Derailing a registered community interest
Right-to-buy legislation was introduced in Scotland in 2003 – and ever since, communities across Scotland have sought to snap up playgrounds, old cinemas, and anything else they consider might pose a threat to their traditional way of life if sold into (what they believe to be) the wrong hands.
The background
The legislation (the Land Reform (Scotland) Act 2003) allows a community body to register a “Community Interest” in property in various parts of Scotland – even before it is put up for sale.
Once the Community Interest is registered, the community body has a right to buy the property if the owner transfers or takes any action with a view to transferring the property.
However certain criteria have to be met before a community body can register a Community Interest.
Firstly, the property has to be what the legislation calls “registerable land” – essentially, any property which is not part of a settlement of more than 10,000 people. To avoid the public having to number crunch their way through the latest census, the legislation includes a set of plans which show clearly those parts of Scotland which are not “registerable land”.
Secondly, either:-
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a significant part of the community must have a substantial connection with the property in question, or
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the property in question must be sufficiently close to property which the community do have a substantial connection with, and the acquisition of the land in question by the community body must be compatible with furthering the achievement of sustainable development.
There are also detailed provisions in the legislation which a community body must follow when applying to register a Community Interest. The Scottish Ministers must also comply with certain obligations before they decide to register a community interest.
But registration isn’t always the end of the story
If the process by which a Community Interest has been registered was flawed, then the Community Interest may be deemed incompetent – and cancelled.
And what might seem like a mere technicality can end up derailing the entire registration of a Community Interest.
The importance of getting the application and registration process spot-on was highlighted in a recent court case, Mrs Jacqueline Francis Hazle v the Lord Advocate and the Scottish Ministers (2009).
In that case, the court decided that:-
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the applications involved were incompetent, because no grid references had been included on the plans attached to them (as required by the legislation); and
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the Scottish Ministers had also (in various ways) failed to comply with their obligations,
and therefore the Community Interests were to be removed from the register.
For example, in the Hazle case, one of the community body’s proposals was to develop an area by planting indigenous species of trees and shrubs to attract red squirrels and badgers.
However there was already a healthy population of grey squirrels on the land, and the landowner argued during the application process that red and grey squirrels cannot live side by side in the long term.
The court said the Scottish Ministers had to deal with this issue and decide whether it is feasible to introduce red squirrels into an area that not only has no red squirrels, but is already populated by grey squirrels.
So the court decided that the Scottish Ministers had acted unreasonably by not taking the landowner’s evidence into account, saying:-
“It would have been open to the ministers to reject that evidence if they had a basis for doing so but they could not simply ignore it.”
The moral of the story
If you own Scottish land, and the local community are trying to register a Community Interest against it, you may well feel that your land is about to be “blighted”.
But you don’t necessarily have to just throw in the towel – even if the Community Interest is registered.
It can be useful to check whether or not the applicant community body and the Scottish Ministers have complied with the relevant statutory requirements – as failure to comply (even with what might seem like a technicality) may render the registered Community Interest incompetent and subject to removal.
For further information please contact: Roland Smyth