) missives for the sale and purchase of the land are concluded, or

(ii) an option to acquire the land is conferred.]

(5) F78 ... Ministers—

(a) shall decline to consider the application; and

(b) shall be relieved of their duties under subsections (5) to (10), and paragraphs (b) and (c) of subsection (17), of section 37 above in relation to that application.

[F79 (6) In subsection (3)—

• “ relevant work ” means anything done by way of preparation of an application to register a community interest in land,

• “ relevant steps ” means any steps towards securing ownership of land by a community body.

(7) In subsection (3)(ab)—

(a) references to “the land” include land that is, in the opinion of Ministers, mainly the same as the land to which the application mentioned in that subsection relates,

(b) references to “ an offer ” are references to an offer in writing (or that is confirmed in writing),

(c) a community body is, for the purposes of that subsection, similar to another community body if, in the opinion of Ministers, it is similar to the other body to a significant degree having regard to such matters as may be prescribed.

(8) In subsection (6), “ land ” means any land whether or not it is land in respect of which an application in relation to which this section applies is made.]

Textual Amendments

F71 S. 39(1)-(1B) substituted for s. 39(1) (13.11.2015 for specified purposes, 15.4.2016 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 42(2), 142(1); S.S.I. 2015/358, art. 2, Sch.; S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F72 S. 39(2)(aa) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 42(3)(a), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F73 Words in s. 39(2)(b)(ii) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 42(3)(b), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F74 S. 39(3)(a)-(ab) substituted for s. 39(3)(a) (13.11.2015 for specified purposes, 15.4.2016 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 42(4), 142(1); S.S.I. 2015/358, art. 2, Sch.; S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F75 S. 39(3A)(3B) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 42(5), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F76 Word in s. 39(4)(c) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 42(6), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F77 S. 39(4A) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 42(7), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F78 Words in s. 39(5) repealed (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 42(8), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F79 S. 39(6)-(8) inserted (13.11.2015 for specified purposes, 15.4.2016 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 42(9), 142(1); S.S.I. 2015/358, art. 2, Sch.; S.S.I. 2015/399, art. 2, Sch. (with art. 3)

[F80 39A Evidence and notification of concluded missives or option agreements S

(1) Subsection (2) applies where—

(a) an application to register a community interest in land is made,

(b) on the date on which the application is received by Ministers—

(i) missives for the sale and purchase of the land have been concluded, or

(ii) an agreement conferring an option to acquire the land exists, and

(c) the application does not disclose that such missives have been concluded or such an agreement exists.

(2) The owner of the land or, as the case may be, a creditor in a standard security with a right to sell the land must, within 21 days of receiving a copy of the application under section 37(5)(a)—

(a) provide Ministers with evidence of the concluded missives or (as the case may be) the agreement,

(b) where there is an agreement such as is mentioned in subsection (1)(b)(ii) which contains a date on which it will expire—

(i) notify Ministers of that date, and

(ii) provide Ministers with information about whether, and if so how, the agreement is capable of being extended.

(3) Subsection (4) applies where—

(a) an application to register a community interest in land is made,

(b) on the date on which the application is received by Ministers—

(i) missives for the sale and purchase of the land have been concluded, or

(ii) an agreement conferring an option to acquire the land exists,

(c) the application discloses that such missives have been concluded or such an agreement exists, and

(d) accordingly, by virtue of section 39(4A) and (5), no copy of the application is sent to the owner of the land or, as the case may be, a creditor in a standard security with a right to sell the land.

(4) Ministers must—

(a) send a copy of the application and the accompanying information to the owner of the land or, as the case may be, the creditor,

(b) notify the owner of the land or, as the case may be, the creditor that Ministers must decline to consider the application by virtue of section 39(5), and

(c) require the owner of the land or, as the case may be, the creditor to provide Ministers with the information mentioned in subsection (5) within 21 days of receipt of the copy of the application sent under paragraph (a).

(5) The information is—

(a) evidence of the concluded missives or, as the case may be, the agreement, and

(b) where there is an agreement such as is mentioned in subsection (3)(b)(ii) which contains a date on which it will expire—

(i) that date, and

(ii) information about whether, and if so how, the agreement is capable of being extended.]

Textual Amendments

F80 S. 39A inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 43, 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

40 Effect of registration S

(1) For so long as a community interest in land is registered the owner of the land, and any creditor in a standard security having a right to sell the land, is prohibited from—

(a) transferring that land (or any land of which that land forms part); or

(b) taking any action with a view to the transfer of that land (or any land of which that land forms part),

except in accordance with this Part of this Act.

(2) A transfer in breach of subsection (1)(a) above is of no effect.

(3) Subsection (1) above operates so as to prohibit transfers of, or other actions in relation to, land in respect of which no community interest has been registered only where that transfer, or action, also relates to land in respect of which a community interest has been registered.

(4) Subsection (1) above does not apply in relation to—

(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 (c. 35) or a decree in an action for the division and sale of land);

(c) a transfer between spouses [F81 or civil partners] in pursuance of an arrangement between them entered into at any time after they have ceased living together;

(d) a transfer of croft land to the crofter tenanting it;

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

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

(g) 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 this Part or Part 3 of this Act;

F82 (iv) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F83 (v) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(vi) which requires, or which but for the provisions of section 14 of the 1987 Act would require, the consent of Ministers under subsection (5) or (7) of section 12 of the 1987 Act;

[F84 (vii) by a registered social landlord (within the meaning of the Housing (Scotland) Act 2010 (asp 17) ) in pursuance of the power conferred by section 107 of that Act; ]

(viii) 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; and

(h) a transfer of land in consequence of—

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

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

(5) Action is taken with a view to a transfer of land when—

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

(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 the 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 interest was registered.

(6) In section 25 of the Conveyancing and Feudal Reform (Scotland) Act 1970 (c. 35) (exercise of power of a creditor in a standard security to sell the security subjects), after “may” there is inserted . “ , subject to sections 37(5)(e) or 40(1) of the Land Reform (Scotland) Act 2003 (asp 2) (prohibition of transfer of land registered under that Act except in accordance with its provisions), ”

(7) In subsection (4)(f) above, “statutory undertaker” shall be construed in accordance with section 214 of the Town and Country Planning (Scotland) Act 1997 (c. 8).

Textual Amendments

F81 Words in s. 40(4)(c) inserted (5.12.2005) by The Civil Partnership Act 2004 (Consequential Amendments) (Scotland) Order 2005 (S.S.I. 2003/623), art. 23

F82 S. 40(4)(g)(iv) repealed (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), s. 142(1), Sch. 5; S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F83 S. 40(4)(g)(v) repealed (1.8.2016) by Housing (Scotland) Act 2014 (asp 14), s. 104(3), sch. 2 para. 14(2); S.S.I. 2014/264, art. 2, sch. (with art. 4)

F84 S. 40(4)(g)(vii) substituted (1.4.2012) by The Housing (Scotland) Act 2010 (Consequential Modifications) Order 2012 (S.S.I. 2012/38), art. 1, Sch. para. 3

41 Provisions supplementary to and explanatory of section 40 S

(1) For the purposes of section 40(4)(e) above, companies are in the same group if they are, or are included in a number of, companies which, by virtue of section 170 of the Taxation of Chargeable Gains Act 1992 (c. 12), together form a group for the purposes of sections 171 to 181 of that Act.

(2) References in subsection (5) of section 40 above to the owner of land include references to the person in whom it has vested for the purposes of any such enactment as is mentioned in subsection (4)(g)(viii) of that section.

[F85 (3) Where an owner of land or a creditor in a standard security having a right to sell land makes a transfer of land as mentioned in any of paragraphs (a) to (h) of subsection (4) of section 40, the owner of the land or, as the case may be, the creditor must within 28 days of the transfer—

(a) notify Ministers of—

(i) the transfer,

(ii) the name and address of the person to whom the land was transferred, and

(iii) the date of the transfer, and

(b) provide Ministers with a description of the land transferred, including maps, plans or other drawings prepared to such specifications as may be prescribed.]

Textual Amendments

F85 S. 41(3) inserted (13.11.2015 for specified purposes, 15.4.2016 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 44, 142(1); S.S.I. 2015/358, art. 2, Sch.; S.S.I. 2015/399, art. 2, Sch. (with art. 3)

42 Power to modify sections 40(4) and (5) and 41 S

Ministers may by order modify sections 40(4) and (5) and 41 above or any provision thereof.

43 Anti-avoidance provisions S

(1) A transfer such as is mentioned in paragraph (a), (e) or (h) of subsection (4) of section 40 above is a transfer to which subsection (1) of that section applies if it is or forms part of a scheme or arrangement or is one of a series the main purpose or effect, or one of the main purposes or effects, of which is the avoidance of the requirements or consequences of this Part of this Act.

(2) Where land in respect of which a community interest is registered is being transferred otherwise than by way of a transfer to the community body which registered that interest, the transferor shall incorporate in the deed giving effect to the transfer a declaration—

(a) specifying which provision of subsection (4) of section 40 above operates so as to make the transfer one to which subsection (1) of that section does not apply; and

(b) where the provision so specified is paragraph (a), (e) or (h) of that subsection, stating that the transfer does not form part of a scheme or arrangement, and is not one of a series, such as is mentioned in subsection (1) above.

44 Duration and renewal of registration S

(1) A registered community interest has, subject to subsection (4) below, effect for a period of five years from the date when it was registered.

(2) A community body which has registered a community interest may, at any time within six months before the expiry of that period, apply under section 37 above to re register the interest.

(3) On such an application, Ministers may, subject to section 38 above, direct the Keeper to re-enter the interest in the Register.

(4) An interest so re registered continues to have effect as a registered community interest for a period of five years from the date on which the interest would otherwise have ceased to have effect under this section.

(5) A registered community interest does not cease to have effect on completion of a transfer such as is mentioned in subsection (4) of section 40 above.

[F86 (6) The Scottish Ministers must send written notice to a community body which has a registered community interest of the date on which that interest will cease to have effect unless it is re-registered (“the expiry date”).

(7) A notice under subsection (6) must be sent in the period beginning on the day which falls 12 months before the expiry date and ending 28 days after that day.]

Textual Amendments

F86 S. 44(6)(7) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 45, 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

[F87 44A Duty to notify changes to information relating to registered interest S

(1) This section applies where a community interest in land is registered in pursuance of an application under section 37.

(2) Where—

(a) the application contains information enabling Ministers to contact the community body which made the application, and

(b) there is a change in that information,

the community body must, as soon as reasonably practicable after the change, notify Ministers of the change.

(3) Where—

(a) the application contains information enabling Ministers to contact the owner of the land to which the application relates, and

(b) there is a change in that information,

the owner must, as soon as reasonably practicable after the change, notify Ministers of the change.

(4) Where—

(a) the application contains information relating to a creditor in a standard security over an interest in the land, and

(b) there is a change in that information,

the owner of the land to which the application relates must, as soon as reasonably practicable after the change, notify Ministers of the change.

(5) Subsection (6) applies where—

(a) there is a creditor in a standard security over an interest in the land to which the application relates, but

(b) the application does not disclose the existence of the creditor (whether because the standard security did not exist at the time the application was made or otherwise).

(6) The owner of the land to which the application relates must, as soon as reasonably practicable after the interest in land is registered—

(a) notify Ministers of the existence of the creditor, and

(b) provide Ministers with such information relating to the creditor as would enable Ministers to contact the creditor.

(7) Subsection (8) applies where there is a change in information provided by a community body or an owner of land in pursuance of the duty under subsection (2), (3), (4) or (6).

(8) The community body or, as the case may be, the owner of the land must as soon as reasonably practicable after the change notify Ministers of the change.]

Textual Amendments

F87 S. 44A inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 46, 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

45 Deletion of community interest in land S

(1) If Ministers are satisfied that there has, since the date on which they decided that a community interest should be registered, been a change in any matters to the extent that, if the application to register that community interest were made afresh, they would decide that the interest is not to be entered in the Register, they shall direct the Keeper to delete that interest.

(2) Ministers shall not, however, do so without first giving the community body which registered the community interest and the owner of the land an opportunity to state views on the proposed deletion.

46 Re-registration of community interest S

Nothing in section 44 or 45 above prevents a community body from applying to register an interest in land in respect of which, or in respect of part of which, it previously had an interest which has—

(a) ceased to have effect under section 44(1) or (4) above; or

(b) been deleted under section 45(1) above.

Chapter 3 S Activation of right to buy

47 Activation of right to buy S

(1) The right to buy land in which a community interest has been registered arises and may be exercised when the owner of the land or, as the case may be, a creditor in a standard security with a right to sell the land gives, or is deemed to have given, notice under section 48(1) below that a transfer is proposed.

(2) That right, however, is exercisable only in relation to particular holdings of land; accordingly, references in this and the following sections of this Part of this Act to land as respects which the right to buy is being exercised, is sought to be exercised or has been exercised are references to such holdings.

(3) Subsection (1) above shall not operate so as to provide a community body with a right to buy any land in respect of which it has not registered an interest in accordance with this Part of this Act.

(4) In subsection (2) above, “holding” has the same meaning as in subsections (14) and (15) of section 37 above.

48 Duties on owner, or creditor, proposing to transfer land S

(1) Where the owner of land in respect of which a community interest is registered or, as the case may be, a creditor in a standard security with a right to sell such land proposes to transfer that land (or any land of which that land forms part) by way of a transfer under this Part of this Act, the owner or, as the case may be, such a creditor shall notify that fact to—

(a) the community body, or bodies, in respect of which the interest is registered; and

(b) Ministers.

(2) Notification under subsection (1) above shall be given in such form and otherwise in accordance with such provisions as are prescribed.

(3) Subsection (1) above operates so as to require notification of a proposal to transfer land in respect of which no community interest has been registered only where that proposed transfer also relates to land in respect of which a community interest has been registered.

(4) Where notification under subsection (1) above is given by a creditor in a standard security with a right to sell the land, references in the following sections of this Part of this Act to the owner of the land shall, for the purposes of determining the procedure which is to apply in respect of the sale of the land by that creditor, be deemed to be references to that creditor.

49 Procedure following receipt of notice under section 48 S

(1) On receipt of notification under section 48 above from an owner of land, Ministers shall direct the Keeper to enter particulars of the notification in the Register.

(2) Not later than 7 days after such receipt Ministers shall—

(a) send to the community body which has registered the interest in the land a notice in the prescribed form seeking its confirmation in writing that it will exercise its right to buy the land; and

(b) send to the owner of the land a notice in the prescribed form narrating their compliance with paragraph (a) above.

(3) A notice under subsection (2)(a) above shall specify the date referred to in and narrate the effect of subsection (4) below.

(4) If, by the date specified in the notice, being a date not later than 30 days after it was sent, the community body has not caused its confirmation to be received by Ministers, Ministers shall be deemed to have received written notice from the community body under subsection (1) of section 54 below that it will not exercise its right to buy the land and subsections (2) to (4) of that section shall apply accordingly.

(5) Ministers shall send a copy of—

(a) the notice sent under subsection (2)(a) above; and

(b) any confirmation received by them in pursuance of this section,

to the owner of the land and to the Keeper.

(6) Any failure to comply with the time limit specified in subsection (2) above does not affect the validity of anything done under this section.

50 Power to activate right to buy land where breach of this Part S

(1) If, on an application made to it by a community body which has registered an interest in land, the Lands Tribunal determine that—

(a) the owner of that land, or a creditor in a standard security with a right to sell that land, has acted in breach of a prohibition under—

(i) subsection (5)(e) of section 37 above; or

(ii) section 40(1) above; and

(b) each of the conditions set out in subsection (2) below is met,

the Tribunal shall notify Ministers of that fact.

(2) Those conditions are—

(a) that the action referred to in subsection (1)(a) above occurred during the period of ten years immediately prior to the date on which the application was made;

F88 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) that the community interest in the land which had been registered, or applied for, before the action referred to in subsection (1)(a) above remains in effect or another has, since then, been registered; and

(d) that Ministers have not, on or after the date on which the action referred to in subsection (1)(a) above occurred, received, or been deemed to have received, written notice under subsection (1) of section 54 below from the community body which had, on that date, registered, or applied to register, an interest in the land.

(3) On receipt of notice under subsection (1) above Ministers shall—

(a) give notice of the Tribunal’s determination to each community body which—

(i) had registered, or had applied to register, an interest in the land on the date on which the action referred to in subsection (1)(a) above occurred; and

(ii) has such an interest on the date on which the notice is served; and

(b) send a copy of the notice to the owner of the land[F89 , to any creditor in a standard security with a right to sell the land] and to the Keeper.

(4) A notice under subsection (3) above shall narrate the effect of subsection (5) below.

(5) Where notice is given by Ministers under subsection (3) above the owner of the land is, for the purposes of this Part of this Act, deemed to have, on the date on which notice was given by Ministers, given notice under section 48(1) above that a transfer of the land is proposed.

[F90 (6) For the purposes of subsection (2)(c), the circumstances in which a community interest in land remains in effect include that—

(a) the community body that applied under subsection (1) has, in accordance with subsection (2) of section 44, applied to re-register the interest, and

(b) the Keeper has, by virtue of a direction under subsection (3) of that section, re-entered the interest in the Register.]

Textual Amendments

F88 S. 50(2)(b) repealed (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), s. 142(1), Sch. 5; S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F89 Words in s. 50(3)(b) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 47(a), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F90 S. 50(6) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 47(b), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

Chapter 4 S Procedure after activation of right to buy

51 Exercise of right to buy: approval of community and consent of Ministers S

(1) A community body shall not proceed to buy land under this Part of this Act without—

(a) the approval of the community; and

(b) the consent of Ministers.

(2) The community are to be taken as having given their approval for the purposes of subsections (1) above and (3) below if Ministers are satisfied—

(a) that—

(i) [F91 the proportion] of the members of the community F92 ...[F93 who] have voted in a ballot F94 ... on the question whether the community body should buy the land; [F95 is, in the circumstances, sufficient to justify the community body's proceeding to buy the land;] F96 ...

F97 (ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) that the majority of those voting have voted in favour of the proposition that the community body buy the land.

(3) Ministers shall not consent for the purposes of subsection (1) above unless the community have given their approval and Ministers are satisfied—

F98 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) that the community body continues to comply with the provisions of section 34 above;

(c) that what the community body proposes to do with the land is compatible with furthering the achievement of sustainable development;

(d) that the proposed purchase of the land is in the public interest; and

(e) that there has not, since the date on which they decided the community body’s interest should be registered, been a change in any matters to the extent that, if the application to register the community interest were made afresh, they would decide that the interest is not to be entered in the Register.

(4) A community body may require Ministers to treat as confidential any information or document relating to arrangements for the raising or expenditure of money to enable the land to be put to a particular use, being information or a document made available to Ministers for the purposes of subsection (3) above.

(5) Ministers shall, within the time limit specified in subsection (6) below, send notice of their decision as to consent and their reasons for it in writing to the community body and to the owner of the land and shall direct the Keeper to enter a record of that decision in the Register.

(6) That time limit is—

(a) where one community body has confirmed that it will exercise its right to buy the land, the 21 days following receipt [F99 by Ministers] of notification, under section 52(3) below, of the result of the ballot F100 ...; or

(b) where two or more community bodies have confirmed that they will exercise their right to buy the land, the 21 days following receipt of such notification in respect of the last of the ballots F101 ....

[F102 (6A) Where a community body makes representations under section 51C(1), the references to 21 days in paragraphs (a) and (b) of subsection (6) are to be read as references to 35 days.]

(7) Any failure to comply with the time limit specified in subsection (6) above does not affect the validity of anything done under this section.

[F103 (8) In this section, references to the community are, as respects a community body, references to—

(a) the community defined in relation to that body under section 34(1)(a), (1A)(a) or (1B)(a); or

(b) where that body is a body mentioned in section 34(A1)(b), the community to which that body relates.]

Textual Amendments

F91 Words in s. 51(2)(a)(i) substituted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 48(a)(i), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F92 Words in s. 51(2)(a) repealed (15.4.2016) by The Community Empowerment (Scotland) Act 2015 (Consequential Modifications and Savings) Order 2016 (S.S.I. 2016/28), arts. 1(1), 2(2)(a) (with art. 3)

F93 Word in s. 51(2)(a)(i) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 48(a)(ii), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F94 Words in s. 51(2)(a)(i) repealed (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), s. 142(1), Sch. 4 para. 8(3)(a); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F95 Words in s. 51(2)(a)(i) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 48(a)(iii), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F96 Word in s. 51(2)(a) repealed (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 48(b), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F97 S. 51(2)(a)(ii) repealed (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 48(c), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F98 S. 51(3)(a) repealed (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), s. 142(1), Sch. 5; S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F99 Words in s. 51(6)(a) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), s. 142(1), Sch. 4 para. 8(3)(b)(i); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F100 Words in s. 51(6)(a) repealed (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), s. 142(1), Sch. 4 para. 8(3)(b)(ii); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F101 Words in s. 51(6)(b) repealed (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), s. 142(1), Sch. 4 para. 8(3)(b)(iii); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F102 S. 51(6A) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 51(2), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F103 S. 51(8) inserted (15.4.2016) by The Community Empowerment (Scotland) Act 2015 (Consequential Modifications and Savings) Order 2016 (S.S.I. 2016/28), arts. 1(1), 2(2)(b) (with art. 3)

[F104 51A Ballots under section 51: appointment of ballotter, etc. S

(1) The ballot is to be conducted by a person (the “ballotter”) appointed by Ministers who appears to them to be independent and to have knowledge and experience of conducting ballots.

(2) Ministers must, within the period mentioned in subsection (3), provide the ballotter with—

(a) a copy of the application made by the community body under section 37 to register an interest in the land in relation to which the body has confirmed it will exercise the right to buy, and

(b) such other information as may be prescribed.

(3) The period is the period of 28 days beginning with the date on which a valuer is appointed under section 59(1) in respect of the land in relation to which the community body has confirmed it will exercise the right to buy.

(4) Ministers must provide the community body with such details of the ballotter as will enable the community body to contact the ballotter.

(5) The community body must, before the end of the period of 7 days following receipt of notification under section 60(2) of the valuation of the land, provide the ballotter with wording for the proposition mentioned in section 51(2)(b); and the ballotter must conduct the ballot on the basis of such wording.

(6) At the same time as providing that wording, the community body must also provide the ballotter, in such form as may be prescribed, with such information as may be prescribed relating to—

(a) the community body,

(b) its proposals for use of the land in relation to which it has confirmed it will exercise its right to buy,

(c) the valuation, and

(d) any other matters.

(7) The expense of conducting the ballot is to be met by Ministers.]

Textual Amendments

F104 S. 51A inserted (13.11.2015 for specified purposes, 15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 49, 142(1); S.S.I. 2015/358, art. 2, Sch.; S.S.I. 2015/399, art. 2, Sch. (with art. 3)

[F105 51B Consent under section 51: duty to provide information S

(1) For the purposes of deciding whether they are satisfied as mentioned in section 51(3) in relation to a community body, Ministers must take into account—

(a) the information mentioned in subsection (2), and

(b) any other information they consider relevant.

(2) The information referred to in subsection (1)(a) is information—

(a) provided by the community body, and

(b) that is of such a kind as may be prescribed.

(3) Information mentioned in subsection (2) must be provided in the prescribed form.

(4) Information that may be prescribed under subsection (2)(b) includes, in particular—

(a) information relating to the matters mentioned in section 51(3), and

(b) additional information relating to such information.

(5) Ministers may, no later than 7 days after receiving the information mentioned in subsection (2), request the community body to provide such further information as they consider necessary.

(6) The community body must, no later than 14 days after receiving any such request, provide Ministers with the further information requested.]

Textual Amendments

F105 S. 51B inserted (13.11.2015 for specified purposes, 15.4.2016 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 50, 142(1); S.S.I. 2015/358, art. 2, Sch.; S.S.I. 2015/399, art. 2, Sch. (with art. 3)

[F106 51C Circumstances affecting result of ballot S

(1) Within 14 days of receipt by the community body of notification under section 52(3) of the result of the ballot, the body may make representations to Ministers in writing about any circumstances that the body considers have affected the result of the ballot.

(2) Where the community body makes such representations it must, when making them—

(a) provide Ministers with such evidence as is reasonably necessary to establish the existence and effect of the circumstances to which the representations relate, and

(b) send a copy of the representations and the evidence to the owner of the land to which the ballot relates.

(3) Within 7 days of receipt of any representations under subsection (1), Ministers may request the community body to provide such further information relating to the representations or related evidence as they think fit.

(4) Within 7 days of receiving such a request, the community body must respond to it.

(5) Within 7 days of receipt of a copy of the representations and evidence under subsection (2)(b), the owner of the land may provide Ministers with comments on the representations and evidence.

(6) Where the owner of the land provides comments under subsection (5) the owner must, when providing them, send a copy of the comments to the community body.

(7) Within 7 days of receipt of a copy of comments under subsection (6), the community body may give Ministers views on the comments.

(8) Within 7 days of receipt of any views under subsection (7), Ministers may request the community body to provide such further information relating to the views as they think fit.

(9) Within 7 days of receiving such a request, the community body must respond to it.

(10) In deciding whether they are satisfied as mentioned in section 51(2)(a), Ministers must take account of any—

(a) representations made under subsection (1),

(b) evidence provided under subsection (2)(a),

(c) further information provided under subsection (4) or (9),

(d) comments under subsection (5), and

(e) views under subsection (7).]

Textual Amendments

F106 S. 51C inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 51(1), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

52 Ballot procedure S

(1) The ballot shall be conducted as prescribed; and the provisions prescribed shall include provision for the ascertainment and publication of the number of persons eligible to vote in the ballot, the number who did so and the numbers of valid votes respectively cast for and against the proposition mentioned in section 51(2)(b) above.

F107 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The [F108 ballotter appointed under section 51A] shall, within the period set out in subsection (4) below and in the prescribed form of return, notify [F109 Ministers, the community body, the owner of the land to which the ballot relates and any creditor in a standard security with a right to sell the land of]—

(a) the result;

(b) the number of persons eligible to vote;

(c) the number who voted; F110 ...

(d) the number who voted in favour of the proposition mentioned in section 51(2)(b) above,

[F111 (e) the wording of that proposition, and

(f) any information provided by the ballotter to persons eligible to vote in the ballot.]

F112 ...

[F113 (4) The period referred to in subsection (3) above is—

(a) the period of 12 weeks beginning with the date on which a valuer is appointed under section 59(1) in respect of the land in relation to which the community body has confirmed it will exercise its right to buy, or

(b) where—

(i) the ballotter receives notification under section 60(3C), and

(ii) the date notified under paragraph (c) of that subsection is after the end of the 12 week period beginning with the date on which a valuer is appointed under section 59(1),

the period beginning with the date on which a valuer is appointed under section 59(1) and ending with the day after the date notified to the ballotter under section 60(3C).]

[F114 (5) Within 7 days of receiving notification under subsection (3) above, Ministers may—

(a) require the ballotter to provide such information relating to the ballot as they think fit,

(b) require the community body to provide such information relating to any consultation with those eligible to vote in the ballot undertaken during the period in which the ballot was carried out as Ministers think fit.

(6) The validity of anything done under this Part of this Act is not affected by any failure by a ballotter to comply with the time limit specified in subsection (4).]

[F115 (7) Provision may be prescribed for or in connection with—

(a) reviewing whether a ballot was conducted in accordance with provision prescribed under subsection (1),

(b) providing notification to such persons, or description of persons, as may be prescribed that a ballot has not been so conducted,

(c) in a case where a ballot has not been so conducted, requiring a further ballot to be conducted on such a basis, and by such persons or description of persons, as may be prescribed,

(d) requiring any such further ballot to be conducted—

(i) in compliance with such conditions as may be prescribed (including conditions that the ballot be conducted in accordance with provision prescribed under subsection (1)),

(ii) within such timescales as may be prescribed,

(e) specifying persons, or descriptions of persons, who are to meet the expenses of conducting any such further ballot,

(f) specifying that any review mentioned in paragraph (a) be carried out by—

(i) such persons,

(ii) such description of persons, or

(iii) such a court or tribunal,

as may be prescribed,

(g) specifying the action that may be taken by such persons, persons of such description or such a court or tribunal following such a review.]

Textual Amendments

F107 S. 52(2) repealed (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), s. 142(1), Sch. 5; S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F108 Words in s. 52(3) substituted (13.11.2015 for specified purposes, 15.4.2016 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), s. 142(1), Sch. 4 para. 8(4)(a)(i); S.S.I. 2015/358, art. 2, Sch.; S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F109 Words in s. 52(3) inserted (13.11.2015 for specified purposes, 15.4.2016 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), s. 142(1), Sch. 4 para. 8(4)(a)(ii); S.S.I. 2015/358, art. 2, Sch.; S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F110 Word in s. 52(3) repealed (13.11.2015 for specified purposes, 15.4.2016 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), s. 142(1), Sch. 4 para. 8(4)(a)(iii); S.S.I. 2015/358, art. 2, Sch.; S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F111 S. 52(3)(e)(f) inserted (13.11.2015 for specified purposes, 15.4.2016 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), s. 142(1), Sch. 4 para. 8(4)(a)(iv); S.S.I. 2015/358, art. 2, Sch.; S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F112 Words in s. 52(3) repealed (13.11.2015 for specified purposes, 15.4.2016 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), s. 142(1), Sch. 4 para. 8(4)(a)(v); S.S.I. 2015/358, art. 2, Sch.; S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F113 S. 52(4) substituted (27.6.2018) by Land Reform (Scotland) Act 2016 (asp 18), s. 130(1), sch. 1 para. 1(3) (with s. 128); S.S.I. 2018/138, art. 3, sch. 2 (with reg. 4)

F114 S. 52(5)(6) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), s. 142(1), Sch. 4 para. 8(4)(b); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F115 S. 52(7) inserted (13.11.2015 for specified purposes, 15.4.2016 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 52, 142(1); S.S.I. 2015/358, art. 2, Sch.; S.S.I. 2015/399, art. 2, Sch. (with art. 3)

53 Provisions supplementary to section 51: salmon fishings and minerals S

Where the land in which a community interest has been registered is salmon fishings or mineral rights, Ministers shall not consent under section 51(1) above to the exercise of the right to buy unless they are (additionally to the matters as to which they are to be satisfied under section 51(3) above) satisfied that—

(a) the salmon fishings are in waters which are within or contiguous to;

(b) where in separate ownership from the land, the mineral rights are exercisable within,

land which the community body is, at the same time, exercising its right to buy or already owns.

54 Declinature or extinction of right to buy S

(1) If, at any time, a community body which has registered a community interest decides that it will not exercise its right to buy the land, it shall give Ministers written notice of its decision.

(2) On receipt of a notice under subsection (1) above, Ministers shall—

(a) send a copy of it to the Keeper and direct the Keeper to delete the community interest from the Register; and

(b) notify the owner of the land of that fact.

(3) Where, when that notice is given, that right to buy has arisen, the right is then extinguished.

(4) Nothing in or done under subsections (1) to (3) above prevents a community body from registering a community interest in the same land for a second or subsequent time.

(5) If, at any time after the owner of land has given notice under section 48(1) above but before the owner has concluded missives with a community body for the sale and purchase of the land in respect of which a right to buy has arisen, the owner of the land decides not to proceed further with the proposed transfer the owner shall give written notice of that fact to—

(a) Ministers; and

(b) each community body which has registered an interest in the land.

(6) Ministers shall send a copy of the notice given under subsection (5) above to the Keeper.

(7) Where a notice is given under subsection (5) above, the right to buy the land which arose under section 47 above is extinguished.

(8) Subsections (5) and (7) above do not apply where the right to buy land has arisen and is being exercised by virtue of the owner of land being deemed, by section 50(5) above, to have provided notice under section 48(1) above.

(9) Nothing in subsection (7) above prevents a right to buy land from arising for a second or subsequent time.

55 Right to buy same land exercisable by only one community body S

(1) Only one community body may exercise the right to buy land in which two or more community bodies have registered community interests.

(2) Where two or more community bodies have confirmed that they will exercise their rights to buy such land it is for Ministers to decide which one is to proceed.

(3) On Ministers so deciding—

(a) the other community body’s right to buy the land is extinguished; and

(b) they shall—

(i) direct the Keeper to delete its interest from the Register; and

(ii) notify the owner of the land and the community bodies of that fact.

(4) Where a community body has confirmed that it will buy the land as respects which a crofting community body has applied to Ministers under section 73 below for consent to exercise the right to buy, it is for Ministers to decide which body is to proceed.

(5) Where Ministers decide that the crofting community body is to proceed—

(a) the community body’s right to buy the land is extinguished; and

(b) they shall—

(i) direct the Keeper to delete its interest from the Register; and

(ii) notify the owner of the land, the crofting community body and the community body of that fact.

56 Procedure for buying S

(1) It is for the community body to make the offer to buy in exercise of the right conferred by this Part of this Act.

(2) The offer shall be at a price—

(a) agreed between the community body and the owner of the land; or

(b) where no such agreement is reached, equal to—

(i) the value assessed by the appointed valuer; or

(ii) if that value is the subject of an appeal under section 62 below, the value determined by the appeal,

and shall specify the date of entry and of payment of the price in accordance with subsection (3) below.

(3) The date of entry and of payment of the price shall be—

(a) a date not later than [F116 8] months from the date when the community body sent the confirmation sought by Ministers under section 49(2)(a) above of its intention to buy;

(b) where the price assessed by the appointed valuer is the subject of an appeal under section 62 below which has not, within the period of 4 months after the date when the community body sent that confirmation, been—

(i) determined; or

(ii) abandoned following agreement between the community body and the owner of the land,

a date not later than 2 months after the appeal is so determined or, as the case may be, abandoned; or

(c) such later date as may be agreed between the community body and the owner of the land.

(4) The offer may include such other reasonable conditions as are necessary or expedient to secure the efficient progress and completion of the transfer.

(5) If a community body has not, within the period fixed by or agreed under subsection (3) above, done any of the things mentioned in subsection (6) below, the community body’s right to buy the land is extinguished and Ministers shall—

(a) direct the Keeper to delete its interest in the land from the Register; and

(b) notify the owner of the land of that fact.

(6) The things referred to in subsection (5) above are—

(a) concluding missives with the owner of the land for its sale to the community body;

(b) if the community body has not so concluded missives, taking all steps which, in the opinion of the Lands Tribunal, it could reasonably have taken in the time available towards so concluding missives short of applying to the Lands Tribunal for an order under section 57 below; and

(c) where—

(i) paragraph (b) above applies;

(ii) all such steps as are there mentioned have been taken; and

(iii) there has been, in the opinion of the Lands Tribunal, reasonably sufficient time also to apply to the Lands Tribunal for an order under section 57 below,

applying to the Lands Tribunal accordingly.

[F117 (7) Where a later date is agreed as mentioned in subsection (3)(c), the community body must, within 7 days of the agreement—

(a) notify Ministers in writing of the agreement,

(b) inform Ministers—

(i) of the date on which the agreement was made, and

(ii) what the later date is, and

(c) provide evidence to Ministers of the matters mentioned in paragraph (b).]

Textual Amendments

F116 Word in s. 56(3)(a) substituted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 54(a), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F117 S. 56(7) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 54(b), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

57 Powers of Lands Tribunal in event of failure or delay S

(1) If, on application made to it by the owner of the land or the community body, the Lands Tribunal is satisfied that, following the making of an offer in pursuance of section 56 above, the owner of the land or the community body has unreasonably delayed the progress of transferring title to the land to the community body, the Tribunal may order the owner of the land or, as the case may be, the community body to take such remedial action as is specified in the order and to do so within such time as is so specified.

(2) If a community body—

(a) fails to comply with an order under subsection (1) above; and

(b) has not, within the time in which remedial action specified in such order is required to be taken, given notice under section 54 above to Ministers that it no longer wishes to exercise its right to buy the land,

the Lands Tribunal may make an order extinguishing its right to buy the land and, where the Tribunal makes such an order, it shall send a copy of the order to Ministers and the owner of the land.

(3) Ministers shall, if an order is made under subsection (2) above—

(a) direct the Keeper to delete the community body’s interest from the Register; and

(b) notify the owner of the land of that fact.

(4) If an owner of land—

(a) fails to comply with an order under subsection (1) above; and

(b) has not, within the time in which remedial action specified in such order is required to be taken, given notice under section 54 above to Ministers and the community body that the owner of the land no longer wishes to proceed with the transfer of the land,

the Lands Tribunal may make an order authorising the community body to acquire the land subject to such terms and conditions as may be specified in the order and requiring the owner of the land to transfer the land to the community body in accordance with such terms and conditions.

(5) If an owner of land refuses or fails to effect a transfer of land in pursuance of an order under subsection (4) above in accordance with such terms and conditions as may be specified in the order, the Lands Tribunal may authorise its principal clerk to adjust, execute and deliver such deeds or other documents as are necessary to complete the transfer to the like force and effect as if the owner had acted in the manner required by the order.

[F118 (6) Where an application under subsection (1) is made by the owner of the land or the community body, the owner or, as the case may be, the community body must, within 7 days of the date on which the application is made, notify Ministers in writing of—

(a) the making of the application, and

(b) the date of making the application.

(7) Failure to comply with the requirement in subsection (2) to send a copy of the order made under that subsection, or with subsection (6), has no effect on—

(a) the community body's right to buy the land, or

(b) the validity of the application under subsection (1).]

Textual Amendments

F118 S. 57(6)(7) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 55, 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

58 Procedure where right to buy activated by virtue of notice under section 50(3) S

(1) Where a right to buy land arises, and may be exercised, by virtue of Ministers sending notice under section 50(3) above, subsections (2) to (6) below apply in place of sections 56 and 57 above in relation to the exercise of that right.

(2) It is for the community body to secure the expeditious exercise of such a right to buy and, in particular—

(a) to prepare the documents necessary to effect the transfer; and

(b) in so doing, to ensure that the land in respect of which the right to buy has arisen is the same as the land to be transferred.

(3) The community body shall pay a price—

(a) equal to the value assessed by the appointed valuer; or

(b) determined by an appeal.

(4) The owner of the land being bought is obliged—

(a) to make available to the community body such deeds and other documents as are sufficient to enable the body to proceed to complete its title to the land; and

(b) to transfer title accordingly.

(5) If the owner of the land refuses or fails to make those deeds and other documents available or they cannot be found, the Lands Tribunal may, on the application of the community body, order the owner or any other person appearing to the Tribunal to have those deeds and documents to produce them.

(6) If the owner of the land refuses or fails to effect such transfer as is mentioned in subsection (4) above, the Lands Tribunal may, on the application of the community body, authorise its principal clerk to adjust, execute and deliver such deeds or other documents as will complete such transfer to the like force and effect as if done by the owner.

Chapter 5 S Valuation of land

59 Assessment of value of land S

(1) Ministers shall, within 7 days of the receipt of a confirmation, sought by them under section 49(2)(a) above, that a community body will exercise its right to buy the land, appoint a valuer, being a person who appears to Ministers to be suitably qualified, independent and to have knowledge and experience of valuing land of a kind which is similar to the land being bought, to assess the value of the land.

(2) The validity of anything done under this section is not affected by any failure by Ministers to comply with the time limit specified in subsection (1) above.

(3) In assessing the value of land in pursuance of an appointment under subsection (1) above, a valuer—

(a) does not act on behalf of the owner of the land or the community body which is exercising its right to buy the land; and

(b) shall act as an expert and not as an arbiter.

(4) The value to be assessed is the market value of the land—

(a) as at the date of notification under section 48(1) above which gave rise to the right to buy the land; or

(b) in a case where the community body’s interest was registered in pursuance of an application to which section 39 above applied, as at the date of Ministers' receipt of that application.

(5) Where the land the value of which is to be assessed includes salmon fishings or mineral rights, the value of those fishings or rights shall be separately assessed.

(6) The “market value” of land, for the purposes of subsection (4) above, is the aggregate of—

(a) the value it would have on the open market as between a seller and a buyer both of whom are, as respects the transaction, willing; and

(b) where a community body is exercising a right to buy which has arisen in relation to part only of the land in respect of which the owner has given notice under section 48(1) above that a transfer is proposed, the amount of any diminution in the value of the other part of that land which is attributable to the fact that part only of the land is being bought by the body.

(7) In assessing, for those purposes, the value which land would have in the circumstances mentioned in subsection (6)(a) above—

(a) account may be taken, insofar as a seller and a buyer of the land such as are mentioned in subsection (6) above would do so, of any factor attributable to the known existence of a person who (not being the community body which is exercising its right to buy the land) would be willing to buy the land at a price higher than other persons because of a characteristic of the land which relates peculiarly to that person’s interest in buying it;

(b) no account shall be taken of—

(i) the registration of an interest in or the exercise of a right to buy the land by a community body under this Part of this Act;

(ii) the absence of the period of time during which the land would, on the open market, be likely to be advertised and exposed for sale;

(iii) any depreciation in the value of any other land owned by the seller;

(iv) the expenses of the valuation or otherwise related to the sale and purchase of the land.

(8) Where the proposed transfer which gave rise to a community body’s right to buy land was conditional upon moveable property belonging to the owner of the land and used in connection with it being sold with the land, the appointment of the valuer shall be extended to include the valuation of that moveable property.

(9) In any case where that appointment is so extended the moveable property shall be valued separately from the land, individual items of moveable property shall be valued separately from each other and the provisions of this section relating to the assessment of the value of land shall, so far as appropriate, apply for the purposes of the valuation of the moveable property.

(10) The expense of a valuation under this section shall be met by Ministers.

60 Procedure for valuation S

(1) In carrying out a valuation under section 59 above, the valuer shall invite the owner of the land and the community body which is exercising its right to buy the land to make written representations about the value of the land and any moveable property being bought with the land and shall consider any representations made accordingly.

[F119 (1A) Where written representations under subsection (1) are received—

(a) from the owner of the land, the valuer must invite the community body which is exercising its right to buy the land to send its views on the representations in writing,

(b) from the community body which is exercising its right to buy the land, the valuer must invite the owner of the land to send the owner's views on the representations in writing.

(1B) In carrying out a valuation under section 59, the valuer must consider any views sent under subsection (1A).]

(2) The valuer shall, within the period set out in subsection (3) below, notify Ministers, the owner of the land and the community body which is exercising its right to buy the land of the assessed value of the land and of any moveable property which has been valued.

(3) The period referred to in subsection (2) above is the period of [F120 8] weeks beginning with the date of appointment of the valuer or such other longer period as Ministers may, on an application by the valuer, fix.

[F121 (3A) An application under subsection (3) must be made within the period of 21 days beginning with the date of appointment of the valuer.

(3B) Any longer period as mentioned in that subsection must be fixed under that subsection within the period of 7 days beginning with the day on which the application was received.

(3C) Where such a longer period is fixed, Ministers must notify the persons mentioned in subsection (3D) of—

(a) the fact that a longer period has been so fixed,

(b) the length of the period, and

(c) the date on which the period ends.

(3D) The persons are—

(a) the community body which is exercising its right to buy the land,

(b) the person appointed to conduct the ballot in relation to the land, and

(c) the owner of the land.]

(4) The validity of anything done under this Part of this Act is not affected by any failure by a valuer to comply with the time limit specified in subsection (3) above.

Textual Amendments

F119 S. 60(1A)(1B) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 56(a), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F120 Word in s. 60(3) substituted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 56(b), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F121 S. 60(3A)-(3D) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 53(2), 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

[F122 60A Liability of owner of land for valuation expenses S

(1) Subsection (2) applies where—

(a) Ministers have received a confirmation sought by them under section 49(2)(a) that a community body will exercise its right to buy land in which it has a registered interest, and

(b) after Ministers have appointed a valuer under section 59(1) to assess the value of the land, the owner of the land gives notice under section 54(5) of the owner's decision not to proceed further with the proposed transfer.

(2) Ministers may require the owner of the land to pay any expense incurred by them in connection with the valuation of the land under section 59 by sending the owner a demand for payment of the expense.

(3) Where Ministers are considering sending a demand under subsection (2), they may request the owner of the land to provide such information as they consider necessary for the purposes of enabling Ministers to determine whether or not to send the demand.

(4) The owner of the land may, within 21 days of the receipt of a demand under subsection (2), appeal to the sheriff against the demand.

(5) The decision of the sheriff in an appeal under subsection (4) is final.

(6) The owner of the land must pay the amount specified in a demand under subsection (2)—

(a) within 28 days of receipt, or

(b) where an appeal against the demand is made under subsection (4) and not upheld, within 28 days of the determination of the appeal.]

Textual Amendments

F122 S. 60A inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 57, 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

Chapter 6 S Appeals

61 Appeals S

(1) An owner of land may, by summary application, appeal to the sheriff against—

(a) a decision by Ministers that a community interest in the land is to be entered in the Register; or

(b) a decision by Ministers to give consent to the exercise by a community body of its right to buy the land.

(2) A community body may, by summary application, appeal to the sheriff against—

(a) a decision by Ministers that its community interest is not to be entered in the Register; or

(b) a decision by Ministers not to give consent to the exercise by the community body of its right to buy.

(3) A person who is a member of a community F123 ... F124 ... may, by summary application, appeal to the sheriff against—

(a) a decision by Ministers that a community interest in land is to be entered in the Register on the application of the community body; or

(b) a decision by Ministers to consent to the exercise of the community body’s right to buy land.

[F125 (3A) A creditor in a standard security with a right to sell land may appeal to the sheriff against—

(a) a decision by Ministers that a community interest in the land is to be entered in the Register, or

(b) a decision by Ministers to give consent to the exercise by a community body of its right to buy the land.]

(4) An appeal under subsection (1), (2) [F126 , (3) or (3A)] above shall be lodged within 28 days of the date on which Ministers decided whether to enter the community interest or, as the case may be, whether to consent to the exercise of the right to buy land.

(5) The sheriff in whose sheriffdom the land or any part of it is situated has jurisdiction to hear an appeal under this section.

(6) Where an appeal is made—

(a) under subsection (1) above the owner shall intimate that fact to—

(i) the community body; F127 ...

(ii) Ministers; [F128 and

(iii) any creditor in a standard security with a right to sell the land to which the appeal relates;]

(b) under subsection (2) above the community body shall intimate that fact to—

(i) the owner; F129 ...

(ii) Ministers; [F130 and

(iii) any creditor in a standard security with a right to sell the land to which the appeal relates;]

(c) under subsection (3) above the member of the community shall intimate that fact to—

(i) the community body;

(ii) the owner; F131 ...

(iii) Ministers [F132 and

(iv) any creditor in a standard security with a right to sell the land to which the appeal relates;] [F133 or

(d) under subsection (3A) above, the creditor must intimate that fact to—

(i) the community body,

(ii) the owner, and

(iii) Ministers.]

(7) The decision of the sheriff in an appeal under this section—

(a) may require rectification of the Register;

(b) may impose conditions upon the appellant;

(c) is final.

[F134 (8) In this section, references to the community are, as respects a community body, references to—

(a) the community defined in relation to that body under section 34(1)(a), (1A)(a) or (1B)(a); or

(b) where that body is a body mentioned in section 34(A1)(b), the community to which that body relates.

(9) In subsection (3), the references to the community body are to the community body—

(a) in relation to which the community is defined as mentioned in subsection (8)(a); or

(b) that relates to the community as mentioned in subsection (8)(b).]

Textual Amendments

F123 Words in s. 61(3) repealed (15.4.2016) by The Community Empowerment (Scotland) Act 2015 (Consequential Modifications and Savings) Order 2016 (S.S.I. 2016/28) , arts. 1(1) , 2(3)(a) (with art. 3 )

F124 Words in s. 61(3) repealed (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6) , s. 142(1) , Sch. 5 ; S.S.I. 2015/399 , art. 2 , Sch. (with art. 3 )

F125 S. 61(3A) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6) , ss. 58(a) , 142(1) ; S.S.I. 2015/399 , art. 2 , Sch. (with art. 3 )

F126 Words in s. 61(4) substituted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6) , ss. 58(b) , 142(1) ; S.S.I. 2015/399 , art. 2 , Sch. (with art. 3 )

F127 Word in s. 61(6)(a) repealed (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6) , ss. 58(c)(i) , 142(1) ; S.S.I. 2015/399 , art. 2 , Sch. (with art. 3 )

F128 S. 61(6)(a)(iii) and word inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6) , ss. 58(c)(ii) , 142(1) ; S.S.I. 2015/399 , art. 2 , Sch. (with art. 3 )

F129 Word in s. 61(6)(b) repealed (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6) , ss. 58(c)(iii) , 142(1) ; S.S.I. 2015/399 , art. 2 , Sch. (with art. 3 )

F130 S. 61(6)(b)(iii) and word substituted for word (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6) , ss. 58(c)(iv) , 142(1) ; S.S.I. 2015/399 , art. 2 , Sch. (with art. 3 )

F131 Word in s. 61(6)(c) repealed (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6) , ss. 58(c)(v) , 142(1) ; S.S.I. 2015/399 , art. 2 , Sch. (with art. 3 )

F132 S. 61(6)(c)(iv) and word inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6) , ss. 58(c)(vi) , 142(1) ; S.S.I. 2015/399 , art. 2 , Sch. (with art. 3 )

F133 S. 61(6)(d) and word inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6) , ss. 58(c)(vii) , 142(1) ; S.S.I. 2015/399 , art. 2 , Sch. (with art. 3 )

F134 S. 61(8)(9) inserted (15.4.2016) by The Community Empowerment (Scotland) Act 2015 (Consequential Modifications and Savings) Order 2016 (S.S.I. 2016/28) , arts. 1(1) , 2(3)(b) (with art. 3 )

62 Appeals to Lands Tribunal: valuation S

(1) The owner of the land and the community body which is exercising its right to buy the land may appeal to the Lands Tribunal against the valuation carried out under section 59 above.

(2) An appeal under this section shall state the grounds on which it is being made and shall be lodged within 21 days of the date of notification under section 60 above.

(3) In an appeal under this section, the Lands Tribunal may reassess the value of—

(a) the land;

(b) any moveable property used in connection with, and being sold with, the land; or

(c) both the land and any such moveable property.

(4) The valuer whose valuation is appealed against may be a witness in the appeal proceedings.

F135 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F135 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) The Lands Tribunal shall give reasons for its decision on an appeal under this section and issue a written statement of those reasons F136 ...[F137 -

(a) within 8 weeks of hearing the appeal, or

(b) where subsection (7A) applies, by such later date referred to in paragraph (b)(ii) of that subsection.]

[F138 (7A) This section applies where—

(a) the Lands Tribunal considers that it is not reasonable to issue a written statement mentioned in subsection (7) by the time limit specified in paragraph (a) of that subsection, and

(b) before the expiry of that time limit, the Lands Tribunal has notified the parties to the appeal—

(i) that the Tribunal is unable to issue a written statement by that time limit, and

(ii) of the date by which the Tribunal will issue such a written statement.]

(8) The validity of anything done under this Part of this Act is not affected by any failure of the Lands Tribunal [F139 —

(a) to comply with the time limit specified in paragraph (a) of subsection (7) above, or

(b) to issue a written statement by the date referred to in paragraph (b) of that subsection.]

[F140 (8A) Where the owner of the land or the community body appeals under this section, the owner or, as the case may be, the community body must, within 7 days of the date on which the appeal is made, notify Ministers in writing of—

(a) the making of the appeal, and

(b) the date of the making of the appeal.

(8B) The Lands Tribunal must send a copy of the written statement of reasons issued under subsection (7) to Ministers.

(8C) Failure to comply with subsection (8A) or (8B) has no effect on—

(a) the community body's right to buy the land, or

(b) the validity of the appeal.]

(9) Ministers are not competent parties to any appeal under this section by reason only that they appointed the valuer whose valuation is the subject of the appeal.

(10) Ministers' powers under the Lands Tribunal Act 1949 (c. 42) to make rules as respects that Tribunal extend to such rules as may be necessary or expedient to give full effect to this section.

Textual Amendments

F135 S. 62(5) (6) repealed (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6) , s. 142(1) , Sch. 5 ; S.S.I. 2015/399 , art. 2 , Sch. (with art. 3 )

F136 Words in s. 62(7) repealed (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6) , s. 142(1) , Sch. 5 ; S.S.I. 2015/399 , art. 2 , Sch. (with art. 3 )

F137 S. 62(7)(a) (b) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6) , ss. 59(2) , 142(1) ; S.S.I. 2015/399 , art. 2 , Sch. (with art. 3 )

F138 S. 62(7A) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6) , ss. 59(3) , 142(1) ; S.S.I. 2015/399 , art. 2 , Sch. (with art. 3 )

F139 S. 62(8)(a) (b) substituted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6) , ss. 59(4) , 142(1) ; S.S.I. 2015/399 , art. 2 , Sch. (with art. 3 )

F140 S. 62(8A)-(8C) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6) , ss. 59(5) , 142(1) ; S.S.I. 2015/399 , art. 2 , Sch. (with art. 3 )

63 Compensation S

(1) Any person (other than a community body) who has incurred loss or expense—

(a) in complying with the procedural requirements of this Part of this Act;

(b) as a result of failure by a community body to comply with an order of the Lands Tribunal under section 57 above;

(c) attributable to a prohibition imposed under subsection (5)(e) of section 37 above; or

(d) as a result of the operation of paragraph (a) or (b) of section 56(3) above,

is entitled to compensation from Ministers of such amount as they may determine.

(2) The reference in subsection (1)(d) above to loss or expense incurred as a result of the operation of paragraph (a) or (b) of section 56(3) above is a reference to loss or expense incurred which would be likely not to have been incurred in a sale of the land to a person who, not being a community body, would not have had the benefit of the provision of those paragraphs.

(3) Where the community body and the owner of the land agree, under paragraph (c) of section 56(3) above, that the date of entry and payment of price shall be on a date after the last date on which that date could, by the operation of paragraphs (a) or (b) of that section, otherwise have been, no compensation shall be payable for any loss or expense attributable to any period occurring after that last date.

(4) A person who has incurred loss or expense as a result of the suspension under this Act of a right of pre emption, redemption or reversion enjoyed by that person is entitled to compensation.

(5) The procedure for recovering losses and expenses under this section shall be as prescribed.

64 Compensation appeals S

(1) An appeal may be made to the Lands Tribunal against the decision of Ministers on compensation under section 63 above.

(2) The Lands Tribunal may, on such an appeal, substitute its decision for that of Ministers.

(3) Such an appeal shall be lodged within 21 days of the decision appealed against.

Chapter 7 S General and miscellaneous provisions

65 Effect of right to buy on other rights S

(1) Any rights of pre-emption, redemption or reversion otherwise exercisable over land in which a community interest has been registered are—

(a) suspended as from the date when the community body sends the confirmation sought by Ministers under section 49(2)(a) above of its intention to buy the land; and

(b) revived—

(i) when the transfer under this Part of this Act of the land to the community body is completed; or

(ii) if such a transfer is not completed because the community body does not (by virtue of declining, under section 54 above, to buy the land or for any other reason) proceed to buy the land.

(2) Any rights which a person has in land over which a community interest has been registered, being rights conferred on the person under—

(a) Part 3 of this Act;

(b) section 12 of the Crofters (Scotland) Act 1993 (c. 44);

(c) any order under that Act of the Land Court in favour of the crofter;

F141 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

are suspended as provided in paragraph (a) of subsection (1) above but revived in the circumstances set out in paragraph (b) of that subsection.

(3) Nothing in this Part of this Act—

(a) affects the operation of an inhibition on the sale of the land;

(b) prevents an action of adjudication from proceeding; or

(c) affects the commencement, execution or operation of any other diligence.

Textual Amendments

F141 S. 65(2)(d) repealed (1.8.2016) by Housing (Scotland) Act 2014 (asp 14), s. 104(3), sch. 2 para. 14(3); S.S.I. 2014/264, art. 2, sch. (with art. 4)

66 Amendment of Land Registration (Scotland) Act 1979 S

After subsection (3) of section 4 of the Land Registration (Scotland) Act 1979 (c. 33) (applications for registration) there shall be added—

“(4) Where an application is not accepted by the Keeper on the ground that he has not been provided with sufficient evidence to confirm that it does not relate to a transfer which is prohibited by section 40(1) of the Land Reform (Scotland) Act 2003 (asp 2), or by virtue of section 37(5)(e) of that Act, the Keeper shall, subject to subsection (5) below, provide the Scottish Ministers with a copy of the application and notify them of the reason for which the application has been rejected.

(5) Subsection (4) above does not apply where the application has been rejected by reason only of the application not being accompanied by a declaration required under section 43(2) of that Act of 2003.”.

67 Construction of references to land in which community interest registered S

(1) Any reference in this Part of this Act (other than a reference in subsection (2) below) to land in which a community interest has been registered includes a reference to part of such land.

(2) Subsection (1) above shall not operate so as to enable a right to buy land to be exercised by a community body in relation to part only of the land in respect of which the right has arisen.

(3) Any reference in this Part of this Act to a creditor in a standard security with a right to sell land is a reference to a creditor who has such a right under—

(a) section 20(2) or 23(2) of the Conveyancing and Feudal Reform (Scotland) Act 1970 (c. 35); or

(b) a warrant granted under section 24(1) of that Act.

[F142 67A Calculation of time periods S

(1) In calculating for the purposes of this Part any period of time within which an act requires to be or may be done, no account is to be taken of any public or local holidays in the place where the act is to be done.

(2) Subsection (1) does not apply to a period of time specified in—

(a) section 56(3)(a) or (b),

(b) section 60(3), or

(c) Chapter 6 of this Part.]

Textual Amendments

F142 S. 67A inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 60, 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

[F143 67B Duty to provide information about community right to buy S

(1) Ministers may, for the purpose of monitoring or evaluating any impact that the right to buy land conferred by this Part has had or may have, request a person mentioned in subsection (2) to provide them with the information mentioned in subsection (3).

(2) The persons are—

(a) a community body,

(b) the owner or former owner of land in respect of which an application to register a community interest under section 37 was made.

(3) The information is such information as Ministers may reasonably require for the purpose mentioned in subsection (1) relating to the effects that the operation of the provisions of this Part have had, or may be expected to have, on such matters as may be specified in the request.

(4) A person to whom a request under subsection (1) is made must, to the extent that the person is able to do so, provide Ministers with the information requested.”. Modifications of Part 3 of Land Reform (Scotland) Act 2003]

Textual Amendments

F143 S. 67B inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 61, 142(1); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

Part 3 S The crofting community right to buy

Chapter 1 S General extent of crofting community right to buy

68 Land which may be bought: eligible croft land S

(1) The land which may be bought under this Part of this Act is eligible croft land.

[F144 (1A) But subsection (1) above is subject to section 69A below.]

(2) In this Part of this Act, “eligible croft land” means—

(a) land within the meaning of “croft” given by section 3 (meaning of “croft” and “crofter”) of the Crofters (Scotland) Act 1993 (c. 44) (“the 1993 Act”) together with any land or right which is deemed by subsections (4) or (5) of that section to be a croft or part thereof (including arable machair and scattalds);

(b) any land in which a tenant of a croft, whether alone or in common with others, has a right of pasture or grazing;

(c) any land—

(i) comprising any part of a common grazing held by a tenant of a croft; or

(ii) held runrig by a tenant of a croft,

which has not been apportioned for the exclusive use of a tenant of a croft under section 52 of the 1993 Act; and

(d) any land which consists of salmon fishings in inland waters within or contiguous to, or mineral rights (other than rights to oil, coal, gas, gold or silver) in, land referred to in paragraphs (a) to (c) above (including any such fishings or rights which are owned separately from that land).

(3) Eligible croft land does not, however, include any croft occupied or worked by its owner or a member of its owner’s family.

(4) In subsection (3) above, the reference to a croft being occupied includes—

(a) a reference to its being occupied otherwise than permanently; and

(b) a reference to its being occupied by way of the occupation by its owner of any dwellinghouse on or pertaining to it.

(5) In this Part of this Act, “inland waters” has the same meaning as in [F145 section 69(1) of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003].

Textual Amendments

F144 S. 68(1A) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(2) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F145 Words in s. 68(5) substituted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), s. 142(1), Sch. 4 para. 8(5); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

69 Land which may be bought: salmon fishings and mineral rights S

(1) A crofting community body may apply, under section 73 below, to buy eligible croft land which consists of salmon fishings or mineral rights only—

(a) where—

(i) it is simultaneously applying; or

(ii) it has made an application in respect of which Ministers have not made a decision,

to buy the croft land to which such fishings or rights relate; or

(b) during the relevant period.

(2) Such an application may be made during the relevant period only where the crofting community body—

(a) has provided confirmation under section 85(1) below of its intention to proceed to buy the croft land to which the fishings or rights relate; or

(b) has bought and retained that related croft land in accordance with the provisions of this Part of this Act.

(3) In subsection (1) above, “relevant period” means the period beginning with the date on which Ministers consented to the application under section 73 below to buy the croft land to which the fishings or rights relate and ending—

(a) where the crofting community body does not proceed to exercise its right to buy that related croft land, on the date on which it withdraws, under section 85(2) below, its confirmation to so proceed; or

(b) where the crofting community body has bought and retained that related croft land—

(i) in relation to salmon fishings, one year; or

(ii) in relation to mineral rights, five years,

after the date on which the crofting community body bought that land.

[F146 69A Land which may be bought: interest of tenant over land S

(1) This section applies where a tenancy which is neither—

(a) a croft tenancy; nor

(b) the tenancy of a dwelling-house,

has been created over land at least part of which is eligible croft land (the land over which the tenancy has been created being in this section referred to as the “tenanted land”).

(2) Where this section applies, a crofting community body may apply, under section 73 below, to buy the interest mentioned in subsection (3) below—

(a) where—

(i) it is simultaneously applying; or

(ii) it has made an application in respect of which Ministers have not made a decision,

to buy eligible croft land any part of which is part of the tenanted land (any such eligible croft land being in this section referred to as the “principal subjects”); or

(b) if the conditions set out in subsection (4) below are met, during the relevant period.

(3) The interest is the interest of the tenant over so much of the tenanted land as is comprised within the principal subjects.

(4) The conditions are that the crofting community body—

(a) has provided confirmation under section 85(1) below of its intention to proceed to buy the principal subjects; or

(b) has bought and retained those subjects in accordance with the provisions of this Part of this Act.

(5) In subsection (2) above, “relevant period” means the period beginning with the date on which Ministers consented to the application under section 73 to buy the principal subjects and ending—

(a) where the crofting community body does not proceed to exercise its right to buy those subjects, on the date on which it withdraws, under section 85(2) below, its confirmation so to proceed; or

(b) where the crofting community body has bought and retained those subjects, five years after the date on which the crofting community body bought those subjects.]

Textual Amendments

F146 S. 69A inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 31(2), 39, 43; S.S.I. 2007/269, art. 2, Sch.

70 Land which may be bought in addition to eligible croft land S

(1) Where eligible croft land is being bought under this Part of this Act eligible additional land may also be so bought.

(2) Where eligible croft land is being, or has been, bought under this Part of this Act eligible sporting interests may, subject to subsection (3) below, also be so bought.

(3) Where the crofting community body have bought, and retained ownership of, eligible croft land in accordance with the provisions of this Part of this Act it may, within the period beginning with the date on which Ministers consented to the application under section 73 below to buy the eligible croft land and ending 5 years after the date on which the crofting community body bought that land, apply under that section to buy eligible sporting interests which have not previously been leased by the crofting community body under section 83 below.

(4) In this Part of this Act—

• “eligible additional land” means, in relation to a crofting community body, land—

  (a)

  any part of which is contiguous to the eligible croft land which is being bought by the body; and

  (b)

  owned by the owner of such eligible croft land,

  other than land which consists of salmon fishings in inland waters within or contiguous to, or mineral rights in, such land; and

• “eligible sporting interests” means the rights of a person other than the owner of eligible croft land under any lease or other contract to shoot or fish on the land.

(5) The definition of “eligible sporting interests” in subsection (4) above does not include any right under a lease of salmon fishings in inland waters within or contiguous to eligible croft land.

71 Crofting community bodies S

[F147 (A1) A crofting community body is, subject to subsection (4)—

(a) a body falling within subsection (1), (1A) or (1B), or

(b) a body of such other description as may be prescribed which complies with prescribed requirements.]

(1) A [F148 body falls within this subsection if it is] a company limited by guarantee, the [F149 articles of association] of which include the following—

(a) a definition of the crofting community to which the company relates;

(b) provision enabling the company to exercise the right to buy land [F150 , the interest mentioned in section 69A(3)] and sporting interests under this Part of this Act;

(c) provision that the company must have not fewer than [F151 10] members;

[F152 (d) provision that at least three quarters of the members of the company are members of the crofting community,]

(e) provision whereby the members of the company who consist of members of the crofting community have control of the company;

(f) provision ensuring proper arrangements for the financial management of the company F153 ... ;

(g) provision that any surplus funds or assets of the company are to be applied for the benefit of the crofting community; and

(h) provision that on the winding up of the company and after satisfaction of its liabilities, its property (including any land [F154 , interest in land] and sporting interests acquired by it under this Part of this Act) passes—

(i) to such other crofting community body [F155 , community body or Part 3A community body (as defined in section 97D)] as may be approved by Ministers; or

(ii) if no other such body is so approved, to Ministers or to such charity as Ministers may direct.

[F156 (1A) A body falls within this subsection if it is a Scottish charitable incorporated organisation (a “SCIO”) the constitution of which includes the following—

(a) a definition of the crofting community to which the SCIO relates,

(b) provision enabling the SCIO to exercise the right to buy land, the interest mentioned in section 69A(3) and sporting interests under this Part,

(c) provision that the SCIO must have not fewer than 10 members,

(d) provision that at least three quarters of the members of the SCIO are members of the crofting community,

(e) provision under which the members of the SCIO who consist of members of the crofting community have control of the SCIO,

(f) provision ensuring proper arrangements for the financial management of the SCIO,

(g) provision that, on the request of any person for a copy of the minutes of a meeting of the SCIO, the SCIO must, if the request is reasonable, give the person within 28 days of the request a copy of those minutes,

(h) provision that, where a request of the type mentioned in paragraph (g) is made, the SCIO—

(i) may withhold information contained in the minutes, and

(ii) if it does so, must inform the person requesting a copy of the minutes of its reasons for doing so, and

(i) provision that any surplus funds or assets of the SCIO are to be applied for the benefit of the crofting community.

(1B) A body falls within this subsection if it is a community benefit society the registered rules of which include the following—

(a) a definition of the crofting community to which the society relates,

(b) provision enabling the society to exercise the right to buy land, the interest mentioned in section 69A(3) and sporting interests under this Part,

(c) provision that the society must have not fewer than 10 members,

(d) provision that at least three quarters of the members of the society are members of the crofting community,

(e) provision under which the members of the society who consist of members of the crofting community have control of the society,

(f) provision ensuring proper arrangements for the financial management of the society,

(g) provision that, on the request of any person for a copy of the minutes of a meeting of the society, the society must, if the request is reasonable, give the person within 28 days of the request a copy of those minutes,

(h) provision that, where a request of the type mentioned in paragraph (g) is made, the society—

(i) may withhold information contained in the minutes, and

(ii) if it does so, must inform the person requesting a copy of the minutes of its reasons for doing so, and

(i) provision that any surplus funds or assets of the society are to be applied for the benefit of the crofting community.]

(2) Ministers may, if they think it in the public interest to do so, disapply the requirement specified in subsection (1)(c) [F157 , (1A)(c) or (1B)(c)] above in relation to any body they may specify.

(3) In subsection (1) above, “company limited by guarantee” has [F158 the meaning given by section 3(3) of the Companies Act 2006].

(4) A body is not a crofting community body unless Ministers have given it written confirmation that they are satisfied that the main purpose of the body is consistent with furthering the achievement of sustainable development.

[F159 (4A) Ministers may by regulations from time to time amend subsections (1), (1A) and (1B).

(4B) If provision is made under subsection (A1)(b), Ministers may by regulations make such amendment of section 72(1) in consequence of that provision as they consider necessary or expedient.]

(5) A crofting community shall be defined for the purposes of subsection (1)(a) [F160 , (1A)(a) or (1B)(a)] above—

(a) as those persons who—

(i) are resident in the crofting township which is situated in or otherwise associated with the croft land which the crofting community body has a right to buy under this Part of this Act [F161 and who are entitled to vote in local government elections in the polling district or districts in which that township is situated] ; F162 ...

[F163 (ii) are tenants of crofts in the crofting township whose names are entered in the Crofting Register, or the Register of Crofts, as the tenants of such crofts;

(iii) are owner-occupier crofters of owner-occupied crofts in the crofting township whose names are entered in the Crofting Register as the owner-occupier crofters of such crofts; or

(iv) are such other persons, or are persons falling within a class of such other persons, as may be prescribed;]

and who are entitled to vote in local government elections in the polling district or districts in which that township or, as the case may be, that other place is situated; or

(b) if, in Ministers' opinion, it is inappropriate so to define the crofting community, in such other way as Ministers approve for the purposes of this paragraph.

(6) In subsection [F164 (5)(a)] above[F165 —]

“crofting township” means—

(a) any two or more crofts which share the right to use a common grazing together with that common grazing and any houses pertaining to or contiguous to those crofts or that common grazing; or

(b) any combination of two or more crofting townships within that meaning.

[F166 “owner-occupied croft” has the meaning given by section 19B(5) of the Crofters (Scotland) Act 1993,

“owner-occupier crofter” is to be construed in accordance with section 19B of that Act.]

(7) The [F167 articles] of a company which is a crofting community body may, notwithstanding the generality of paragraph (h) of subsection (1) above, provide that its property may, in the circumstances mentioned in that paragraph, pass to another person only if that person is a charity.

(8) In this section[F168 —]

“charity” means a body [F169 entered in the Scottish Charity Register].

[F170 “community benefit society” means a registered society (within the meaning of section 1 of the Co-operative and Community Benefit Societies Act 2014) registered as a community benefit society under section 2 of that Act,

“registered rules” has the meaning given by section 149 of that Act (as that meaning applies in relation to community benefit societies),

“Scottish charitable incorporated organisation” has the meaning given by section 49 of the Charities and Trustee Investment (Scotland) Act 2005.]

Textual Amendments

F147 S. 71(A1) inserted (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 62(2), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

F148 Words in s. 71(1) substituted (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 62(3)(a), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

F149 Words in s. 71(1) substituted (1.10.2009) by The Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941), art. 2(1), Sch. 1 para. 218(3)(a) (with art. 10)

F150 Words in s. 71(1)(b) inserted (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 62(3)(b), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

F151 Word in s. 71(1)(c) substituted (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 62(3)(c), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

F152 S. 71(1)(d) substituted (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 62(3)(d), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

F153 Words in s. 71(1)(f) repealed (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 62(3)(e), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

F154 Words in s. 71(1)(h) inserted (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 62(3)(f)(i), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

F155 Words in s. 71(1)(h)(i) substituted (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 62(3)(f)(ii), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

F156 S. 71(1A)(1B) inserted (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 62(4), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

F157 Words in s. 71(2) inserted (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 62(5), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

F158 Words in s. 71(3) substituted (1.10.2009) by The Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941), art. 2(1), Sch. 1 para. 218(3)(b) (with art. 10)

F159 S. 71(4A)(4B) inserted (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 62(6), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

F160 Words in s. 71(5) inserted (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 62(7)(a), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

F161 Words in s. 71(5)(a)(i) inserted (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 62(7)(b)(i), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

F162 Word in s. 71(5)(a) repealed (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 62(7)(b)(ii), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

F163 S. 71(5)(a)(ii)-(iv) substituted for words (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 62(7)(b)(iii), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

F164 Word in s. 71(6) substituted (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 62(8)(a), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

F165 S. 71(6) hyphen inserted (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 62(8)(b), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

F166 Words in s. 71(6) inserted (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 62(8)(c), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

F167 Words in s. 71(7) substituted (1.10.2009) by The Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941), art. 2(1), Sch. 1 para. 218(3)(c) (with art. 10)

F168 S. 71(8) hyphen inserted (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 62(9)(a), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

F169 Words in s. 71(8) substituted (1.4.2006) by Charities and Trustee Investment (Scotland) Act 2005 (asp 10), ss. 104, 107(2), Sch. 4 para. 13(b); S.S.I. 2006/189, art. 2, Sch.

F170 Words in s. 71(8) inserted (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 62(9)(b), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

72 Provisions supplementary to section 71 S

[F171 (1) A crofting community body—

(a) which has bought land under this Part, any part of which remains in its ownership, and

(b) which modifies its memorandum, articles of association, constitution or registered rules (as defined in section 71(8)),

must, as soon as possible after such modification, notify the Scottish Ministers in writing of the modification.]

(2) If Ministers are satisfied that a body which has so bought land would, had it not so bought that land, no longer be entitled to do so, they may acquire the land compulsorily.

[F172 (3) Subsection (2) does not apply if the crofting community body would no longer be entitled to buy the land because the land is not eligible croft land.

(4) Where the power conferred by subsection (2) is (or is to be) exercised in relation to land, Ministers may make an order relating to, or to matters connected with, the acquisition of the land.

(5) An order under subsection (4) may—

(a) apply, modify or exclude any enactment which relates to any matter as to which an order could be made under that subsection,

(b) make such modifications of enactments as appear to Ministers to be necessary or expedient in consequence of any provision of the order or otherwise in connection with the order.]

Textual Amendments

F171 S. 72(1) substituted (27.6.2018) by Land Reform (Scotland) Act 2016 (asp 18), s. 130(1), sch. 1 para. 1(4) (with s. 128); S.S.I. 2018/138, art. 3, sch. 2

F172 S. 72(3)-(5) inserted (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 63(b), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

Chapter 2 S Exercise of right to buy

73 Application by crofting community body for consent to buy croft land etc. S

(1) The right to buy under this Part of this Act may be exercised only by a crofting community body.

(2) That right may be so exercised only with the consent of Ministers given on the written application of the crofting community body.

(3) That right may be exercised in relation to more than one holding of land or sporting interests [F173 or more than one tenancy] but in order so to exercise the right an application must be made in respect of each such holding [F174 or tenancy] and applications so made may be differently disposed of.

(4) In subsection (3) above, a “holding” of land or of a sporting interest is land in the ownership of one person or in common or joint ownership or a sporting interest to which one person is entitled or to which there is a common or joint entitlement [F175 and a “tenancy” is one where one person is entitled to the tenant's interest or there is a common or joint entitlement to that interest].

(5) Such an application shall be made in the prescribed form [F176 , shall specify the persons mentioned in subsection (5ZA)] and shall include or be accompanied by information of the prescribed kind including information (provided, where appropriate, by or by reference to maps or drawings) about—

(a) the location and boundaries of the land [F177 , the subjects of the lease or the] sporting interests in respect of which the right to buy is sought to be exercised (the “subjects of the application”);

(b) all—

(i) rights and interests in the subjects of the application [F178 known to the crofting community body];

F179 (ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) whether the crofting community body proposes to exclude from the eligible croft land which it proposes to buy—

(i) salmon fishings in inland waters within or contiguous to; or

(ii) mineral rights in,

the land;

(d) whether the crofting community body proposes a leaseback of sporting interests under section 83 below;

(e) the proposed use, development and management of the subjects of the application;

F180 (f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(g) the extent to which the matters referred to in paragraph (e) above would consist of or support the sustainable use or development of the subjects of the application, including any land or sporting interests previously acquired by the crofting community body.

[F181 (5ZA) The persons are—

(a) the owner of the land,

(b) any creditor in a standard security over the land or any part of it with a right to sell the land or any part of it,

(c) the tenant of any tenancy of land over which the tenant has an interest,

(d) the person entitled to any sporting interests,

in respect of which the right to buy is sought to be exercised.]

[F182 (5A) Paragraphs (b) to (d) and (f) of subsection (5) above do not apply as respects an application made by virtue of section 69A(2) of this Act.]

[F183 (5AA) Ministers may by regulations––

(a) modify any of paragraphs (a) to (g) of subsection (5),

(b) provide for any of those paragraphs not to apply in such cases or circumstances as may be specified in the regulations.]

(6) A crofting community body applying under this section shall, at the same time as it applies—

(a) send a copy of its application to the owner of the subjects of the application;

[F184 (aa) in the case of an application made by virtue of section 69A(2) above, send a copy of its application to the tenant;] and

(b) where there is a standard security over an interest in any subjects to which the application relates, send a copy of its application and the accompanying information to the creditor who holds the standard security and invite the creditor—

(i) to notify the crofting community body and Ministers, within 60 days of receipt of the invitation, if any of the circumstances set out in subsection (7) below has arisen (or arises within 60 days of receipt of the invitation); and

(ii) if such notice is given, to provide Ministers, within that time, with the creditor’s views in writing on the application.

(7) Those circumstances are that—

(a) a calling-up notice has been served by the creditor under section 19 of the Conveyancing and Feudal Reform (Scotland) Act 1970 (c. 35) in relation to the subjects in which the crofting community body is seeking to exercise its right to buy or any part of those subjects and that notice has not been complied with;

(b) a notice of default served by the creditor under section 21 of that Act in relation to those subjects or any part of those subjects has not been complied with and the person on whom the notice was served has not, within the period specified in section 22 of that Act, objected to the notice by way of application to the court;

(c) where that person has so objected, the court has upheld or varied the notice of default; and

(d) the court has granted the creditor a warrant under section 24 of that Act in relation to those subjects or any part of those subjects.

(8) On receipt of an application, Ministers shall—

(a) invite—

(i) the owner of or, as the case may be, person entitled to the subjects of the application;

[F185 (ia) in the case of an application made by virtue of section 69A(2) above, the tenant;]

(ii) the owners of all land contiguous to land which consists of the subjects of the application;

(iii) the Crofters Commission; and

(iv) any other person whom Ministers consider to have an interest in the application,

to send them, so as to be received not later than 60 days after the sending of the invitation, views in writing on the application; and

(b) send a copy of the invitation to the crofting community body.

(9) If the subjects of the application include land other than eligible croft land, the invitation given under subsection (8)(a)(i) above shall seek the consent of the owner of that eligible additional land to its sale under this Part of this Act.

(10) Ministers shall, as soon as may be after receiving an application, give public notice of it and of the date by which, under subsection (8)(a) above, views are to be received by them and, in that notice, invite persons to send to Ministers, so as to be received by them not later than 60 days after the publication of the notice, views in writing on the application.

(11) That public notice shall be given by advertisement [F186 in such manner as may be prescribed].

(12) Ministers shall—

(a) send copies of any views they receive under this section to the crofting community body; and

(b) invite it to send them, so as to be received by them not later than 60 days after the sending of that invitation, its responses to these views.

(13) Ministers shall, when considering whether to consent to an application under this section, have regard to all views on it and responses thereto which they have received in answer to invitations under this section.

(14) Ministers shall decline to consider an application which—

(a) does not comply with the requirements of or imposed under this section;

(b) is otherwise incomplete;

(c) discloses that the subjects of the application, or any part of them, are not within the respective definitions in sections 68 and 70 above; or

(d) otherwise indicates that it is one which Ministers would be bound to reject;

and Ministers shall not be required to comply with subsections (8) to (13) above in relation to such an application.

(15) Ministers shall not reach a decision on an application before—

(a) the date which is 60 days after the last date on which the crofting community body may provide Ministers with a response to the invitation given under subsection (12) above; or

(b) if by that date the Land Court has not advised Ministers of its finding on any question referred to it under section 79(2) or 81(1) below in relation to the application, the date on which the Land Court provide Ministers with that finding.

Textual Amendments

F173 Words in s. 73(3) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(3)(a)(i) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F174 Words in s. 73(3) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(3)(a)(ii) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F175 Words in s. 73(4) added (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(3)(b) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F176 Words in s. 73(5) inserted (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 64(2)(a), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

F177 Words in s. 73(5)(a) substituted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(3)(c) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F178 Words in s. 73(5)(b)(i) inserted (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 64(2)(b)(i), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

F179 Words in s. 73(5)(b) repealed (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 64(2)(b)(ii), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

F180 S. 73(5)(f) repealed (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 64(2)(c), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

F181 S. 73(5ZA) inserted (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 64(3), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

F182 S. 73(5A) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(3)(d) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F183 S. 73(5AA) inserted (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 64(4), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

F184 S. 73(6)(aa) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(3)(e) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F185 S. 73(8)(a)(ia) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(3)(f) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F186 Words in s. 73(11) substituted for s. 73(11)(a)(b) (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 64(5), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

74 Criteria for consent by Ministers S

(1) Ministers shall not consent to an application under section 73 above unless they are satisfied—

(a) that the croft land to which the application relates is eligible croft land;

(b) that any additional land to which the application relates is eligible additional land;

(c) that any eligible additional land is to be bought only at the request or with the consent of its owner;

(d) that any salmon fishings to which the application relates are eligible croft land;

(e) that any mineral rights to which the application relates are eligible croft land;

(f) that any sporting interests to which the application relates are eligible sporting interests;

(g) that the subjects of the application have not previously been bought under this Part of this Act and disposed of by the crofting community body;

(h) that the owner is not—

(i) prevented from selling the subjects of the application; or

(ii) subject to any enforceable personal obligation (other than an obligation arising from any right mentioned in section 84(1) below), or order of the Land Court, to sell them otherwise than to the crofting community body;

(i) that the crofting community body complies with the provisions of section 71 above;

(j) that the exercise by the crofting community body of the right to buy under this Part of this Act is compatible with furthering the achievement of sustainable development;

(k) that, where the subjects of the application are salmon fishings, mineral rights or sporting interests, the crofting community body has or is acquiring sufficient croft land to enable those subjects to be exploited so as to support the development of the crofting community defined in relation to that body in pursuance of section 71 above;

(l) that the crofting community so defined are, in relation to the subjects of the application, an appropriate crofting community;

(m) that the crofting community so defined have approved the proposal to exercise the right to buy; F187 ...

(n) that it is in the public interest that the right to buy be exercised.

[F188 (o) that the owner of the land to which the application relates is accurately identified in the application,

(p) that any creditor in a standard security over the land to which the application relates or any part of it with a right to sell the land or any part of it is accurately identified in the application,

(q) in the case of an application made by virtue of section 69A(2), that the tenant whose interest is the subject of the application is accurately identified in the application, and

(r) that the person entitled to any sporting interests to which the application relates is accurately identified in the application.]

[F189 (1A) But subsection (1)(a) above is subject to section 69A above.]

(2) For the purposes of subsection (1)(n) above, the public interest includes the interest of any sector (however small) of the public which, in the opinion of Ministers, would be affected by the exercise of the right to buy, and such a sector includes a community as defined for the purposes of section 34(1)(a) above and a crofting community as defined for the purposes of section 71(1)(a) above.

Textual Amendments

F187 Word in s. 74(1) repealed (24.2.2021) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 65(a), 142(1); S.S.I. 2020/448, art. 2 (with art. 3)

F188 S. 74(1)(o)-(r) inserted (24.2.2021) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 65(b), 142(1); S.S.I. 2020/448, art. 2 (with art. 3)

F189 S. 74(1A) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43(3)(4), Sch. 1 para. 5(4) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

75 Ballot to indicate approval for purposes of section 74(1)(m) S

(1) The crofting community, defined in pursuance of section 71 above in relation to the crofting community body which has applied to buy land [F190 , the interest of a tenant over land] or sporting interests, are to be taken for the purposes of section 74(1)(m) above as having approved a proposal to buy if—

(a) a ballot of the members of the crofting community so defined has, during the period of six months which immediately preceded the date on which the application was made, been conducted by the crofting community body on the question whether the crofting community body should buy the land [F191 , tenant's interest] or sporting interests; and

(b) the majority of—

(i) those voting; and

(ii) the members of the crofting community so defined who voted and who are tenants of crofts within the land which the crofting community body has applied to buy or, as the case may be, within land over which the sporting interests which the crofting community body has applied to buy may be exercised [F192 or within the land over which the tenant's interest subsists],

have voted in favour of the proposition that the crofting community body exercises its right to buy .

(2) The ballot shall be conducted as prescribed; and the provisions prescribed shall include provision for the ascertainment and publication of the number of persons eligible to vote in the ballot, the number who did vote and the numbers of valid votes respectively cast for and against the proposition.

(3) If the ballot is not so conducted, the crofting community body’s right to buy the land [F193 , tenant's interest] or sporting interests which are the subject of the body’s application is, so far as proceeding on that application, extinguished.

(4) The crofting community body which conducts a ballot shall, within 21 days of the ballot (or, if its application under section 73 above is given before the expiry of that period, together with the application) and in the prescribed form of return, notify—

(a) the result;

(b) the number of persons eligible to vote;

(c) the number of those persons who are tenants of crofts within the land which the body proposes to buy [F194 or as the case may be within the land over which the tenant's interest subsists];

(d) the number of persons who voted and the number of those persons who are such tenants; and

(e) the number of persons who voted in favour of the proposal to buy and the number of those persons who are such tenants,

to Ministers.

[F195 (4A) Ministers may require the crofting community body—

(a) to provide such information relating to the ballot as they think fit, and

(b) to provide such information relating to any consultation with those eligible to vote in the ballot undertaken during the period in which the ballot was carried out as Ministers think fit.

(4B) Subject to subsection (6), the expense of conducting a ballot under this section is to be met by the crofting community body.]

(5) Any person who, whether alone or in common with others—

(a) has a right of pasture or grazing, or holds a common grazing, within the land which the crofting community body has applied to buy or, as the case may be, within land over which the sporting interests which the crofting community body has applied to buy may be exercised [F196 or within the land over which the tenant's interest subsists]; or

(b) holds any part of that land runrig,

is, for the purposes of this section, to be regarded as a tenant of a croft within the land which the body proposes to buy [F197 or within the land over which the tenant's interest subsists].

[F198 (6) Ministers may by regulations make provision for or in connection with enabling a crofting community body, in such circumstances as may be specified in the regulations, to apply to them to seek reimbursement of the expense of conducting a ballot under this section.

(7) Regulations under subsection (6) may in particular make provision in relation to—

(a) the circumstances in which a crofting community body may make an application by virtue of that subsection,

(b) the method to be applied by Ministers in calculating the expense of conducting the ballot,

(c) the criteria to be applied by Ministers in deciding whether to make a reimbursement to the applicant,

(d) the procedure to be followed in connection with the making of—

(i) an application to Ministers,

(ii) an appeal against a decision made by Ministers in respect of an application,

(e) persons who may consider such an appeal,

(f) the powers of such persons.]

Textual Amendments

F190 Words in s. 75(1) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(5)(a)(i) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F191 Words in s. 75(1)(a) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(5)(a)(ii) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F192 Words in s. 75(1)(b)(ii) added (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(5)(a)(iii) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F193 Words in s. 75(3) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(5)(b) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F194 Words in s. 75(4)(c) added (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(5)(c) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F195 S. 75(4A)(4B) inserted (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 66(2), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

F196 Words in s. 75(5)(a) added (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(5)(d)(i) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F197 Words in s. 75(5) added (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(5)(d)(ii) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F198 S. 75(6)(7) inserted (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 66(3), 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

76 Right to buy same croft land exercisable by only one crofting community body S

(1) Only one crofting community body may exercise the right under this Part of this Act to buy the same land [F199 , tenant's interest] or sporting interests.

(2) Where two or more such bodies have applied to buy the same land or sporting interests, it is for Ministers to decide which is to proceed.

(3) Ministers may not make such a decision unless they have had regard to all views on each of the applications, and responses thereto, which they have received in answer to invitations under section 73 above.

(4) On Ministers so deciding—

(a) the other body’s right to buy the land or [F200 tenant's interest which is, or the] sporting interests which are the subject of the body’s application is, so far as proceeding on that application, extinguished; and

(b) they shall notify—

[F201 (i) each person invited, under section 73(8)(a), to send them views on the application,]

(ii) the bodies,

of that fact.

Textual Amendments

F199 Words in s. 76(1) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(6)(a) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F200 Words in s. 76(4)(a) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(6)(b)(i) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F201 S. 76(4)(b)(i) substituted (24.2.2021) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 67, 142(1); S.S.I. 2020/448, art. 2 (with art. 3)

77 Reference to Land Court of purchase of eligible additional land without owner’s consent S

(1) Where the owner of any eligible additional land to which an application under section 73 above relates has not requested, or consented to, the sale of that land Ministers shall refer to the Land Court the question of whether the eligible additional land may be bought by the crofting community body without the consent of its owner.

(2) In considering any question referred to it under subsection (1) above, the Land Court may have regard to any representations made to it by—

(a) the applicant crofting community body;

(b) the owner of the land which is the subject of the application; or

(c) any other person who, in the opinion of the Land Court, appears to have an interest.

(3) On a reference under subsection (1) above the Land Court may determine that eligible additional land may be purchased by the crofting community body without the consent of its owner (and such determination shall have the same effect as if Ministers had been satisfied as to the matter referred to in section 74(1)(c) above) but only if the court is satisfied—

(a) that the purchase of the eligible additional land by the crofting community body is essential to the development of the crofting community;

(b) that such development is compatible with furthering the achievement of sustainable development;

(c) that the purpose to which that land would be put cannot reasonably be achieved by means within the powers of the Court other than by its purchase under this Part of this Act by the crofting community body;

(d) that where that land forms part of an area of land all of which is in the same ownership, the purchase of the land will not seriously jeopardise the continued use and management of the remaining land; and

(e) that that land does not exceed, in area, whichever is the greater of—

(i) 10 hectares; or

(ii) 5 per cent of the combined area of the land and any croft land being bought or which had previously been bought under this Part of this Act by the crofting community body.

(4) Where the Land Court determine, under subsection (3) above, that eligible additional land may be purchased by the crofting community body without the consent of its owner it may provide that Ministers shall, under section 80 below, make their consent to the application subject to the imposition, on transfer of the land, of such conditions upon the title to the land as the Court may specify.

(5) If the Land Court considers that the purpose to which eligible additional land or any part of it is proposed to be put can be substantially achieved by imposing conditions upon the title to that land, it may make an order—

(a) approving the purchase of the land sought to be bought but not the eligible additional land or that part of it; and

(b) providing that Ministers shall, under section 80 below, make their consent to the application subject to the imposition of such title conditions as the Court considers appropriate on the eligible additional land or, as the case may be, that part of it.

(6) An order under subsection (5) above has the same effect as Ministers being satisfied as to the matter set out in section 74(1)(c) above.

(7) The references in subsections (4) and (5) above to conditions upon the title to the land include references to real burdens and servitudes.

78 Modification of section 77(3)(a) to (e) S

(1) Ministers may, by order, modify the provisions of paragraphs (a) to (e) of subsection (3) of section 77 above.

(2) Modifications under subsection (1) above may include the addition of new paragraphs.

79 Additional land included at request of owner S

(1) Where the owner of eligible croft land or eligible additional land has, within the time limit for submitting views in pursuance of section 73 above, requested that eligible additional land or, as the case may be, further eligible additional land be included with the land to be bought under this Part of this Act, Ministers may, if they consider that it is in the public interest to do so, make it a condition of their proceeding to consider the application by the crofting community body that the body modifies its application so as to include in the land to be bought that eligible additional land as further such land.

(2) Ministers—

(a) may; and

(b) on being so required by the owner of land who has made such a request or the crofting community body in relation to whose application the condition referred to in subsection (1) above has been imposed, shall,

refer to the Land Court for its findings in fact in respect of any matter relating to the question of whether the additional land or further additional land should be included with the land to be bought.

(3) In considering any question referred to it under subsection (2) above, the Land Court may have regard to any representations made to it by—

(a) the applicant crofting community body;

(b) the owner of the land which is the subject of the application; or

(c) any other person who, in the opinion of the Land Court, appears to have an interest.

(4) On a reference under subsection (2) above, the Land Court shall report its findings in fact to Ministers.

(5) Where a referral is made to the Land Court under subsection (2) above, Ministers shall not consent to the application to which the referral relates before they have—

(a) received the Land Court’s report of its findings in fact; and

(b) taken those findings into account when considering or further considering the application.

80 Consent conditions S

Ministers may make their consent to an application under section 73 above subject to conditions.

81 Reference to Land Court of questions on applications S

(1) At any time before Ministers reach a decision on an application which has been made under section 73 above—

(a) Ministers;

(b) any person who is a member of the crofting community defined in relation to the applicant crofting community body in pursuance of section 71 above;

[F202 (ba) the owner of the land which is the subject of the application,

(bb) the person entitled to any sporting interests which are the subject of the application,]

(c) any person who has any interest in the land or sporting interests which are the subject of the application giving rise to a right which is legally enforceable by that person;

[F203 (ca) where the subject of the application is a tenant's interest [F204 —

(i) the tenant; and

(ii)] any person who has an interest in the lease, being an interest giving rise to a right which is legally enforceable by that person;]or

(d) any person who is invited, under section 73(8)(a) above, to send views to Ministers on the application,

may refer to the Land Court any question (other than a question which Ministers may, or may be required to, refer under section 77(1) or 79(2) above) relating to the application.

(2) In considering any question referred to it under subsection (1) above, the Land Court may have regard to any representations made to it by—

(a) the applicant crofting community body;

(b) the owner of the land which is, or person entitled to the sporting interests which are, the subject of the application;

[F205 (ba) the tenant whose interest is the subject of the application;] or

(c) any other person who, in the opinion of the Land Court, appears to have an interest.

(3) The Land Court—

(a) shall advise Ministers of its finding on any question so referred; and

(b) may, by order, provide that Ministers may consent to the application only if they impose, under section 80 above, such conditions as the Court may specify.

(4) If the Land Court considers any question referred to it under this section to be irrelevant to Ministers' decision on the application to which it relates, it may decide to give no further consideration to the question and find accordingly.

Textual Amendments

F202 S. 81(1)(ba)(bb) inserted (24.2.2021) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 68(a), 142(1); S.S.I. 2020/448, art. 2 (with art. 3)

F203 S. 81(1)(ca) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(7)(a) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F204 Words in s. 81(1)(ca) inserted (24.2.2021) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 68(b), 142(1); S.S.I. 2020/448, art. 2 (with art. 3)

F205 S. 81(2)(ba) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(7)(b) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

82 Notification of Ministers' decision on application S

(1) Ministers shall give written notice, in prescribed form, of their decision upon an application, and their reasons for it, to—

(a) the applicant crofting community body;

(b) the owner of the land or [F206 as the case may be the tenant whose interest is the subject of the application or the] person entitled to the sporting interests to which the application relates;

(c) every other person who was invited, under section 73(8)(a) above, to send them views on the application; and

(d) where their decision is to consent to the application, to the Keeper of the Registers of Scotland.

(2) The form of notice shall be prescribed so as to secure that the notice includes a full description of—

(a) the land [F207 , tenant's interest] or sporting interests to which the consent relates (provided, where appropriate, by or by reference to maps and drawings); and

(b) where their decision is to consent to the application, any conditions imposed under section 80 above by virtue of subsections (4) or (5) of section 77 above.

(3) The notice given under subsection (1) above shall—

(a) contain information about the consequences of the decision notified and of the rights of appeal against it given by this Part of this Act; and

(b) state the date as at which the decision is effective.

Textual Amendments

F206 Words in s. 82(1)(b) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(8)(a) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F207 Words in s. 82(2)(a) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(8)(b) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

83 Leaseback to owner of sporting interests S

(1) This section applies where—

(a) at the date of an application under section 73 above, only the owner of the land to be bought is entitled to the sporting interests on the land;

(b) the crofting community body has indicated that it proposes a leaseback of those interests under section 73(5)(d) above;

(c) the owner, within the period of 60 days referred to in subsection (8) of that section, notifies Ministers in writing that the owner wishes a lease of those interests;

(d) Ministers have consented to the application; and

(e) the crofting community body and the owner of the land have not, prior to consent being given, provided Ministers with a copy of an agreement between them on the terms and conditions of the lease of those interests.

(2) Where this section applies Ministers shall, within 7 days of consenting to the application, refer to the Land Court the question of what terms and conditions are appropriate for a lease of those sporting interests from the crofting community body to the owner.

(3) The Land Court shall, subject to subsection (4) below, determine those terms and conditions.

(4) Those terms and conditions shall include provision that—

(a) the annual rent shall be nominal;

(b) the duration of the lease shall be not less than 20 years; and

(c) the owner shall be entitled to assign the tenant’s interest under the lease,

and the terms and conditions shall not prevent the lease from being recorded or registered under the Registration of Leases (Scotland) Act 1857 (c. 26).

(5) The crofting community body shall, forthwith on completion of the transfer of the land, grant a lease accordingly to the owner of the land.

(6) If a crofting community body refuses or fails to grant a lease in accordance with such terms and conditions as have been determined, the Land Court may authorise its principal clerk to adjust, execute and deliver the lease to the like force and effect as if done by the crofting community body.

84 Effect on other rights of Ministers' decision on right to buy S

(1) Any rights of pre-emption, redemption or reversion or deriving from any option to purchase otherwise exercisable over land or sporting interests which are the subject of an application by a crofting community body under this Part of this Act are—

(a) suspended as from the date when Ministers approve the body’s application under section 73 above to buy the land or sporting interests; and

(b) revived—

(i) when the transfer under this Part of this Act of the land or sporting interests to the body is completed; or

(ii) if such a transfer is not completed because the body does not (by virtue of withdrawing, under section 85 below, its application under section 73 above or its confirmation of its intention to proceed to buy or for any other reason) proceed to buy the land or sporting interests.

(2) Any rights which a person has in land which a crofting community body is seeking to buy under this Part of this Act, being rights conferred on the person under—

(a) Part 2 of this Act;

(b) section 12 of the 1993 Act;

F208 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

are suspended as provided in paragraph (a) of subsection (1) above but revived in the circumstances set out in paragraph (b) of that subsection.

(3) Nothing in this Part of this Act—

(a) affects the operation of an inhibition on the sale of the land;

(b) prevents an action of adjudication from proceeding; or

(c) affects the commencement, execution or operation of any other diligence.

Textual Amendments

F208 S. 84(2)(c) repealed (1.8.2016) by Housing (Scotland) Act 2014 (asp 14), s. 104(3), sch. 2 para. 14(4); S.S.I. 2014/264, art. 2, sch. (with art. 4)

85 Confirmation of intention to proceed with purchase and withdrawal S

(1) A crofting community body’s right to buy land [F209 , the interest of a tenant over land] or sporting interests under this Act is exercisable only if, within 21 days of the date of notification under section 88(12) below, it sends notice confirming its intention to proceed to buy the land [F210 , tenant's interest] or interests to Ministers and to the owner of the land or [F211 , as the case may be, the tenant or the] person entitled to the interests.

(2) A crofting community body may, at any time after—

(a) making an application under section 73 above, withdraw the application; or

(b) confirming its intention to proceed under subsection (1) above, withdraw that confirmation,

by notice in writing to that effect sent to Ministers.

(3) Ministers shall, within 7 days of receipt of notice under subsection (1) or (2) above, acknowledge receipt and send a copy of that acknowledgement to the owner of the land or [F212 , as the case may be, the tenant or the] person entitled to the interests.

Textual Amendments

F209 Words in s. 85(1) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(9)(a)(i) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F210 Words in s. 85(1) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(9)(a)(ii) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F211 Words in s. 85(1) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(9)(a)(iii) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F212 Words in s. 85(3) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(9)(b) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

86 Completion of purchase S

(1) It is for the crofting community body to secure the expeditious exercise of its right to buy and, in particular—

(a) to prepare the documents necessary to—

(i) effect the transfer; [F213 to it of the land or sporting interests or as the case may be the assignation to it of the tenant's interest] and

(ii) impose any conditions (including any real burdens or servitudes) which Ministers, under section 80 above, require to be imposed upon the title to land; and

(b) in so doing, to ensure—

(i) that the subjects of the application to which Ministers have consented are the same as those to be transferred; [F214 or assigned] and

(ii) that the transfer [F215 or assignation] is to be effected in accordance with any other conditions imposed by Ministers under section 80 above.

(2) Where the crofting community body is unable to fulfil the duty imposed by subsection (1)(b) above because part of the land or sporting interests in respect of which Ministers' consent was given is not owned by the person named as its owner or exercisable by the person named as the person entitled to them in the application under section 73 above, it shall refer that matter to Ministers.

(3) On a reference under subsection (2) above, Ministers may direct—

(a) that the right to buy be exercised as if the part of the land or interests not owned or not exercisable by the owner or person entitled so named had never been included in the description of the land or interests in the application to which they had consented; or

(b) that the crofting community body’s right to buy the land or interests which are the subject of the body’s application is, so far as proceeding on that application, extinguished.

(4) The owner of the land or person entitled to the [F216 sporting] interests being bought is obliged—

(a) to make available to the crofting community body such deeds and other documents as are sufficient to enable the body to proceed to complete its title to the land or interests; and

(b) to transfer title accordingly.

(5) If, within 6 weeks of the date on which Ministers consent to an application to buy land or sporting interests, the owner of the land or person entitled to the [F217 sporting] interests refuses or fails to make those deeds and other documents available, or they cannot be found, the Land Court may, on the application of the crofting community body, order the owner or person entitled or any other person appearing to the Court to have those deeds and documents to produce them.

(6) If the owner of the land or person entitled to the interests refuses or fails to effect such sufficient transfer as is mentioned in subsection (4) above, the Land Court may, on the application of the crofting community body, authorise its principal clerk to adjust, execute and deliver such deeds or other documents as will complete such transfer to the like force and effect as if done by the owner or person entitled.

[F218 (7) In relation to an application made by virtue of section 69A(2) above, the tenant is obliged to make available to the crofting community body such deeds and other documents as are sufficient to enable the body to complete its acquisition of the tenant's interest and the tenant is obliged to effect the assignation of his interest accordingly.

(8) If, within 6 weeks after the date on which Ministers consent to an application made by virtue of section 69A(2) above the tenant refuses or fails to make those deeds and other documents available, or they cannot be found, the Land Court may, on the application of the crofting community body, order the tenant or any other person appearing to the Court to have those deeds and documents to produce them.

(9) If the tenant refuses or fails to effect the assignation of the tenant's interest in accordance with subsection (7) above, the Land Court may, on the application of the crofting community body, authorise its principal clerk to adjust, execute and deliver such deeds or other documents as will complete the assignation to the like force and effect as if done by the tenant.]

Textual Amendments

F213 Words in s. 86(1)(a)(i) added (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(10)(a)(i) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F214 Words in s. 86(1)(b)(i) added (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(10)(a)(ii) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F215 Words in s. 86(1)(b)(ii) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(10)(a)(iii) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F216 Words in s. 86(4) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(10)(b) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F217 Words in S. 86(5) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(10)(c) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F218 Words in S. 86(7)-(9) added (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(10)(d) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

87 Completion of transfer S

(1) The consideration for the transfer of the land or sporting interests [F219 or for the assignation of the tenant's interest] shall be its or their value as assessed under section 88 below.

(2) That consideration shall, subject to subsections (3) and (4) below, be paid not later than the “final settlement date”, being the date on which expires a 6 month period beginning with the date (the “consent date”) when Ministers consented to the application under section 73 above to buy the land [F220 , the tenant's interest or the sporting] interests.

(3) Where—

(a) [F221 the crofting community body and, as the case may be, the owner, the tenant or the person entitled to the sporting interests] so agree, the consideration may be paid on a date later than the final settlement date;

(b) the assessment of the valuation of the land [F222 , the tenant's right or the sporting] interests under section 88 below has not been completed by a date 4 months after the consent date, the consideration shall be paid not later than 2 months after the date when that assessment is completed;

(c) that valuation is the subject of an appeal which has not been determined within 4 months of the consent date, the consideration shall be paid not later than 2 months after the date of that determination.

(4) Where, on the date the consideration is to be paid, the owner or person entitled to the interests is not able to effect the grant of a good and marketable title to the crofting community body [F223 or as the case may be the tenant is not able to assign his interest to that body]—

(a) the consideration; or

(b) if, for any reason, the consideration has not been ascertained, such sum as may be fixed by the valuer appointed under section 88(1) below as a fair estimate of what the consideration might be,

shall be consigned into the Land Court until that title is granted [F224 or assignation is effected] or the crofting community body gives notice to the Court of its decision not to proceed to complete the transaction.

(5) Where the consideration remains unpaid after the date not later than which it is to be paid, the crofting community body’s application under section 73 above in relation to the land [F225 , the tenant's interest or the sporting] interests shall be treated as withdrawn.

(6) Any heritable security which burdened the land [F226 or tenant's interest immediately before—

(a) title is granted to the crofting community body; or

(b) the tenant's interest is assigned to that body,

in pursuance of this section shall, on the recording of that title or assignation] in the Register of Sasines or registration in the Land Register of Scotland of the body’s interest in the land, cease to do so.

(7) Where such a security also burdens land other than the land in respect of which title is granted to the crofting community body, the security shall not, by virtue of subsection (6) above, cease to burden that other land.

[F227 (7A) Where such a security also burdens a tenant's interest other than the tenant's interest assigned to the crofting community body, the security shall not, by virtue of subsection (6) above, cease to burden that other interest.]

(8) Unless the creditors in right of any such security otherwise agree, the crofting community body shall pay to them according to their respective rights and preferences any sum which would, but for this subsection, be paid to the owner [F228 , or as the case may be to the tenant,] by the crofting community body as consideration for the land [F229 , tenant's interest or sporting] interests.

(9) Any sum paid by a crofting community body under subsection (8) above shall be deducted from the sum which the body is to pay to the owner as consideration for the land [F230 or as the case may be to the tenant as consideration for the interest of the tenant over the land].

Textual Amendments

F219 Words in s. 87(1) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(11)(a) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F220 Word in s. 87(2) substituted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(11)(b) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F221 Words in s. 87(3)(a) substituted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(11)(c)(i) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F222 Word in s. 87(3)(b) substituted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(11)(c)(ii) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F223 Words in s. 87(4) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(11)(d) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F224 Words in s. 87(4) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(11)(d) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F225 Words in s. 87(5) substituted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(11)(e) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F226 Words in s. 87(6) substituted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(11)(f) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F227 S. 87(7A) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(11)(g) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F228 Words in s. 87(8) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(11)(h)(i) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F229 Words in s. 87(8) substituted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(11)(h)(ii) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F230 Words in s. 87(9) added (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(11)(i) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

Chapter 3 S Valuation of croft land

88 Assessment of value of croft land etc. S

(1) Where Ministers consent to an application under section 73 above, they shall, subject to subsection (2) below, within 7 days of doing so appoint a valuer, being a person who appears to Ministers to be suitably qualified, independent and to have knowledge and experience of valuing land or [F231 interests of a kind which is similar to the land, tenant's interest] or sporting interests being bought, to assess the value of the land [F232 , tenant's interest] or sporting interests to which the application relates.

(2) Where Ministers refer a question to the Land Court under section 83(2) above they shall delay appointing the valuer until a day which is within 7 days of the day on which the Land Court makes its determination in respect of that reference.

(3) The validity of anything done under this section is not affected by any failure by Ministers to comply with the time limit specified in subsection (1) above.

(4) In assessing the value of land [F233 , the interest of a tenant over land] or interests in pursuance of an appointment under subsection (1) above, a valuer—

(a) does not act on behalf of the owner of the land [F234 , of the tenant, of the person entitled to the sporting interests or of the crofting community body which is exercising its right to buy the land, tenant's interest or sporting] interests under this Part of this Act; and

(b) shall act as an expert and not as an arbiter.

(5) The value to be assessed is the market value of the land [F235 , tenant's interest or sporting] interests as at the date when Ministers consented to the application under section 73 relating to the land [F236 , interest] or interests.

(6) The “market value” of land or interests is the aggregate of—

(a) the value it [F237 , a tenant's interest or sporting] they would have on the open market as between a seller and a buyer both of whom are, as respects the transaction, willing;

(b) any depreciation in the value of other land or interests belonging to the seller which may result from the transfer of land [F238 , a tenant's interest or sporting interests, including (in the case of land or sporting interests)] depreciation caused by division of the land or interests by the transfer of land or interests to the crofting community body; and

(c) the amount attributable to any disturbance to the seller which may arise in connection with the transfer of the land [F239 , tenant's interest or sporting] interests to the crofting community body.

(7) In arriving, for the purposes of this section, at the value which land [F240 , a tenant's interest or sporting] interests would have on the open market in the circumstances mentioned in subsection (6)(a) above—

(a) account may be taken, in so far as a seller and buyer such as are mentioned in subsection (6) above would do so, of any factor attributable to the known existence of a person who (not being the crofting community body which is exercising its right to buy the land or interests) would be willing to buy the land [F241 , a tenant's interest or sporting] interests at a price higher than others would because of a characteristic of the land [F242 , a tenant's interest or sporting] interests which relates peculiarly to that person’s interest in buying it;

(b) no account shall be taken of—

(i) any depreciation of the type mentioned in subsection (6)(b) above;

(ii) any disturbance of the type mentioned in subsection (6)(c) above;

(iii) the absence of the period of time during which the land [F243 , a tenant's interest or sporting] interests would, on the open market, be likely to be advertised and exposed for sale.

(8) The expense of a valuation under this section shall be met by Ministers.

(9) In carrying out a valuation under this section, the valuer shall invite the owner of the land or [F244 as the case may be the tenant, or the person entitled to the sporting] interests and the crofting community body which is exercising its right to buy the land [F245 , tenant's interest or sporting] interests to make representations in writing about the value of the land [F246 , interest] or interests and shall consider any representations made accordingly.

[F247 (9A) Where written representations under subsection (9) are received—

(a) from the owner of the land, the tenant or the person entitled to the sporting interests, the valuer must invite the crofting community body which is exercising its right to buy the land, tenant's interest or sporting interests to send its views on the representations in writing,

(b) from the crofting community body which is exercising its right to buy the land, tenant's interest or sporting interests, the valuer must invite the owner of the land, the tenant or the person entitled to the sporting interests to send the views of the owner, tenant or (as the case may be) person on the representations in writing.

(9B) In carrying out a valuation under this section, the valuer must consider any views sent under subsection (9A).]

(10) Where the crofting community body and the owner of the land or [F248 as the case may be the tenant, or the person entitled to the sporting] interests have agreed the valuation of the land [F249 the tenant's interest or the sporting] interests they shall notify the valuer in writing of that valuation.

(11) Where sporting interests in land which the body are seeking to buy are to be leased back to the owner of the land, the valuer shall, in assessing the value of those interests, take account of the terms and conditions of the lease which has been agreed between the owner and the body or, as the case may be, determined by the Land Court under section 83 above.

[F250 (12) The valuer shall, within the period set out in subsection (13) below, notify Ministers, the crofting community body and as the case may be the owner of the land, the tenant or the person entitled to the sporting interests, of the assessed value of the land, tenant's interest or sporting interests; and if there is a determination under section 88A(1) below shall within that period notify the crofting community body and the tenant of the determination.]

(13) The period referred to in subsection (12) above is the period of [F251 8] weeks beginning with the date of appointment of the valuer or such longer period as Ministers may, on an application by the valuer, fix.

(14) The validity of anything done under this Part of this Act is not affected by any failure by a valuer to comply with the time limit specified in subsection (13) above.

Textual Amendments

F231 Words in s. 88(1) substituted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(12)(a)(i) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F232 Words in s. 88(1) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(12)(a)(ii) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F233 Words in s. 88(4) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(12)(b)(i) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F234 Words in s. 88(4) substituted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(12)(b)(ii) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F235 Words in s. 88(5) substituted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(12)(c) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F236 Words in s. 88(5) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(12)(c)(ii) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F237 Words in s. 88(6) substituted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(12)(d)(i) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F238 Words in s. 88(6)(b) substituted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(12)(d)(ii) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F239 Words in s. 88(6)(c) substituted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(12)(d)(iii) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F240 Words in s. 88(7) substituted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(12)(e) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F241 Words in s. 88(7) substituted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(12)(e) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F242 Words in s. 88(7) substituted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(12)(e) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F243 Words in s. 88(7) substituted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(12)(e) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F244 Words in s. 88(9) substituted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(12)(f)(i) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F245 Words in s. 88(9) substituted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(12)(f)(ii) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F246 Words in s. 88(9) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(12)(f)(iii) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F247 S. 88(9A)(9B) inserted (24.2.2021) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 69(a), 142(1); S.S.I. 2020/448, art. 2 (with art. 3)

F248 Words in s. 88(10) substituted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(12)(g)(i) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F249 Words in s. 88(10) substituted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(12)(g)(ii) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F250 S. 88(12) substituted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(12)(h) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F251 Word in s. 88(13) substituted (24.2.2021) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 69(b), 142(1); S.S.I. 2020/448, art. 2 (with art. 3)

[F252 88A Acquisition of interest of tenant over land: allocation of rents etc. S

(1) Where an application made by virtue of subsection (2) of section 69A above does not relate to the entire tenanted land (“tenanted land” being construed in accordance with subsection (1) of that section), any resultant question as to the allocation, as between the tenant and the crofting community body, of rents payable or receivable, or as to the allocation as between them of rights and obligations generally, is to be determined by the valuer when, in pursuance of an appointment under section 88(1) above, he assesses the value of the interest of the tenant.

(2) Any determination under subsection (1) above is to be such as the valuer considers equitable in all the circumstances.]

Textual Amendments

F252 S. 88A inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 31(3), 43, (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

89 Compensation S

(1) Any person, including an owner or former owner of land or person entitled to sporting interests [F253 (and in the case of an application made by virtue of section 69A(2) above a tenant)], who has incurred loss or expense—

(a) in complying with the requirements of this Part of this Act following upon the making of an application under section 73 above by a crofting community body;

(b) as a result of the withdrawal by the crofting community body of its confirmation under section 85 above or its failure otherwise to complete the purchase after having so confirmed its intention under that section; or

(c) as a result of the failure of the crofting community body which made that application to complete the purchase,

is entitled to recover the amount of that loss or expense from the crofting community body.

(2) There is no such entitlement, however, where the application under section 73 above is refused.

(3) Where such an application has been refused, the owner of the land [F254 , the tenant or the person entitled to the sporting] interests who has incurred loss or expense as mentioned in subsection (1)(a) above is entitled to recover the amount of that loss or expense from Ministers.

[F255 (4) Ministers may, by order, make provision for or in connection with specifying—

(a) amounts payable in respect of loss or expense incurred as mentioned in subsection (1),

(b) amounts payable in respect of loss or expense incurred by virtue of this Part by a person of such other description as may be specified,

(c) the person who is liable to pay those amounts,

(d) the procedure under which claims for compensation under this section are to be made.]

(5) Where, at the expiry of such period of time as may be fixed for the purposes of this subsection by an order under subsection (4) above, any question as to whether compensation is payable or as to the amount of any compensation payable has not been settled as between the parties, either of them may refer the question to the Land Court.

Textual Amendments

F253 Words in s. 89(1) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(13)(a) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F254 Words in s. 89(3) substituted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(13)(b) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F255 S. 89(4) substituted (16.12.2016 for specified purposes, 24.2.2021 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 70, 142(1); S.S.I. 2016/394, art. 2, sch.; S.S.I. 2020/448, art. 2 (with art. 3)

90 Grants towards crofting community bodies' liabilities to pay compensation S

(1) Ministers may, in the circumstances set out in subsection (2) below, pay a grant to a crofting community body.

(2) Those circumstances are—

(a) that after settlement of its other liabilities connected with the exercise of its right to buy land [F256 , the interest of a tenant over land] or sporting interests under this Part of this Act, the crofting community body has insufficient money to pay, or to pay in full, the amount of compensation it has to pay under section 89 above;

(b) that the crofting community body has taken all reasonable steps to obtain money in order to pay, or to pay in full, that amount (other than applying for a grant under this section) but has been unable to obtain the money; and

(c) that it is in the public interest that Ministers pay the grant.

(3) The fact that all the circumstances set out in subsection (2) above obtain in a particular case does not prevent Ministers from refusing to pay a grant in that case.

(4) A grant under this section may be made subject to conditions which may stipulate repayment in the event of breach.

(5) Ministers may pay a grant under this section only on the application of a crofting community body.

(6) An application for such a grant shall be made in such form and in accordance with such procedure as are prescribed.

(7) Ministers shall issue their decision on an application under this section in writing accompanied by, in the case of a refusal, a statement of the reasons for it.

(8) Ministers' decision on an application under this section is final.

Textual Amendments

F256 Words in s. 90(2)(a) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(14) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

Chapter 4 S Appeals

91 Appeals S

(1) The owner of the land or person entitled to the sporting interests to which an application under section 73 above relates [F257 (and in the case of an application made by virtue of section 69A(2) above the tenant)] and any other person within subsection (2) below may, by summary application, appeal to the sheriff against Ministers' decision to consent to the application.

(2) The persons within this subsection are—

(a) any person who is a member of the crofting community defined in relation to the applicant crofting community body in pursuance of section 71 above;

(b) any person who has any interest in the land [F258 , lease] or sporting interests giving rise to a right which is legally enforceable by that person; and

(c) any person who was invited, under section 73(8)(a) above, to send views to Ministers on the application.

(3) The applicant crofting community body may, by summary application, appeal to the sheriff against Ministers' decision to refuse its application under section 73 above.

(4) Subsection (3) above does not extend to Ministers' decision under section 76 above upon which of two or more applications to buy the same land [F259 or tenant's interest] they should consent to.

(5) An appeal under subsection (1) or (3) above may be made only on a question of law and shall be lodged within 28 days of the date on which Ministers decided to consent to, or refuse, the application.

(6) The sheriff in whose sheriffdom the land [F260 which is the subject of the application (or as the case may be over which the tenancy has been created)] or any part of it is situated or the sporting interests or any part of them are exercisable has jurisdiction to hear an appeal under this section.

(7) The sheriff shall dispose of an appeal under this section by ordering that Ministers' decision be adhered to or reversed and such an order shall have the same effect as if it were a decision taken by Ministers on the application.

(8) Such an order is final.

(9) Where the effect of such an order is the same as granting the application, the order may be made subject to any condition to which Ministers could have made their decision subject under section 80 above.

(10) An order having the effect mentioned in subsection (9) above shall be consistent with any decision or findings of the Land Court under sections 77 or 81 above.

Textual Amendments

F257 Words in s. 91(1) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(15)(a) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F258 Words in s. 91(2)(b) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(15)(b) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F259 Words in s. 91(4) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(15)(c) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F260 Words in s. 91(6) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(15)(d) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

92 Appeals to Land Court: valuation S

(1) The owner of land or [F261 as the case may be the tenant or the] person entitled to the sporting interests the value of which has been assessed under section 88 above and the crofting community body which is exercising its right to buy the land [F262 , tenant's interest or sporting] interests may appeal to the Land Court against the valuation [F263 ; and if the valuer has made a determination under section 88A(1) above the tenant and that body may so appeal against the determination.].

(2) An appeal under this section shall state the grounds on which it is being made and shall be lodged within 21 days of the date of notification under section 88(12) above.

(3) In an appeal under this section, the Land Court may reassess the value of the land or [F264 as the case may be of the tenant's interest or the sporting interests and may substitute its own determination for any determination under section 88A(1) above.].

(4) The valuer whose valuation [F265 or determination] is appealed against may be a witness in the appeal proceedings.

(5) The Land Court shall give reasons for its decision on an appeal under this section and shall issue a written statement of these reasons [F266 —

(a) within 8 weeks of the hearing of the appeal, or

(b) where subsection (5A) applies, by such later date referred to in paragraph (b)(ii) of that subsection.]

[F267 (5A) This subsection applies where—

(a) the Land Court considers that it is not reasonable to issue a written statement mentioned in subsection (5) by the time limit specified in paragraph (a) of that subsection, and

(b) before the expiry of that time limit, the Land Court has notified the parties to the appeal—

(i) that the Land Court is unable to issue a written statement by that time limit, and

(ii) of the date by which the Land Court will issue such a written statement.]

(6) The validity of anything done under this Part of this Act is not affected by any failure of the Land Court [F268 —

(a) to comply with the time limit specified in paragraph (a) of subsection (5) above, or

(b) to issue a written statement by the date referred to in paragraph (b) of that subsection.]

[F269 (6A) Where the owner of land, the tenant, the person entitled to the sporting interests or the crofting community body appeals under this section, the owner, tenant, person so entitled or, as the case may be, crofting community body must, within 7 days of the date on which the appeal is made, notify Ministers in writing of—

(a) the making of the appeal, and

(b) the date of the making of the appeal.

(6B) The Land Court must send a copy of the written statement of reasons issued under subsection (5) to Ministers.

(6C) Failure to comply with subsection (6A) or (6B) has no effect on—

(a) the crofting community body's right to buy the land, the tenant's interest or the sporting interests, or

(b) the validity of the appeal under this section.]

(7) Ministers are not competent parties to any appeal under this section by reason only that they appointed the valuer whose valuation [F270 or determination] is the subject of the appeal.

Textual Amendments

F261 Words in s. 92(1) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(16)(a)(i) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F262 Words in s. 92(1) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(16)(a)(ii) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F263 Words in s. 92(1) added (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(16)(a)(iii) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F264 Words in s. 92(3) substituted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(16)(b) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F265 Words in s. 92(4) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(16)(c) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F266 S. 92(5)(a)(b) substituted for words (24.2.2021) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 71(a), 142(1); S.S.I. 2020/448, art. 2 (with art. 3)

F267 S. 92(5A) inserted (24.2.2021) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 71(b), 142(1); S.S.I. 2020/448, art. 2 (with art. 3)

F268 Words in s. 92(6) substituted (24.2.2021) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 71(c), 142(1); S.S.I. 2020/448, art. 2 (with art. 3)

F269 S. 92(6A)-(6C) inserted (24.2.2021) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 71(d), 142(1); S.S.I. 2020/448, art. 2 (with art. 3)

F270 Words in s. 92(7) inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(16)(c) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

93 Agreement as to matters referred or appealed S

An appeal under sections 91 or 92 above does not prevent the parties from settling or otherwise agreeing the matter in respect of which the appeal was made between or among them.

Chapter 5 S General and miscellaneous provisions

94 Register of Crofting Community Rights to Buy S

(1) The Crofters Commission shall set up and keep (or secure that there is set up and kept) a register to be known as the Register of Crofting Community Rights to Buy (the “crofting register”).

(2) The crofting register shall be set up and kept so as to contain, in a manner and form convenient for public inspection, the following information and documents relating to each application to exercise the right to buy registered in it—

(a) [F271 where the crofting community body which has submitted the application is constituted by a company limited by guarantee,] the name and address of the registered office of the company F272 ...;

[F273 (aa) where the crofting community body which has submitted the application is constituted by a Scottish charitable incorporated organisation within the meaning given in section 71(8) (a “SCIO”), the name and address of the principal office of the SCIO,

(ab) where the crofting community body which has submitted the application is constituted by a community benefit society as defined in section 71(8), the name and address of the registered office of the society,]

(b) a copy of the application;

(c) a copy of Ministers' decision consenting or refusing to consent to the exercise of the right to buy;

(d) a copy of—

(i) any notice of withdrawal by the crofting community body of an application to exercise the right to buy;

(ii) any notice of confirmation by the body of its intention to proceed to exercise that right;

(iii) any notice withdrawing that confirmation; and

(iv) any acknowledgement by Ministers of receipt of notice such as is mentioned in sub-paragraphs (i) to (iii) above; and

(e) such other information as Ministers consider appropriate.

[F274 (2A) Subsection (2B) applies where—

(a) a crofting community body changes its name,

(b) a crofting community body which is constituted by a company limited by guarantee or by a community benefit society changes the address of its registered office, or

(c) a crofting community body which is constituted by a SCIO changes the address of its principal office.

(2B) The crofting community body must, as soon as reasonably practicable after the change is made, notify the Crofting Commission of the change.]

(3) Ministers may, by order, modify paragraphs (a) to (e) of subsection (2) above.

[F275 (3A) If the crofting community body registering an application requires that any such information or document relating to that application and falling within subsection (3B) as is specified in the requirement be withheld from public inspection, that information or document is to be kept by or on behalf of Ministers separately from and not entered in the crofting register.

(3B) Information or a document falls within this subsection if it relates to arrangements for the raising or expenditure of money to enable the land to which the application relates to be put to a particular use.

(3C) Nothing in subsection (3A) or (3B) obliges an applicant crofting community body, or empowers Ministers to require such a body, to submit to Ministers any information or document within subsection (3B).]

(4) Any person who, under this Part of this Act, provides a document or other information, or makes a decision, which or a copy of which is to be registered in the crofting register shall, forthwith on providing the document or other information or, as the case may be, making the decision, give it or a copy of it to the Crofters Commission for the purpose of allowing it to be so registered.

(5) The Crofters Commission shall ensure—

(a) that the crofting register is, at all reasonable times, available for public inspection free of charge;

(b) that members of the public are given facilities for getting copies of entries in the crofting register on payment of reasonable charges;

(c) that any person requesting it is, on payment of such a charge, supplied with an extract entry certified to be a true copy of the original.

(6) An extract so certified shall be sufficient evidence of the original.

Textual Amendments

F271 Words in s. 94(2)(a) inserted (24.2.2021) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 72(2)(a)(i), 142(1); S.S.I. 2020/448, art. 2 (with art. 3)

F272 Words in s. 94(2)(a) repealed (24.2.2021) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 72(2)(a)(ii), 142(1); S.S.I. 2020/448, art. 2 (with art. 3)

F273 S. 94(2)(aa)(ab) inserted (24.2.2021) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 72(2)(b), 142(1); S.S.I. 2020/448, art. 2 (with art. 3)

F274 S. 94(2A)(2B) inserted (24.2.2021) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 72(3), 142(1); S.S.I. 2020/448, art. 2 (with art. 3)

F275 S. 94(3A)-(3C) inserted (24.2.2021) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 72(4), 142(1); S.S.I. 2020/448, art. 2 (with art. 3)

95 Avoidance of disposal other than to crofting community body S

[F276 (1) It is not competent for the owner of the land, or as the case may be the tenant or the person entitled to the sporting interests, to which an application under section 73 above relates—

(a) to dispose of the land or sporting interests; or

(b) to assign the tenant's interest,

after the consent date to any person other than the crofting community body which made the application.]

(2) Subsection (1) above has no effect where the crofting community body has withdrawn the application or has otherwise decided not to proceed to exercise its right to buy the land [F277 , tenant's interest or sporting] interests.

(3) In subsection (1) above, “consent date” has the same meaning as in section 87 above.

Textual Amendments

F276 S. 95(1) substituted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(17)(a) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

F277 Words in s. 95(2) substituted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(17)(b) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

96 Limitation on effect of this Part S

Nothing in this Part of this Act—

(a) affects any rights given by or under the 1993 Act or prevents a crofting community body from being a landlord for the purposes of that Act; or

(b) prevents a crofting community body from having and exercising power to acquire land [F278 (or an interest created over land)] or other property otherwise than under it.

Textual Amendments

F278 Words in s. 96(b) substituted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 39, 43, Sch. 1 para. 5(18) (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

97 Scottish Land Court S

(1) Subject to sections 79 and 91 above, the Land Court shall have jurisdiction to hear and determine all matters, whether of law or fact, which arise under this Part of this Act and, subject to section 1(7) of the Scottish Land Court Act 1993 (c. 45) (referral of question of law to Inner House of the Court of Session), the decision of the Land Court in any case shall be final.

(2) In section 1(7) of that Act of 1993, after the word “enactment” there is inserted “, or under Part 3 of the Land Reform (Scotland) Act 2003 (asp 2),”.

(3) Paragraph 6(2) of Schedule 1 to that Act of 1993 (appeal against order or determination arrived at under a delegation of Land Court’s powers) does not apply in relation to any order made, or determination arrived at, in pursuance of a matter which arises under this Part of this Act.

[F279 97ZA Meaning of creditor in standard security with right to sell S

Any reference in this Part to a creditor in a standard security with a right to sell land is a reference to a creditor who has such a right under—

(a) section 20(2) or 23(2) of the Conveyancing and Feudal Reform (Scotland) Act 1970, or

(b) a warrant granted under section 24(1) of that Act.]

Textual Amendments

F279 S. 97ZA inserted (24.2.2021) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 73, 142(1); S.S.I. 2020/448, art. 2 (with art. 3)

[F280 97A Construction of certain references to “tenant” S

In this Part, “tenant”, in any case where the reference is not to a tenant of a croft, includes sub-tenant (analogous expressions being construed accordingly).]

Textual Amendments

F280 S. 97A inserted (25.6.2007) by Crofting Reform etc. Act 2007 (asp 7), ss. 31(4), 43, (with ss. 40, 43(2)); S.S.I. 2007/269, art. 2, Sch.

[F281 Part 3A S Community right to buy abandoned, neglected or detrimental land

Textual Amendments

F281 Pt. 3A inserted (30.6.2017 for specified purposes, 27.6.2018 in so far as not already in force) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 74, 142(1); S.S.I. 2017/192, art. 2; S.S.I. 2018/139, art. 2(a)

97B Meaning of “land” S

In this Part, “land” includes—

(a) bridges and other structures built on or over land,

(b) inland waters (within the meaning of section 69(1) of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003),

(c) canals, and

(d) the foreshore, that is to say, the land between the high and low water marks of ordinary spring tides.

97C Right to buy eligible land S

(1) The land which may be bought by a Part 3A community body under this Part is eligible land.

(2) Land is eligible for the purposes of this Part if in the opinion of Ministers—

(a) it is wholly or mainly abandoned or neglected, or

(b) 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.

(3) In subsection (2)(b)—

(a) “harm”—

(i) includes harm the environmental effects of which have an adverse effect on the lives of persons comprising the relevant community mentioned in that subsection,

(ii) does not include harm which, in the opinion of Ministers, is negligible,

(b) “relevant community”, in relation to a Part 3A community body making an application under section 97G in relation to the land, means—

(i) the community defined as mentioned in subsection (9) of section 97D to which the Part 3A community body relates (reading that subsection as if paragraph (b)(ii) were omitted), or

(ii) where the Part 3A community body is a body mentioned in section 97D(1)(b), the community to which the body relates.

(4) In determining whether land is eligible for the purposes of this Part, Ministers must have regard to prescribed matters.

(5) Eligible land does not include—

(a) land on which there is a building or other structure which is an individual's home other than a building or other structure which is occupied by an individual under a tenancy,

(b) such land pertaining to land of the type mentioned in paragraph (a) as may be prescribed,

(c) eligible croft land (as defined in section 68(2)),

(d) any croft occupied or worked by its owner or a member of its owner's family,

(e) land which is owned or occupied by the Crown by virtue of its having vested as bona vacantia in the Crown, or its having fallen to the Crown as ultimus haeres,

(f) land of such other descriptions or classes as may be prescribed.

(6) Ministers may prescribe—

(a) descriptions or classes of building or structure which are, or are to be treated as, a home for the purposes of paragraph (a) of subsection (5),

(b) descriptions or classes of occupancy or possession which are, or are to be treated as, a tenancy for the purposes of that paragraph.

(7) In subsection (5)(d), the reference to a croft being occupied includes—

(a) a reference to its being occupied otherwise than permanently, and

(b) a reference to its being occupied by way of the occupation by its owner of any dwelling-house on or pertaining to it.

97D Part 3A community bodies S

(1) A Part 3A community body is, subject to subsection (6)––

(a) a body falling within subsection (2), (3) or (4), or

(b) a body of such other description as may be prescribed which complies with prescribed requirements.

(2) A body falls within this subsection if it is a company limited by guarantee the articles of association of which include the following—

(a) a definition of the community to which the company relates,

(b) provision enabling the company to exercise the right to buy land under this Part,

(c) provision that the company must have not fewer than 10 members,

(d) provision that at least three quarters of the members of the company are members of the community,

(e) provision whereby the members of the company who consist of members of the community have control of the company,

(f) provision ensuring proper arrangements for the financial management of the company,

(g) provision that any surplus funds or assets of the company are to be applied for the benefit of the community, and

(h) provision that, on the winding up of the company and after satisfaction of its liabilities, its property (including any land acquired by it under this Part) passes—

(i) to such other community body or crofting community body as may be approved by Ministers, or

(ii) if no other community body or crofting community body is so approved, to Ministers or to such charity as Ministers may direct.

(3) A body falls within this subsection if it is a Scottish charitable incorporated organisation (a “SCIO”) the constitution of which includes the following—

(a) a definition of the community to which the SCIO relates,

(b) provision enabling the SCIO to exercise the right to buy land under this Part,

(c) provision that the SCIO must have not fewer than 10 members,

(d) provision that at least three quarters of the members of the SCIO are members of the community,

(e) provision under which the members of the SCIO who consist of members of the community have control of the SCIO,

(f) provision ensuring proper arrangements for the financial management of the SCIO,

(g) provision that, on the request of any person for a copy of the minutes of a meeting of the SCIO, the SCIO must, if the request is reasonable, give the person within 28 days of the request a copy of those minutes,

(h) provision that, where a request of the type mentioned in paragraph (g) is made, the SCIO—

(i) may withhold information contained in the minutes, and

(ii) if it does so, must inform the person requesting a copy of the minutes of its reasons for doing so, and

(i) provision that any surplus funds or assets of the SCIO are to be applied for the benefit of the community.

(4) A body falls within this subsection if it is a community benefit society the registered rules of which include the following—

(a) a definition of the community to which the society relates,

(b) provision enabling the society to exercise the right to buy land under this Part,

(c) provision that the society must have not fewer than 10 members,

(d) provision that at least three quarters of the members of the society are members of the community,

(e) provision under which the members of the society who consist of members of the community have control of the society,

(f) provision ensuring proper arrangements for the financial management of the society,

(g) provision that, on the request of any person for a copy of the minutes of a meeting of the society, the society must, if the request is reasonable, give the person within 28 days of the request a copy of those minutes,

(h) provision that, where a request of the type mentioned in paragraph (g) is made, the society—

(i) may withhold information contained in the minutes, and

(ii) if it does so, must inform the person requesting a copy of the minutes of its reasons for doing so, and

(i) provision that any surplus funds or assets of the society are to be applied for the benefit of the community.

(5) Ministers may, if they think it in the public interest to do so, disapply the requirement specified in subsection (2)(c), (3)(c) or (4)(c) in relation to any body they may specify.

(6) A body is not a Part 3A community body unless Ministers have given it written confirmation that they are satisfied that the main purpose of the body is consistent with furthering the achievement of sustainable development.

(7) Ministers may by regulations from time to time amend subsections (2), (3) and (4).

(8) If provision is made under subsection (1)(b), Ministers may by regulations make such amendment of section 97E(1) in consequence of that provision as they consider necessary or expedient.

(9) A community—

(a) is defined for the purposes of subsection (2)(a), (3)(a) and (4)(a) by reference to a postcode unit or postcode units or a prescribed type of area (or both such unit and type of area), and

(b) comprises the persons from time to time—

(i) resident in that postcode unit or in one of those postcode units or in that prescribed type of area, and

(ii) entitled to vote, at a local government election, in a polling district which includes that postcode unit or those postcode units or that prescribed type of area (or part of it or them).

(10) In subsection (9), “postcode unit” means an area in relation to which a single postcode is used to facilitate the identification of postal service delivery points within the area.

(11) The articles of association of a company which is a Part 3A community body may, notwithstanding the generality of paragraph (h) of subsection (2), provide that its property may, in the circumstances mentioned in that paragraph, pass to another person only if that person is a charity.

(12) In this section––

• “charity” means a body entered in the Scottish Charity Register,

• “community benefit society” means a registered society (within the meaning of section 1 of the Co-operative and Community Benefit Societies Act 2014) registered as a community benefit society under section 2 of that Act,

• “company limited by guarantee” has the meaning given by section 3(3) of the Companies Act 2006,

• “registered rules” has the meaning given by section 149 of that Act of 2014 (as that meaning applies in relation to community benefit societies),

• “Scottish charitable incorporated organisation” has the meaning given by section 49 of the Charities and Trustee Investment (Scotland) Act 2005.

97E Provisions supplementary to section 97D S

[F282 (1) A Part 3A community body—

(a) which has bought land under this Part, any part of which remains in its ownership, and

(b) which modifies its memorandum, articles of association, constitution or registered rules (as defined in section 97D(12)),

must, as soon as possible after such modification, notify the Scottish Ministers in writing of the modification.]

(2) If Ministers are satisfied that a Part 3A community body which has, under this Part, bought land would, had it not so bought that land, no longer be entitled to do so, they may acquire the land compulsorily.

(3) Subsection (2) does not apply if the Part 3A community body would no longer be entitled to buy the land because the land is not eligible for the purposes of this Part.

(4) Where the power conferred by subsection (2) is (or is to be) exercised in relation to land, Ministers may make an order relating to, or to matters connected with, the acquisition of the land.

(5) An order under subsection (4) may—

(a) apply, modify or exclude any enactment which relates to any matter as to which an order could be made under that subsection,

(b) make such modifications of enactments as appear to Ministers to be necessary or expedient in consequence of any provision of the order or otherwise in connection with the order.

Textual Amendments

F282 S. 97E(1) substituted (27.6.2018) by Land Reform (Scotland) Act 2016 (asp 18), s. 130(1), sch. 1 para. 1(5) (with s. 128); S.S.I. 2018/138, art. 3, sch. 2

97F [F283 Inclusion of applications for right to buy in Register of Applications by Community Bodies to Buy Land] S

[F284 (1) The Keeper must keep the Register of Applications by Community Bodies to Buy Land (the “New Register”), established under section 52 of the Land Reform (Scotland) Act 2016, so that there is contained in it a part for registering information and documents relating to applications for the right to buy in accordance with section 97G.]

(2) The [F285 New Register] must be set up and kept so as to contain, in a manner and form convenient for public inspection, the following information and documents relating to each application to exercise the right to buy under this Part registered in it—

(a) where the Part 3A community body which has submitted the application is constituted by a company limited by guarantee, the name and address of the registered office of the company,

(b) where the Part 3A community body which has submitted the application is constituted by a Scottish charitable incorporated organisation within the meaning given in section 97D(12) (a “SCIO”), the name and address of the principal office of the SCIO,

(c) where the Part 3A community body which has submitted the application is constituted by a community benefit society as defined in section 97D(12), the name and address of the registered office of the society,

(d) a copy of the application to exercise the right to buy under this Part,

(e) a copy of any notification given under section 97K(4)(b),

(f) a copy of the notice given under section 97M(1),

(g) a copy of any notice under section 97P(1),

(h) a copy of any notice under section 97P(2)(a),

(i) a copy of any notice under section 97P(2)(b),

(j) a copy of any acknowledgement sent under section 97P(3),

(k) such other information as Ministers consider appropriate.

(3) Subject to subsection (4), any person who, under this Part, provides a document or other information, or makes a decision, which or a copy of which is to be registered in the [F286 New] Register must, as soon as reasonably practicable after providing the document or other information or, as the case may be, making the decision, give it or a copy of it to the Keeper for the purpose of allowing it to be so registered.

(4) If the Part 3A community body registering an application requires that any such information or document relating to that application and falling within subsection (5) as is specified in the requirement be withheld from public inspection, that information or document is to be kept by or on behalf of Ministers separately from and not entered in the [F287 New] Register.

(5) Information or a document falls within this subsection if it relates to arrangements for the raising or expenditure of money to enable the land to which the application relates to be put to a particular use.

(6) Nothing in subsection (4) or (5) obliges an applicant Part 3A community body, or empowers Ministers to require such a body, to submit to Ministers any information or document within subsection (5).

(7) Subsection (8) applies where—

(a) a Part 3A community body changes its name,

(b) a Part 3A community body which is constituted by a company limited by guarantee or by a community benefit society changes the address of its registered office, or

(c) a Part 3A community body which is constituted by a SCIO changes the address of its principal office.

(8) The Part 3A community body must, as soon as reasonably practicable after the change is made, notify the Keeper of the change.

(9) Ministers may by regulations modify—

(a) paragraphs (a) to (j) of subsection (2),

(b) subsection (4),

(c) subsection (5).

F288 (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F288 (11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(12) In this Part, “the Keeper” means—

(a) the Keeper of the Registers of Scotland, or

(b) such other person as Ministers may appoint to carry out the Keeper's functions under this Part.

(13) Different persons may be so appointed for different purposes.

Textual Amendments

F283 S. 97F title substituted (27.6.2018) by Land Reform (Scotland) Act 2016 (asp 18), ss. 53(7), 130(1) (with ss. 61(5), 128); S.S.I. 2018/138, art. 3, sch. 2

F284 S. 97F(1) substituted (27.6.2018) by Land Reform (Scotland) Act 2016 (asp 18), ss. 53(2), 130(1) (with ss. 61(5), 128); S.S.I. 2018/138, art. 3, sch. 2

F285 Words in s. 97F(2) substituted (27.6.2018) by Land Reform (Scotland) Act 2016 (asp 18), ss. 53(3), 130(1) (with ss. 61(5), 128); S.S.I. 2018/138, art. 3, sch. 2

F286 Word in s. 97F(3) substituted (27.6.2018) by Land Reform (Scotland) Act 2016 (asp 18), ss. 53(4), 130(1) (with ss. 61(5), 128); S.S.I. 2018/138, art. 3, sch. 2

F287 Word in s. 97F(4) inserted (27.6.2018) by Land Reform (Scotland) Act 2016 (asp 18), ss. 53(5), 130(1) (with ss. 61(5), 128); S.S.I. 2018/138, art. 3, sch. 2

F288 S. 97F(10)(11) repealed (27.6.2018) by Land Reform (Scotland) Act 2016 (asp 18), ss. 53(6), 130(1) (with ss. 61(5), 128); S.S.I. 2018/138, art. 3, sch. 2

97G Right to buy: application for consent S

(1) The right to buy under this Part may be exercised only by a Part 3A community body.

(2) That right may be so exercised only with the consent of Ministers given on the written application of the Part 3A community body.

(3) That right may be exercised in relation to more than one holding of land but in order so to exercise the right an application must be made in respect of each such holding and applications so made may be differently disposed of.

(4) In subsection (3), a “holding” of land is land in the ownership of one person or in common or joint ownership.

(5) An application under this section—

(a) must be made in the prescribed form,

(b) must specify—

(i) the owner of the land,

(ii) any tenant of the land, and

(iii) any creditor in a standard security over the land or any part of it, and

(c) must include or be accompanied by information of the prescribed kind including information (provided, where appropriate, by or by reference to maps or drawings) about the matters mentioned in subsection (6).

(6) The matters are—

(a) the reasons the Part 3A community body considers that its proposals for the land are—

(i) in the public interest, and

(ii) compatible with furthering the achievement of sustainable development in relation to the land,

(b) the reasons the Part 3A community body considers that the land is—

(i) wholly or mainly abandoned or neglected, or

(ii) being used or managed in such a way as to result in or cause harm as mentioned in section 97C(2)(b),

(c) the location and boundaries of the land in respect of which the right to buy is sought to be exercised,

(d) all rights and interests in the land known to the Part 3A community body,

(e) the proposed use, development and management of the land, and

(f) where the Part 3A community body has made a request to a relevant regulator as mentioned in section 97H(5)(b) (“relevant regulator” being construed in accordance with section 97H(6)), information about the request.

(7) A Part 3A community body applying under this section must, at the same time as it applies—

(a) send a copy of its application and the accompanying information to the owner of the land to which the application relates, and

(b) where there is a standard security in relation to the land or any part of it, send a copy of the application and the accompanying information to the creditor who holds the standard security and invite the creditor—

(i) to notify the Part 3A community body and Ministers, within 60 days of receipt of the invitation, if any of the circumstances set out in subsection (8) has arisen (or arises within 60 days of receipt of the invitation), and

(ii) if such notice is given, to provide Ministers, within that time, with the creditor's views in writing on the application.

(8) Those circumstances are that—

(a) a calling-up notice has been served by the creditor under section 19 of the Conveyancing and Feudal Reform (Scotland) Act 1970 in relation to the land which the Part 3A community body is seeking to exercise its right to buy or any part of the land and that notice has not been complied with,

(b) a notice of default served by the creditor under section 21 of that Act in relation to the land or any part of the land has not been complied with and the person on whom the notice was served has not, within the period specified in section 22 of that Act, objected to the notice by way of application to the court,

(c) where that person has so objected, the court has upheld or varied the notice of default,

(d) the court has granted the creditor a warrant under section 24 of that Act in relation to the land or any part of the land.

(9) On receipt of an application under this section, Ministers must—

(a) invite—

(i) the owner of the land,

(ii) any tenant of the land,

(iii) any creditor in a standard security over the land or any part of it, and

(iv) any other person whom Ministers consider to have an interest in the application,

to send them, so as to be received not later than 60 days after the sending of the invitation, views in writing on the application,

(b) take reasonable steps to invite the owners of all land contiguous to the land to which the application relates to send them, so as to be received not later than 60 days after the sending of the invitation, views in writing on the application, and

(c) send copies of invitations given under paragraphs (a) and (b) to the Part 3A community body.

(10) An invitation given under subsection (9)(a)(i) must also invite the owner to give Ministers information about—

(a) whether the owner considers that it would be in the public interest for Ministers to consent to the application and, if not, the reasons the owner considers that it would not be in the public interest for such consent to be given,

(b) whether the owner's continuing to own the land would be compatible with furthering the achievement of sustainable development in relation to the land,

(c) whether the owner considers the land to be wholly or mainly neglected or abandoned or, as the case may be, to be used or managed in such a way as to result in or cause harm as mentioned in section 97C(2)(b) and the reasons for the owner's view,

(d) any proposals that the owner has for the land,

(e) any rights or interests in the land of which the owner is aware that are not mentioned in the application, and

(f) any other matter that the owner considers is relevant to the application.

(11) Ministers must, as soon as practicable after receiving an application, give public notice of it and of the date by which, under subsection (9)(a), views are to be received by them and, in that notice, invite persons to send to Ministers, so as to be received by them not later than 60 days after the publication of the notice, views in writing on the application.

(12) That public notice is to be given by advertisement in such manner as may be prescribed.

(13) Ministers must—

(a) send copies of any views they receive under this section to the Part 3A community body, and

(b) invite it to send them, so as to be received by them not later than 60 days after the sending of that invitation, its responses to these views.

(14) Ministers must, when considering whether to consent to an application under this section, have regard to all views on it and responses to the views which they have received in answer to invitations under this section.

(15) Ministers must decline to consider an application which—

(a) does not comply with the requirements of or imposed under this section,

(b) is otherwise incomplete, or

(c) otherwise indicates that it is one which Ministers would be bound to reject;

and Ministers are not required to comply with subsections (9) to (14) in relation to such an application.

(16) Ministers must not reach a decision on an application before—

(a) the date which is 60 days after the last date on which the Part 3A community body may provide Ministers with a response to the invitation given under subsection (13), or

(b) if by that date the Lands Tribunal has not advised Ministers of its finding on any question referred to it under section 97X in relation to the application, the date on which the Lands Tribunal provides Ministers with that finding.

(17) A Part 3A community body may require Ministers to treat as confidential any information or document relating to arrangements for the raising or expenditure of money to enable the land to be put to a particular use, being information or a document made available to Ministers for the purposes of this section.

97H Criteria for consent S

(1) Ministers must not consent to an application made under section 97G unless they are satisfied—

(a) that the land to which the application relates is eligible land,

(b) that the exercise by the Part 3A community body of the right to buy under this Part is—

(i) in the public interest, and

(ii) compatible with furthering the achievement of sustainable development in relation to the land,

(c) that the achievement of sustainable development in relation to the land would be unlikely to be furthered by the owner of the land continuing to be its owner,

(d) that the owner of the land is accurately identified in the application,

(e) that any creditor in a standard security over the land or any part of it with a right to sell the land or any part of it is accurately identified in the application,

(f) that the owner is not—

(i) prevented from selling the land, or

(ii) subject to any enforceable personal obligation (other than an obligation arising by virtue of any right suspended by regulations under section 97N(3)) to sell the land otherwise than to the Part 3A community body,

(g) that the Part 3A community body complies with the provisions of section 97D,

(h) that—

(i) a significant number of the members of the community to which the application relates have a connection with the land,

(ii) the land is sufficiently near to land with which those members of the community have a connection,

(iii) where the Part 3A community body is a body mentioned in section 97D(1)(a), the land is in or sufficiently near to the area of the community by reference to which the community is defined as mentioned in section 97D(9)(a), or

(iv) where the Part 3A community body is a body mentioned in section 97D(1)(b), the land is in or sufficiently near to the area of the community to which the body relates,

(i) that the community have approved the proposal to exercise the right to buy, and

(j) that, otherwise than by virtue of this Part, the Part 3A community body has tried and failed to buy the land.

(2) Subsection (1) is subject to subsections (3) to (7).

(3) Subsections (4) to (7) apply in relation to an application made under section 97G that relates to land the use or management of which is such that it results in or causes harm to the environmental wellbeing of a relevant community (as defined in section 97C(3)).

(4) In deciding whether to consent to the application, Ministers are not required to be satisfied as to the matter mentioned in subsection (1)(c) in relation to the land.

(5) Ministers must not consent to the application unless they are satisfied (in addition to the matters specified in subsection (1) as read with subsection (4))—

(a) that the exercise by the Part 3A community body of the right to buy under this Part is compatible with removing, or substantially removing, the harm to the environmental wellbeing of the relevant community,

(b) that the Part 3A community body has, before the application is submitted, made a request to—

(i) a relevant regulator (if any), or

(ii) where there is more than one relevant regulator, to all such regulators,

to take action in relation to the land in exercise of its (or their) relevant regulatory functions that could, or might reasonably be expected to, remedy or mitigate the harm, and

(c) (regardless of whether or not a relevant regulator is taking, or has taken, action in exercise of its relevant regulatory functions in relation to the land) that the harm is unlikely to be removed, or substantially removed, by the owner of the land continuing to be its owner.

(6) For the purposes of subsection (5)—

(a) “regulator” means—

(i) such person, body or office-holder as may be prescribed, or

(ii) a person, body or office-holder of such description as may be prescribed,

(b) a regulator is “relevant” if, in the opinion of Ministers, the regulator is relevant having regard to the harm to the environmental wellbeing of the relevant community,

(c) action taken by a relevant regulator in exercise of its relevant functions includes action to secure compliance with or enforce a regulatory requirement,

(d) “regulatory functions” has the meaning given by section 1(5) (as read with section 1(6)) of the Regulatory Reform (Scotland) Act 2014, but as if the words “but does not include any such functions exercisable by a planning authority” in section 1(5) were omitted,

(e) a regulatory function is “relevant” if, in the opinion of Ministers, the function is relevant having regard to the harm to the environmental wellbeing of the relevant community.

(7) In subsection (6)(c), “regulatory requirement” has the meaning given by section 1(5) of the Regulatory Reform (Scotland) Act 2014, but as if the references to “regulator” and “regulatory functions” in paragraph (b) of that definition were references respectively to “regulator” and “regulatory functions” within the meaning given by subsection (6) of this section.

(8) References in subsection (1) to the community are, in relation to a Part 3A community body, references to—

(a) where the body is a body mentioned in section 97D(1)(a), the community defined in relation to the body under section 97D(2)(a), (3)(a) or (4)(a), or

(b) where the body is a body mentioned in section 97D(1)(b), the community to which the body relates.

97J Ballot to indicate approval for purposes of section 97H S

(1) The community, defined in pursuance of section 97D in relation to a Part 3A community body which has applied to buy land, are to be taken for the purposes of section 97H(1)(i) as having approved a proposal to buy if—

(a) a ballot of the members of the community so defined has, during the period of six months which immediately preceded the date on which the application was made, been conducted by the Part 3A community body on the question whether the Part 3A community body should buy the land,

(b) in the ballot—

(i) at least half of the members of the community so defined have voted, or

(ii) fewer than half of the members of the community so defined have voted but the proportion which voted is sufficient to justify the Part 3A community body's proceeding to buy the land, and

(c) the majority of those voting have voted in favour of the proposition that the Part 3A community body buy the land.

(2) The ballot is to be conducted as prescribed.

(3) The provisions prescribed must in particular include provision for—

(a) the ascertainment and publication of—

(i) the number of persons eligible to vote in the ballot,

(ii) the number who did vote, and

(iii) the numbers of valid votes respectively cast for and against the proposition mentioned in subsection (1)(c), and

(b) the form and manner in which the result of the ballot is to be published.

(4) The Part 3A community body which conducts a ballot must, within 21 days of the ballot (or, if its application under section 97G is made before the expiry of that period, together with the application), and in the prescribed form of return, notify Ministers of—

(a) the result,

(b) the number of persons eligible to vote,

(c) the number of persons who voted, and

(d) the number of persons who voted in favour of the proposition mentioned in subsection (1)(c).

(5) Ministers may require the Part 3A community body—

(a) to provide such information relating to the ballot as they think fit, and

(b) to provide such information relating to any consultation with those eligible to vote in the ballot undertaken during the period in which the ballot was carried out as Ministers think fit.

(6) Subject to subsection (7), the expense of conducting a ballot under this section is to be met by the Part 3A community body.

(7) Ministers may by regulations make provision for or in connection with enabling a Part 3A community body, in such circumstances as may be specified in the regulations, to apply to them to seek reimbursement of the expense of conducting a ballot under this section.

(8) Regulations under subsection (7) may in particular make provision in relation to—

(a) the circumstances in which a Part 3A community body may make an application by virtue of that subsection,

(b) the method to be applied by Ministers in calculating the expense of conducting the ballot,

(c) the criteria to be applied by Ministers in deciding whether to make a reimbursement to the applicant,

(d) the procedure to be followed in connection with the making of—

(i) an application to Ministers,

(ii) an appeal against a decision made by Ministers in respect of an application,

(e) persons who may consider such an appeal,

(f) the powers of such persons.

(9) If the ballot is not conducted as prescribed, the Part 3A community body's right to buy the land to which the body's application relates is, so far as proceeding on that application, extinguished.

97K Right to buy same land exercisable by only one Part 3A community body S

(1) Only one Part 3A community body may exercise the right under this Part to buy the same land.

(2) Where two or more such bodies have applied to buy the same land, it is for Ministers to decide which application is to proceed.

(3) Ministers may not make such a decision unless they have had regard to all views on each of the applications, and responses to the views, which they have received in answer to invitations under section 97G.

(4) On Ministers so deciding—

(a) the other body's right to buy the land which is the subject of the body's application is, so far as proceeding on that application, extinguished, and

(b) they must notify the bodies and each person invited, under section 97G(9)(a), to send them views on the application of that fact.

97L Consent conditions S

Ministers may make their consent to an application made under section 97G subject to conditions.

97M Notification of Ministers' decision on application S

(1) Ministers must give written notice, in prescribed form, of their decision on an application made under section 97G, and their reasons for it, to—

(a) the applicant Part 3A community body,

(b) the owner of the land to which the application relates,

(c) every other person who was invited, under section 97G(9)(a), to send them views on the application, and

(d) the Keeper.

(2) The form of notice is to be prescribed so as to secure that the notice includes a full description of—

(a) the land to which the application relates (provided, where appropriate, by or by reference to maps and drawings), and

(b) where their decision is to consent to the application, any conditions imposed under section 97L.

(3) The notice given under subsection (1) must—

(a) contain information about the consequences of the decision notified and of the rights of appeal against it given by this Part, and

(b) state the date on which consent is given or refused.

97N Effect of Ministers' decision on right to buy S

(1) Ministers may by regulations make provision for or in connection with prohibiting, during such period as may be specified in the regulations, persons so specified from transferring or otherwise dealing with land in respect of which a Part 3A community body has made an application under section 97G.

(2) Regulations under subsection (1) may in particular include provision—

(a) specifying transfers or dealings which are not prohibited by the regulations,

(b) requiring or enabling such persons as may be specified in the regulations, in such circumstances as may be so specified, to register in the [F289 New Register] notices as may be so specified,

(c) requiring, in such circumstances as may be specified in the regulations, such information as may be so specified to be incorporated into deeds relating to the land as may be so specified.

(3) Ministers may by regulations make provision for or in connection with suspending, during such period as may be specified in the regulations, such rights in or over land in respect of which a Part 3A community body has made an application under section 97G as may be so specified.

(4) Regulations under subsection (3) may in particular include provision specifying—

(a) rights to which the regulations do not apply,

(b) rights to which the regulations do not apply in such circumstances as may be specified in the regulations.

(5) Nothing in this Part—

(a) affects the operation of an inhibition on the sale of the land,

(b) prevents an action of adjudication from proceeding, or

(c) affects the commencement, execution or operation of any other diligence.

Textual Amendments

F289 Words in s. 97N(2)(b) substituted (27.6.2018) by Land Reform (Scotland) Act 2016 (asp 18), s. 130(1), sch. 1 para. 1(6) (with s. 128); S.S.I. 2018/138, art. 3, sch. 2

97P Confirmation of intention to proceed with purchase and withdrawal S

(1) A Part 3A community body's right to buy land under this Act is exercisable only if, within 21 days of the date of notification under section 97S(12), it sends notice in writing confirming its intention to proceed to buy the land to—

(a) Ministers, and

(b) the owner of the land.

(2) A Part 3A community body may, at any time after—

(a) making an application under section 97G, withdraw the application, or

(b) confirming its intention to proceed under subsection (1), withdraw that confirmation,

by notice in writing to that effect sent to Ministers.

(3) Ministers must, within 7 days of receipt of notice under subsection (1) or (2), acknowledge receipt and send a copy of that acknowledgement to the owner of the land.

97Q Completion of purchase S

(1) It is for the Part 3A community body to secure the expeditious exercise of its right to buy and, in particular—

(a) to prepare the documents necessary to—

(i) effect the transfer to it of the land, and

(ii) impose any conditions (including any real burdens or servitudes) which Ministers, under section 97L, require to be imposed upon the title to land, and

(b) in so doing, to ensure—

(i) that the land in the application to which Ministers have consented is the same as that to be transferred, and

(ii) that the transfer is to be effected in accordance with any other conditions imposed by Ministers under section 97L.

(2) Where the Part 3A community body is unable to fulfil the duty imposed by subsection (1)(b) because the land or part of the land in respect of which Ministers' consent was given is not owned by the person named as its owner in the application made under section 97G, it must refer that matter to Ministers.

(3) On a reference under subsection (2), Ministers must direct

(4) The owner of the land being bought is obliged—

(a) to make available to the Part 3A community body such deeds and other documents as are sufficient to enable the body to proceed to complete its title to the land, and

(b) to transfer title accordingly.

(5) If, within 6 weeks of the date on which Ministers consent to an application to buy land, the owner of the land refuses or fails to make those deeds and other documents available, or they cannot be found, the Lands Tribunal may, on the application of the Part 3A community body, order the owner or any other person appearing to the Lands Tribunal to have those deeds and documents to produce them.

(6) If the owner of the land refuses or fails to effect such sufficient transfer as is mentioned in subsection (4), the Lands Tribunal may, on the application of the Part 3A community body, authorise its clerk to adjust, execute and deliver such deeds or other documents as will complete such transfer to the like force and effect as if done by the owner or person entitled.

97R Completion of transfer S

(1) The consideration for the transfer of the land is its value as assessed under section 97S.

(2) Subject to subsections (3) and (4), that consideration must be paid not later than the “final settlement date”, being the date on which expires a 6 month period beginning with the date (the “consent date”) when Ministers consented to the application made under section 97G to buy the land.

(3) Where—

(a) the Part 3A community body and the owner so agree, the consideration may be paid on a date later than the final settlement date,

(b) the assessment of the valuation of the land has not been completed by a date 4 months after the consent date, the consideration must be paid not later than 2 months after the date when that assessment is completed,

(c) that valuation is the subject of an appeal which has not been determined within 4 months of the consent date, the consideration must be paid not later than 2 months after the date of that determination.

(4) If, on the date the consideration is to be paid, the owner is not able to effect the grant of a good and marketable title to the Part 3A community body—

(a) the consideration, or

(b) if, for any reason, the consideration has not been ascertained, such sum as may be fixed by the valuer appointed under section 97S as a fair estimate of what the consideration might be,

must be consigned into the Lands Tribunal until that title is granted or the Part 3A community body gives notice to the Tribunal of its decision not to proceed to complete the transaction.

(5) Except where subsection (4) applies, if the consideration remains unpaid after the date not later than which it is to be paid, the Part 3A community body's application made under section 97G in relation to the land is to be treated as withdrawn.

(6) Any heritable security which burdened the land immediately before title is granted to the Part 3A community body in pursuance of this section ceases to do so on the recording of that title in the Register of Sasines or registration in the Land Register of Scotland of the body's interest in the land.

(7) Where such a security also burdens land other than the land in respect of which title is granted to the Part 3A community body, the security does not, by virtue of subsection (6), cease to burden that other land.

(8) Unless the creditors in right of any such security otherwise agree, the Part 3A community body must pay to them according to their respective rights and preferences any sum which would, but for this subsection, be paid to the owner by the Part 3A community body as consideration for the land.

(9) Any sum paid by a Part 3A community body under subsection (8) must be deducted from the sum which the body is to pay to the owner as consideration for the land.

97S Assessment of value of land etc. S

(1) Where Ministers consent to an application made under section 97G, they must, subject to subsection (2), within 7 days of doing so appoint a valuer, being a person who appears to Ministers to be suitably qualified, independent and to have knowledge and experience of valuing land of a kind which is similar to the land being bought, to assess the value of the land to which the application relates.

(2) The validity of anything done under this section is not affected by any failure by Ministers to comply with the time limit specified in subsection (1).

(3) In assessing the value of land in pursuance of an appointment under subsection (1), a valuer—

(a) does not act on behalf of the owner of the land or of the Part 3A community body which is exercising its right to buy the land under this Part, and

(b) is to act as an expert and not as an arbiter.

(4) The value to be assessed is the market value of the land as at the date when Ministers consented to the application made under section 97G relating to the land.

(5) The “market value” of land is the aggregate of—

(a) the value it would have on the open market as between a seller and a buyer both of whom are, as respects the transaction, willing,

(b) any depreciation in the value of other land or interests belonging to the seller which may result from the transfer of land, including depreciation caused by division of the land by the transfer of land to the Part 3A community body, and

(c) the amount attributable to any disturbance to the seller which may arise in connection with the transfer of the land to the Part 3A community body.

(6) In arriving, for the purposes of this section, at the value which land would have on the open market in the circumstances mentioned in subsection (5)(a)—

(a) account may be taken, in so far as a seller and buyer such as are mentioned in subsection (5) would do so, of any factor attributable to the known existence of a person who (not being the Part 3A community body which is exercising its right to buy the land) would be willing to buy the land at a price higher than others would because of a characteristic of the land which relates peculiarly to that person's interest in buying it,

(b) no account is to be taken of—

(i) any depreciation of the type mentioned in subsection (5)(b),

(ii) any disturbance of the type mentioned in subsection (5)(c),

(iii) the absence of the period of time during which the land would, on the open market, be likely to be advertised and exposed for sale.

(7) The expense of a valuation under this section is to be met by Ministers.

(8) In carrying out a valuation under this section, the valuer must—

(a) invite—

(i) the owner of the land, and

(ii) the Part 3A community body which is exercising its right to buy the land,

to make representations in writing about the value of the land, and

(b) consider any representations made accordingly.

(9) Where written representations under subsection (8) are received—

(a) from the owner of the land, the valuer must invite the Part 3A community body which is exercising its right to buy the land to send its views on the representations in writing,

(b) from the Part 3A community body which is exercising its right to buy the land, the valuer must invite the owner of the land to send the owner's views on the representations in writing.

(10) In carrying out a valuation under this section, the valuer must consider any views sent under subsection (9).

(11) Where the Part 3A community body and the owner of the land have agreed the valuation of the land they must notify the valuer in writing of that valuation.

(12) The valuer must, within the period set out in subsection (13), notify Ministers, the Part 3A community body and the owner of the land of the assessed value of the land.

(13) The period referred to in subsection (12) is the period of 8 weeks beginning with the date of appointment of the valuer or such longer period as Ministers may, on an application by the valuer, fix.

(14) The validity of anything done under this Part is not affected by any failure by a valuer to comply with the time limit specified in subsection (13).

97T Compensation S

(1) Any person, including an owner or former owner of land, who has incurred loss or expense—

(a) in complying with the requirements of this Part following the making of an application under section 97G by a Part 3A community body,

(b) as a result of the withdrawal by the Part 3A community body of its confirmation under section 97P or its failure otherwise to complete the purchase after having so confirmed its intention under that section, or

(c) as a result of the failure of the Part 3A community body which made that application to complete the purchase,

is entitled to recover the amount of that loss or expense from the Part 3A community body.

(2) There is no such entitlement where the application made under section 97G is refused.

(3) Where such an application has been refused, the owner of the land who has incurred loss or expense as mentioned in subsection (1)(a) is entitled to recover the amount of that loss or expense from Ministers.

(4) Ministers may, by order, make provision for or in connection with specifying—

(a) amounts payable in respect of loss or expense incurred as mentioned in subsection (1),

(b) amounts payable in respect of loss or expense incurred by virtue of this Part by a person of such other description as may be specified,

(c) the person who is liable to pay those amounts,

(d) the procedure under which claims for compensation under this section are to be made.

(5) Where, at the expiry of such period of time as may be fixed for the purposes of this subsection by an order under subsection (4)(d), any question as to whether compensation is payable or as to the amount of any compensation payable has not been settled as between the parties, either of them may refer the question to the Lands Tribunal.

(6) Where either of the parties refers a question to the Lands Tribunal as mentioned in subsection (5), the party so referring the question must, within 7 days of the date of referring it, notify Ministers in writing of—

(a) the referral of the question, and

(b) the date of referring the question.

(7) The Lands Tribunal must send a copy of its findings on a question referred to it under subsection (5) to Ministers.

(8) Failure to comply with subsection (6) or (7) has no effect on—

(a) the Part 3A community body's right to buy the land, or

(b) the validity of the referral of the question under subsection (5).

(9) The duty in subsection (6) does not apply where the party referring the question mentioned in that subsection is Ministers.

97U Grants towards Part 3A community bodies' liabilities to pay compensation S

(1) Ministers may, in the circumstances set out in subsection (2), pay a grant to a Part 3A community body.

(2) Those circumstances are—

(a) that after settlement of its other liabilities connected with the exercise of its right to buy land under this Part, the Part 3A community body has insufficient money to pay, or to pay in full, the amount of compensation it has to pay under section 97T,

(b) that the Part 3A community body has taken all reasonable steps to obtain money in order to pay, or to pay in full, that amount (other than applying for a grant under this section) but has been unable to obtain the money, and

(c) that it is in the public interest that Ministers pay the grant.

(3) The fact that all the circumstances set out in subsection (2) are applicable in a particular case does not prevent Ministers from refusing to pay a grant in that case.

(4) A grant under this section may be made subject to conditions which may stipulate repayment in the event of breach.

(5) Ministers may pay a grant under this section only on the application of a Part 3A community body.

(6) An application for such a grant must be made in such form and in accordance with such procedure as may be prescribed.

(7) Ministers must issue their decision on an application under this section in writing accompanied by, in the case of a refusal, a statement of the reasons for it.

(8) Ministers' decision on an application under this section is final.

97V Appeals S

(1) An owner of land may appeal to the sheriff against a decision by Ministers to give consent to the exercise by a Part 3A community body of its right to buy the land.

(2) A Part 3A community body may appeal to the sheriff against a decision by Ministers not to give consent to the exercise by the Part 3A community body of its right to buy.

(3) Subsection (2) does not extend to Ministers' decision under section 97K on which of two or more applications to buy the same land is to proceed.

(4) A person who is a member of a community as defined for the purposes of section 97D in relation to a Part 3A community body may appeal to the sheriff against a decision by Ministers to consent to the exercise by the Part 3A community body of its right to buy land.

(5) A creditor in a standard security with a right to sell land may appeal to the sheriff against a decision by Ministers to give consent to the exercise by a Part 3A community body of its right to buy the land.

(6) An appeal under subsection (1), (2), (4) or (5) must be lodged within 28 days of the date on which Ministers decided to consent to the exercise of the right to buy land or refuse such consent.

(7) The sheriff in whose sheriffdom the land or any part of it is situated has jurisdiction to hear an appeal under this section.

(8) Where an appeal is made—

(a) under subsection (1) the owner must intimate that fact to—

(i) the Part 3A community body,

(ii) Ministers, and

(iii) any creditor in a standard security with a right to sell the land to which the appeal relates,

(b) under subsection (2) the Part 3A community body must intimate that fact to—

(i) the owner,

(ii) Ministers, and

(iii) any creditor in a standard security with a right to sell the land to which the appeal relates,

(c) under subsection (4) the member of the community must intimate that fact to—

(i) the Part 3A community body,

(ii) the owner,

(iii) Ministers, and

(iv) any creditor in a standard security with a right to sell the land to which the appeal relates, or

(d) under subsection (5), the creditor must intimate that fact to—

(i) the Part 3A community body,

(ii) the owner, and

(iii) Ministers.

(9) The decision of the sheriff in an appeal under this section—

(a) may require rectification of the [F290 New Register],

(b) may impose conditions upon the appellant,

(c) is final.

Textual Amendments

F290 Words in s. 97V(9)(a) substituted (27.6.2018) by Land Reform (Scotland) Act 2016 (asp 18), s. 130(1), sch. 1 para. 1(7) (with s. 128); S.S.I. 2018/138, art. 3, sch. 2

97W Appeals to Lands Tribunal: valuation S

(1) The owner of the land and the Part 3A community body which is exercising its right to buy the land may appeal to the Lands Tribunal against the valuation carried out under section 97S.

(2) An appeal under this section must state the grounds on which it is being made and must be lodged within 21 days of the date of notification under section 97S(12).

(3) In an appeal under this section, the Lands Tribunal may reassess the value of the land.

(4) The valuer whose valuation is appealed against may be a witness in the appeal proceedings.

(5) The Lands Tribunal must give reasons for its decision on an appeal under this section and must issue a written statement of these reasons—

(a) within 8 weeks of the hearing of the appeal, or

(b) where subsection (6) applies, by such later date referred to in paragraph (b)(ii) of that subsection.

(6) This subsection applies where—

(a) the Lands Tribunal considers that it is not reasonable to issue a written statement mentioned in subsection (5) by the time limit specified in paragraph (a) of that subsection, and

(b) before the expiry of that time limit, the Lands Tribunal has notified the parties to the appeal—

(i) that the Lands Tribunal is unable to issue a written statement by that time limit, and

(ii) of the date by which the Lands Tribunal will issue such a written statement.

(7) The validity of anything done under this Part is not affected by any failure of the Lands Tribunal—

(a) to comply with the time limit specified in paragraph (a) of subsection (5), or

(b) to issue a written statement by the date referred to in paragraph (b) of that subsection.

(8) Where the owner of the land or the Part 3A community body appeals under this section, the owner or, as the case may be, Part 3A community body must, within 7 days of the date on which the appeal is made, notify Ministers in writing of—

(a) the making of the appeal, and

(b) the date of the making of the appeal.

(9) The Lands Tribunal must send a copy of the written statement of reasons issued under subsection (5) to Ministers.

(10) Failure to comply with subsection (8) or (9) has no effect on—

(a) the Part 3A community body's right to buy the land, or

(b) the validity of the appeal under this section.

(11) Ministers are not competent parties to any appeal under this section by reason only that they appointed the valuer whose valuation is the subject of the appeal.

(12) Ministers' powers under the Lands Tribunal Act 1949 to make rules as respects that Tribunal extend to such rules as may be necessary or expedient to give full effect to this section.

97X Reference to Lands Tribunal of questions on applications S

(1) At any time before Ministers reach a decision on an application which has been made under section 97G—

(a) Ministers,

(b) any person who is a member of the community defined in relation to the applicant Part 3A community body in pursuance of section 97D,

(c) the owner of the land which is the subject of the application,

(d) any person who has any interest in the land giving rise to a right which is legally enforceable by that person, or

(e) any person who is invited, under section 97G(9)(a)(iv), to send views to Ministers on the application,

may refer to the Lands Tribunal any question relating to the application.

(2) In considering any question referred to it under subsection (1), the Lands Tribunal may have regard to any representations made to it by—

(a) the applicant Part 3A community body,

(b) the owner of the land which is the subject of the application, or

(c) any other person who, in the opinion of the Lands Tribunal, appears to have an interest.

(3) The Lands Tribunal—

(a) must advise Ministers of its finding on any question so referred, and

(b) may, by order, provide that Ministers may consent to the application only if they impose, under section 97L, such conditions as the Tribunal may specify.

(4) If the Lands Tribunal considers any question referred to it under this section to be irrelevant to Ministers' decision on the application to which it relates, it may decide to give no further consideration to the question and find accordingly.

(5) Where a person mentioned in any of paragraphs (b) to (e) of subsection (1) refers a question to the Lands Tribunal as mentioned in that subsection, the person so referring the question must, within 7 days of the date of referring it, notify Ministers of—

(a) the referral of the question, and

(b) the date of referring the question.

(6) Failure to comply with subsection (3)(a) or (5) has no effect on—

(a) the validity of the application under section 97G by the Part 3A community body,

(b) the Part 3A community body's right to buy the land, or

(c) the validity of the referral of the question under subsection (1).

97Y Agreement as to matters referred or appealed S

An appeal under section 97V or 97W does not prevent the parties from settling or otherwise agreeing the matter in respect of which the appeal was made between or among them.

97Z Interpretation of Part 3A S

(1) Any reference in this Part to a creditor in a standard security with a right to sell land is a reference to a creditor who has such a right under—

(a) section 20(2) or 23(2) of the Conveyancing and Feudal Reform (Scotland) Act 1970, or

(b) a warrant granted under section 24(1) of that Act.

(2) In calculating for the purposes of this Part any period of time within which an act requires to be or may be done, no account is to be taken of any public or local holidays in the place where the act is to be done.

(3) Subsection (2) does not apply to a period of time specified in section 97R(2), 97V(6), or 97W(2).]

Part 4 S General and supplementary

[F291 97Z1 Mediation S

(1) Subsection (2) applies where—

(a) a community body seeks to—

(i) register an interest in land under Part 2, or

(ii) exercise its right to buy land under that Part,

(b) a crofting community body seeks to exercise its right to buy—

(i) land under Part 3,

(ii) the interest of a tenant under section 69A, or

(iii) eligible sporting interests under section 70, or

(c) a Part 3A community body seeks to exercise its right to buy land under Part 3A.

(2) Ministers may, on being requested to do so by a person mentioned in paragraph (a), (b), (c), (d), (e), (f) or (as the case may be) (g) of subsection (3), take such steps as they consider appropriate for the purpose of arranging, or facilitating the arrangement of, mediation in relation to the proposed—

(a) registration of the interest in land under Part 2, or

(b) exercise of the right to buy the land, tenant's interest, or (as the case may be) eligible sporting interests.

(3) The persons are—

(a) the owner of the land,

(b) any creditor in a standard security over the land or any part of it with a right to sell the land or any part of it,

(c) the community body,

(d) the crofting community body,

(e) the Part 3A community body,

(f) the tenant in relation to whose interest the crofting community body seeks to exercise its right to buy,

(g) the owner of the eligible sporting interests in relation to which the crofting community body seeks to exercise its right to buy.

(4) The steps mentioned in subsection (2) include—

(a) appointing a mediator,

(b) making payments to mediators in respect of services provided,

(c) reimbursing reasonable expenses of mediators.

(5) In subsection (3)(b), the reference to a creditor in a standard security over the land or any part of it with a right to sell the land or any part of it is a reference to a creditor who has such a right under—

(a) section 20(2) or 23(2) of the Conveyancing and Feudal Reform (Scotland) Act 1970, or

(b) a warrant granted under section 24(1) of that Act.]

Textual Amendments

F291 S. 97Z1 inserted (15.4.2016 for specified purposes, 27.6.2018 ) by Community Empowerment (Scotland) Act 2015 (asp 6), ss. 75, 142(1); S.S.I. 2015/399, art. 2, sch. (with art. 3); S.S.I. 2018/139, art. 2(b)

98 General and supplementary provisions S

(1) In this Act—

• “Land Court” means the Scottish Land Court;

• “Lands Tribunal” means the Lands Tribunal for Scotland;

• “Ministers” means the Scottish Ministers;

• “prescribed” means prescribed by regulations made by Ministers.

(2) Any power of Ministers under this Act to make an order or regulations shall be exercisable by statutory instrument.

(3) Any such power includes power to make—

(a) such incidental, supplementary, consequential, saving or transitional provision as Ministers think necessary or expedient;

(b) different provision for different cases and for different classes of case.

(4) Subject to subsection (5) below, a statutory instrument containing an order (other than an order made under section 100 below) or regulations made under this Act shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.

(5) A statutory instrument containing an order made under section 4, 8, F292 ...[F293 35(4),] 36, 42, [F294 72(4), 78, 94 or 97E(4)] above [F295 or regulations made under section 34(A1)(b), (4A) or (4B), 38(2B), 71(A1)(b), (4A) or (4B), 97C(4), (5) or (6), 97D(1)(b), (7) or (8), 97F(9), 97H(6) or 97N(1) or (3) above] shall not be made unless a draft of the instrument has been laid before, and approved by a resolution of, the Scottish Parliament.

[F296 (5A) In making a decision under section 38(1), 44(3), 51(1)(b), 73(2) or 97G(2), Ministers are to have regard to the International Covenant on Economic, Social and Cultural Rights adopted and opened for signature, ratification and accession by General Assembly resolution 2200A ( XXI ) of 16 December 1966 subject to—

(a) any amendments in force in relation to the United Kingdom for the time being, and

(b) any reservations, objections or interpretative declarations by the United Kingdom for the time being in force.]

(6) Any requirement or other provision in this Act for or about the sending or making of any application, invitation, response, confirmation, notice or other document, or any copy of such a document, shall be taken to have been complied with if the document was posted by recorded delivery post or such other postal service as is referred to in paragraph 3 of Schedule 8 to the Postal Services Act 2000 (c. 26).

(7) Subject to subsection (8) below, the effective date of any application, invitation, response, confirmation, notice or other such document sent by such post shall be—

(a) the day after the date it was posted; or

(b) where any period in this Act is to be calculated from or with reference to the date of making or sending the application, invitation, response, confirmation, notice or document, that date.

(8) Nothing in subsection (7) above affects the requirements in sections 37(9), 49(4)[F297 , 52(3), 97G(7) and (9) and 97J(4)] above by which the responses there referred to are to be received by Ministers within a certain time.

Textual Amendments

F292 Word in s. 98(5) repealed (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), s. 142(1), Sch. 5; S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F293 Word in s. 98(5) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), s. 142(1), Sch. 4 para. 8(6)(a)(i); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F294 Words in s. 98(5) substituted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), s. 142(1), Sch. 4 para. 8(6)(a)(ii); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F295 Words in s. 98(5) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), s. 142(1), Sch. 4 para. 8(6)(a)(iii); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F296 S. 98(5A) inserted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), s. 142(1), Sch. 4 para. 8(6)(b); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

F297 Words in s. 98(8) substituted (15.4.2016) by Community Empowerment (Scotland) Act 2015 (asp 6), s. 142(1), Sch. 4 para. 8(6)(c); S.S.I. 2015/399, art. 2, Sch. (with art. 3)

99 Amendments, repeals and savings S

The enactments specified in schedule 2 to this Act have effect subject to the modifications there specified and the repeals there specified have effect subject to the savings there specified.

Commencement Information

I1 S. 99 partly in force; s. 99 not in force at Royal Assent see s. 100(3); s. 99 in force for certain purposes at 14.6.2004 by S.S.I. 2004/247, art. 2(a)

100 Short title, Crown application and commencement S

(1) This Act may be cited as the Land Reform (Scotland) Act 2003.

(2) This Act binds the Crown.

(3) This Act (except this section and section 98 above) comes into force on such day as Ministers may by order appoint.

(4) Different days may be so appointed for different purposes.

Subordinate Legislation Made

P1 S. 100(3) partly exercised; 30.9.2003 appointed for specified provisions by S.S.I. 2003/427, art. 2

P2 S. 100(3) partly exercised; 14.6.2004 appointed for specified provisions and purposes by S.S.I. 2004/247, art. 2

SCHEDULE 1 S Path orders

(introduced by section 22(8))

Procedure S

Procedure S

1 Before making a path order, the local authority shall give notice of their intention to do so, together with a copy of the proposed order, to the owner of the land within which is the path proposed for delineation by the order (the “owner”).

2 S That notice shall specify—

(a) a time, being not later than 28 days after the giving of the notice, within which; and

(b) the manner in which,

objections to the proposed order may be made by the owner to the local authority.

3 S If no such objections are made or any made are withdrawn, and the local authority make the order, it shall have effect.

4 S If, however, an objection is made and not withdrawn, the order if made shall not have effect unless confirmed by Ministers.

5 S Ministers—

(a) may; and

(b) if any objection made is not withdrawn, shall,

afford the owner an opportunity of being heard by a person appointed by Ministers for the purpose.

6 S Ministers shall, after considering the report of that person, either confirm or decline to confirm the order and, where they confirm it, may do so with modifications.

7 S On its confirmation, the path order shall have effect.

8 S As soon as a path order has effect, the local authority shall give notice of that fact to the owner together with a copy of the order.

Statutory undertakings S

Statutory undertakings S

9 No path order shall be made which would delineate a path over land in or over which there is apparatus belonging to or used by any statutory undertaker for the purpose of the undertaking unless the undertaker has consented to the making of the order.

10 S Such consent shall not be unreasonably withheld and any question whether it is so withheld shall be determined by Ministers.

11 S The operator of any [F298 electronic communications code network] for the purposes of which apparatus was kept installed in, under or over a path immediately before the path creation order which delineated the path was revoked retains after that revocation the same powers as before it; but the owner is entitled to require the alteration of the apparatus.

Textual Amendments

F298 Words in Sch. 1 para. 11 substituted (17.9.2003) by The Communications Act 2003 (Consequential Amendments) Order 2003 (S.I. 2003/2155), art. 3(1), Sch. 1 para. 15(3)(a)

12 S [F299 Paragraph [F300 108(2)] of Schedule 3A to the Communications Act 2003 (the electronic communications code)] (alteration of apparatus to include moving, removal or replacement of apparatus) applies for the purposes of paragraph 11 above as it applies for the purposes of the code.

Textual Amendments

F299 Words in sch. 1 para. 12 substituted (28.12.2017) by Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 3 para. 49(2); S.I. 2017/1286, reg. 2(d)

F300 Word in sch. 1 para. 12 substituted (coming into force in accordance with reg. 1(2) of the amending S.I.) by The Communications Act 2003 and the Digital Economy Act 2017 (Consequential Amendments to Primary Legislation) Regulations 2017 (S.I. 2017/1285), reg. 1(1), Sch. 1 para. 9(2)

13 S [F301 Part 6 of the electronic communications code (rights to require removal of apparatus)] applies in relation to any entitlement conferred by paragraphs 11 and 12 above to require the alteration, moving or replacement of any [F302 electronic communications apparatus] as it applies in relation to an entitlement to require the removal of any such apparatus.

Textual Amendments

F301 Words in sch. 1 para. 13 substituted (28.12.2017) by Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 3 para. 49(3); S.I. 2017/1286, reg. 2(d)

F302 Words in sch. 1 para. 13 substituted (17.9.2003) by The Communications Act 2003 (Consequential Amendments) Order 2003 (S.I. 2003/2155), art. 3(1), Sch. 1 para. 15(3)(c)

SCHEDULE 2 S Amendment and repeal of enactments

(introduced by section 99)

Trespass (Scotland) Act 1865 (c. 56) S

1 S Section 3 (which creates the offence of occupying or camping on land without the consent of its owner or occupier) of the Trespass (Scotland) Act 1865 is renumbered as subsection (1) of that section and after that subsection there is added—

“(2) Subsection (1) above does not extend to anything done by a person in the exercise of the access rights created by the Land Reform (Scotland) Act 2003 (asp 2).”

Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 (c. 42) S

2 S In section 1(1) of the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947, after paragraph (d) there is inserted—

“(e) by the Scottish Ministers under section 35 or 72 of the Land Reform (Scotland) Act 2003 (asp 2);”.

Countryside (Scotland) Act 1967 (c. 86) S

Countryside (Scotland) Act 1967 (c. 86) S

3 The Countryside (Scotland) Act 1967 is amended as follows.

4 S Subject to paragraphs 6 and 7 below, the following provisions—

(a) Part II (access to open country);

(b) sections 30 to 38 (creation, closure and diversion of public paths);

(c) section 43 (ploughing of rights of way);

(d) in section 54 (byelaws), in subsection (6), the words “or the next and succeeding section”;

(e) section 55 (default powers); and

(f) in Schedule 3 (which includes provision for making and confirming access orders under Part II), in sub-paragraph (1) of paragraph 1, the words “an access order”, in sub-paragraph (3) of that paragraph the words “an access order or” and in sub-paragraph (1A) of paragraph 2, the words from “as” to “order”, where thirdly occurring,

are repealed.

5 S In section 47 (interpretation of Part III which deals with paths, routes and rights of way) there is inserted at the end “and references to a right of way do not include references to access rights within the meaning of section 1 of the Land Reform (Scotland) Act 2003 (asp 2)”.

6 S The coming into force of the repeal of Part II does not—

(a) prevent compensation thereafter being claimed or becoming payable under section 21 of the Act (compensation for depreciation or disturbance as a result of access order to be assessed only after five years' operation of order); or

(b) otherwise affect the operation thereafter of sections 21 to 23 and 70 of that Act in relation to claims for or payment of compensation.

7 S Notwithstanding the repeal of section 30 to 38, those sections continue to have effect—

(a) to the extent that the rights and facilities afforded to the public under those sections are not secured by section 1 above;

(b) in relation to land in respect of which access rights are, under section 6 above, not exercisable; and

(c) in relation to rights of way.

Civic Government (Scotland) 1982 (c. 45) S

8 S The Civic Government (Scotland) Act 1982 is amended as follows—

(a) in section 120 (savings for Crown and other rights), the words from “and, with respect” to the end are repealed;

(b) in section 121 (control of the seashore, adjacent waters and inland waters)—

(i) subsection (4); and

(ii) in subsection (5), paragraph (iii),

are repealed;

(c) in section 121, in subsection (11), for the words from “adjacent” to the end there is substituted “and adjacent waters.”; and

(d) in section 123 (interpretation), the words from “ “inland waters”” to “banks thereof;” are repealed.

Public Order Act 1986 (c. 64) S

9 S In section 14A (prohibiting trespassory assemblies) of the Public Order Act 1986, after subsection (9) there is inserted—

“(9A) In relation to Scotland, the references in this section to the public’s rights (or limited right) of access do not include any right which the public or any member of the public may have by way of access rights within the meaning of the Land Reform (Scotland) Act 2003 (asp 2).”.

Criminal Justice and Public Order Act 1994 (c. 33) S

Criminal Justice and Public Order Act 1994 (c. 33) S

10 The Criminal Justice and Public Order Act 1994 is amended as follows.

11 S After section 61(4) (circumstances in which persons who, although not originally trespassers on land, have become such may be directed by police to leave) there is inserted—

“(4A) Where, as respects Scotland, the reason why these persons have become trespassers is that they have ceased to be entitled to exercise access rights by virtue of—

(a) their having formed the common purpose mentioned in subsection (1) above; or

(b) one or more of the conditions specified in paragraphs (a) and (b) of that subsection having been satisfied,

the circumstances constituting that reason shall be treated, for the purposes of subsection (4) above, as having also occurred after these persons became trespassers.

(4B) In subsection (4A) above “access rights” has the meaning given by the Land Reform (Scotland) Act 2003 (asp 2).”.

12 S In section 64 (which, amongst other things, confers powers on the police to seize and remove sound equipment brought or brought back on to land after a removal direction under section 63) there is inserted after subsection (5)—

“(5A) Entering land in Scotland with sound equipment in the circumstances mentioned in subsection (4)(b) above is not an exercise of access rights within the meaning of the Land Reform (Scotland) Act 2003 (asp 2).”.

13 S In section 68 (offence of aggravated trespass) after subsection (1) there is inserted—

“(1A) The reference in subsection (1) above to trespassing includes, in Scotland, the exercise of access rights (within the meaning of the Land Reform (Scotland) Act 2003 (asp 2)) up to the point when they cease to be exercisable by virtue of the commission of the offence under that subsection.”.

The Conservation (Natural Habitats, Etc.) Regulations 1994 (S.I. 1994/2716) S

The Conservation (Natural Habitats, Etc.) Regulations 1994 (S.I. 1994/2716) S

14 The Conservation (Natural Habitats, Etc.) Regulations 1994 are amended as follows.

F303 15 S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F303 Sch. 2 para. 15 repealed (16.8.2012) by The Conservation (Natural Habitats, &c.) Amendment (Scotland) Regulations 2012 (S.S.I. 2012/228), reg. 1(1), Sch.

16 S After regulation 69 there is inserted—

“69A Core and other paths

(1) Regulations 48 and 49 (requirement to consider effect on European site) apply in relation to a local authority’s proposal—

(a) to draw up or change a plan for core paths under section 17 of the Land Reform (Scotland) Act 2003 (asp 2);

(b) to enter a path agreement under section 21 of that Act;

(c) to create or maintain a path delineated under such an agreement;

(d) as to how any such path is to be created or maintained;

(e) to make a path order under section 22 of that Act;

(f) as to how any path delineated under such an order is to be created or maintained.

(2) Regulations 50 and 51 (requirement to review certain decisions) apply to any decision by a local authority in relation to any of the things mentioned in paragraph (1).”.

Town and Country Planning (Scotland) Act 1997 (c. 8) S

17 S After subsection (3) of section 208 of the Town and Country Planning (Scotland) Act 1997 there is inserted—

“(4) This section applies in relation to any land which is a core path (within the meaning of Part 1 of the Land Reform (Scotland) Act 2003 (asp 2)) as it applies in relation to footpaths and bridleways.”.