Commentary on Sections Applications for consent Section 56 – Right to buy: Ministers’ decision on application
252.Subsection (1) sets out that Ministers must not consent to an application to buy land under section 54 unless they are satisfied that application meets the sustainable development conditions and the procedural requirements have been complied with.
253.Subsection (2) sets out the sustainable development conditions. All conditions must be met for Ministers to consent to an application. These conditions are that the transfer of land is likely to further the achievement of sustainable development in relation to the land, that the transfer is in the public interest, that the transfer of land is likely to result in significant benefit to the community and is the only practicable, or most practicable, way of achieving that benefit, and that not granting consent to the transfer is likely to result in harm to the community in question.
254.Subsection (3) sets out the procedural requirements. These include that the community body has, at least six months prior to the application being made, submitted a written request to the owner of the land to transfer the land to the community body or person named in the application and the owner has not responded or agreed to the request. They also include a requirement that land is eligible land, the owner and any creditor in standard security is correctly identified, where a third party purchaser is nominated that the party is correctly identified and shown to consent to the application and that the owner is not prevented from selling the land or subject to any enforceable personal obligation (otherwise than an obligation which has been suspended by regulations made under section 61(3)) to sell the land to anyone other than the Part 5 community body or the third party purchaser. If a significant number of the members of the community have a connection with the land, that the land is sufficiently near to land with which those members of the community have a connection or that the land is in or sufficiently near to the area comprising that community. The community must have approved the exercise of the right to buy and Part 5 community body must comply with the provisions of section 49.
255.Subsection (4) provides that in determining whether an application to buy land meets the sustainable development conditions mentioned in subsection (2), the Scottish Ministers may take into account the extent to which, in relation to the relevant community (as defined in subsection (11), that is, by reference to a postcode unit or units or a type of area that Ministers may specify by regulations, regard has been had to guidance issued under section 44 (the Part 4 Guidance on Engaging Communities in Decisions Relating to Land).
256.Subsection (5) provides that, where an application relates to land which consists of salmon fishings or mineral rights only, Ministers must in addition be satisfied that the application complies with the requirements of section 47. That section contains provision requiring the Part 5 community body or third party purchaser to have already purchased the land, under Part 5, which the salmon fishings or mineral rights relate to, or to be in the process of applying to buy that land under Part 5.
257.Subsection (6 sets out that, where an application includes a request to buy a tenant’s interest, the Scottish Ministers must be satisfied that the sustainable development conditions under subsection (2) are met in respect of the tenant’s interest, and that the procedural requirements set out in subsection (7) have also been complied with.
258.Subsection (7) sets out the procedural requirements that must be complied with in respect of an application to buy a tenant’s interest. These require that, at least six months prior to making the application, the Part 5 community body has submitted a written request to the tenant to transfer the tenant’s interest to the community body or person named in the application. They also require that the tenant, owner and any creditor in standard security is correctly identified, where a third party purchaser is nominated, that the party is correctly identified and is shown to consent to the application and that the application complies with the requirements of section 48. The requirements also include that a significant number of the members of the community have a connection with the land, that the land is sufficiently near to land with which those members of the community have a connection or that the land is in or sufficiently near to the area comprising that community. Also, the community must have approved the exercise of the right to buy and the Part 5 community body must comply with the provisions of section 49.
259.Subsection 8) provides that in considering whether the application to buy a tenant’s interest meets the sustainable development criteria, the Scottish Ministers must take into account any related application under section 54 to buy land to which the tenancy relates, and may take into account the extent to which, with regard to the relevant community (as defined in subsection (11) that is, by reference to a postcode unit or units or a type of area that Ministers may specify by regulations), regard has been had to guidance issued under section 44 (the Part 4 Guidance on Engaging Communities in Decisions Relating to Land).
260.Subsection (9) states that the Scottish Ministers may by regulations make provision about the form and content of requests referred to in subsections (3)(a) and (7)(a) of section 56, the form and content of responses to requests referred to in subsection (3)(a) and the circumstances in which landowners are to be taken not to have responded or not to have agreed to requests referred to in subsection (3)(a).
261.Subsection (10) requires that in determining for the purposes of subsection (2)(b) whether a transfer of land or tenant’s interest is in the public interest, the Scottish Ministers must take into account any information given under section 55(2)(a), that is, the owner’s or tenant’s views on the likely impact on the owner or tenant of the proposals, and they must also consider the likely effect of granting or not granting the consent to the transfer on land use in Scotland generally.
262.Subsection (11) defines “relevant community” for the purposes of sections (2)(c)(i), (3)(g)(i), (4), (7)(g)(i) and (8)(b).
263.Subsection (12) provides that, in determining what constitutes significant benefit to the community for the purposes of subsection (2)(c) or harm to a community for the purpose of subsection (2)(d), the Scottish Ministers must consider the likely effect of granting or refusing consent to the transfer of land or tenant’s interest on the lives of the persons comprising that community, including the likely effect on economic development, regeneration, public health, social wellbeing and environmental wellbeing.
264.Subsection (13) provides that in considering a decision under section 56 on an application under section 54, the Scottish Ministers must have regard to relevant non-Convention human rights and the desirability of encouraging equal opportunities within the meaning of Section L2 of Part 2 of schedule 5 of the Scotland Act 1998. Convention rights are excluded from this definition as the Scottish Ministers are already required to act compatibly with the Convention by virtue of section 57(2) of the Scotland Act 1998.
265.Subsection (14) defines relevant non-Convention human rights as meaning such human rights, other than Convention rights, as the Scottish Ministers consider to be relevant, and which are contained in any international convention, treaty or other international instrument ratified by the United Kingdom, including 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 any amendment in force in relation to the United Kingdom for the time being, and any reservations, objections or interpretative declarations by the United Kingdom for the time being in force.