Rural Affairs and Environment Committee,

Meeting date: Wednesday, May 13, 2009

Official Report 119KB pdf

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Subordinate Legislation

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Community Right to Buy (Definition of Excluded Land) (Scotland) Order 2009 (Draft)

Agenda item 2 is consideration of an affirmative instrument. I welcome the Minister for Environment and her officials: Heather Holmes, the head of the Scottish Government's community assets branch; and David Brew, the head of the rural communities division.

The Subordinate Legislation Committee has not made any comments on the draft order. Under item 2, members can ask questions about the content of the draft order before we move to the formal debate under item 3. Officials can contribute during item 2, but they cannot participate in the formal debate. I invite the minister to make a brief opening statement.

Thank you, convener, and good morning, everyone. The draft Community Right to Buy (Definition of Excluded Land) (Scotland) Order 2009 is relatively straightforward, and I welcome the opportunity to take a couple of minutes to contribute to the committee's consideration of it.

The draft order is made under part 2 of the Land Reform (Scotland) Act 2003, which is the part that allows community bodies to register an interest in eligible land and to buy it when it comes up for sale. I should explain briefly why the draft order is required. It is obviously a crucial part of the community right-to-buy legislation, as it designates land in rural Scotland that is capable of being registered and therefore of being brought under the community right-to-buy provisions of part 2 of the 2003 act.

The 2003 act designates such land by listing all settlements above a population threshold of 10,000 and excluding them from the scope of the community right to buy. The threshold is a policy decision, not a statutory requirement, and those members who were in the Scottish Parliament when the Land Reform (Scotland) Bill was being discussed will remember that, originally, when it was introduced, the population threshold was held at 3,000. The decision was then taken to extend the threshold to 10,000.

When the then minister, Allan Wilson, introduced the first such order under the legislation, he indicated to the Justice 1 Committee that it would be updated regularly to reflect changes over time to settlement boundaries and population statistics. The draft order is the third definition of excluded land order to have been made under the 2003 act.

The draft order updates the information in the existing 2006 order, which Parliament previously approved; it does not involve any change in policy or approach. The effect of Parliament approving the draft order will be that land in one new settlement—Armadale in West Lothian—will become excluded from the right-to-buy regime because its population is now above the 10,000 threshold that we use to distinguish urban Scotland from rural Scotland. That will bring the total of excluded settlements in Scotland to 56.

In addition, the General Register Office for Scotland has made changes to existing settlement boundaries and renamed four settlement areas. Bathgate is now Blackburn and Bathgate; Bonnybridge is now Bonnybridge and Banknock; Falkirk is now Falkirk and Hallglen; and Whitburn is now Whitburn and East Whitburn.

The draft order continues to provide for designated maps, which are available through a newly developed rural communities mapping tool on the Scottish Government website. I have with me an example of what can be seen on the website; members will find it very exciting. Hard copies of the maps can be consulted at the offices of the Scottish Government's rural community division at Pentland house—don't all rush at once. That is something physical that people can go and look at if they want. Hard copies of the maps are also available at the Government's library at Saughton house.

We have dispensed with placing hard copies of the maps in our agricultural area offices because the mapping tool, which will also allow community bodies easy access to postcode details to define their communities, will be more accessible and easier to consult.

That is the background to the draft order. The process is relatively straightforward and will always come about the minute that a new population designation is made for a community—obviously, communities grow or otherwise over the years.

We are here to answer any questions.

Thank you. I invite questions from members. Questions should relate to the affirmative instrument that we are discussing, and not to the negative instruments that follow under item 4. The minister cannot comment on the negative instruments because the agenda has not detailed her to be present for them. We will therefore stick to the affirmative instrument for the moment.

As there do not seem to be any questions, we move to the formal debate. I remind members that officials cannot participate in the debate. I invite the minister to move the motion.

Thank you, convener. For the reasons that I have already given, I invite the committee to recommend that the draft order be approved.

I move,

That the Rural Affairs and Environment Committee recommends that the draft Community Right to Buy (Definition of Excluded Land) (Scotland) Order 2009 be approved.

Motion agreed to.

I thank the minister and her officials for their attendance. The minister will leave now, but the officials will remain at the table for the next item.

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Community Right to Buy (Prescribed Form of Application and Notices) (Scotland) Regulations 2009 (SSI 2009/156)<br />Crofting Community Body (Prescribed Form of Application and Notice) (Scotland) Regulations 2009 (SSI 2009/160)

The Government officials are in attendance for this item to answer questions of clarification from members on the negative instruments. The Subordinate Legislation Committee had no comments to make on either instrument. I invite the officials to make brief opening remarks on the purpose of the instruments.

The Community Right to Buy (Prescribed Form of Application and Notices) (Scotland) Regulations 2009 are made under part 2 of the Land Reform (Scotland) Act 2003, which allows community bodies to register an interest in eligible land and gives them a pre-emptive right to buy that land when it comes up for sale.

We want to revise the existing regulations, which are from 2004, for three purposes. First, we want to prescribe a new form of application for applications by a community body to register an interest in land and to provide a number of notices that are required for the administration of applications under part 2 of the 2003 act. Secondly, we want to provide a form of application to enable a community body to re-register its community interest in land. As members are aware, registrations of interest in land extend for five years from the date on which ministers approve them. At the moment, no form of application is available to allow a community body to re-register its interest in land. The regulations also enable the same application to be used for both registration and re-registration, because both involve the same processes and stages and the same information has to be considered by ministers. Thirdly, we aim to clarify certain questions on the existing application form that applicants have had difficulty understanding, to make matters easier for them.

The Crofting Community Body (Prescribed Form of Application and Notice) (Scotland) Regulations 2009 are made under part 3 of the Land Reform (Scotland) Act 2003, which allows crofting communities to acquire eligible croft land associated with a crofting community and its sporting rights, and to acquire the interest of a tenant in tenanted land; the power relates to interposed leases. We are revising the regulations to provide the form of application for applications by a crofting community body to seek consent from ministers to acquire the interest of a tenant in tenanted land. Currently no form is available to achieve that. We have reorganised the questions in the existing application form relating to the acquisition of eligible croft land so that they are in a more logical order. We have also made a number of changes to the application form to clarify certain questions.

Quite late in the day, I have received a couple of e-mails—they may have been sent to other committee members as well—raising concerns about re-registration under the community right to buy. One of the e-mails says:

"It appears from the papers that the new regulations will require a community body to repeat the whole process of registration that they were required to undertake in the first instance of registering interest in a piece of land. There has already been much criticism of the original registration process in that it is extremely bureaucratic, time consuming and complicated. However, it was always the understanding that the process of re-registering interest after five years had elapsed would be ‘light touch' in nature."

From what you say, it sounds as though you have attempted to address the bureaucracy of the initial registration process. Can you confirm that, after five years, a community will have to go through the entire process again, or are you proposing a lighter-touch process?

We are obviously keen to adopt as light a touch as possible to applications for re-registration. In a moment, I will invite Heather Holmes to explain how we propose to help communities to undertake the re-registration process.

We are, however, bound by the Land Reform (Scotland) Act 2003, section 37 of which requires community bodies to go through the whole process of registration and requires ministers in effect to take a new decision on the registration. Therefore, not only do communities need to ballot their members, we also need to communicate their applications to the landowners in order that we can take receipt of comments on those applications from the landowners and process a ministerial decision on renewal of the registration of the land in question. Our experience so far suggests that getting that process right at the outset will make it much less likely that the registrations of land will be contested subsequently. That is why the form is set out as it is. We have no discretion as to the information that the 2003 act requires us to receive in order to process the application.

You are saying that, if a community has registered an interest in land, the registration will lapse after five years, and that that is in the primary legislation.

Yes. I invite Heather Holmes to explain how we propose to pre-populate the application forms using the information that we already have, so that we can give communities that information about the land in which they have registered an interest and they do not have to fill in the whole form themselves.

We have looked at the whole process and what information the community bodies are required to provide to ministers, and we have considered how we can make it as easy as possible for them. We are using the same application form with the same questions, so community bodies will be aware of the questions that they are required to answer. We propose to write to community bodies a year before their registration is due to expire, letting them know about the re-registration process and the timescales that are involved—a community body cannot submit an application for re-registration more than six months before its registration expires. If a community body informs us that it is interested in re-registering, we will provide it with a copy of its previous application form, complete with all the documentation that it submitted to us. We will also provide it with an electronic copy of the new application form with the section for the description of the land pre-populated. It will be up to the community body to consider for itself whether its original application is still valid, whether its proposals remain the same as those of five years previously and whether it wants to go through the re-registration process.

As David Brew said, the 2003 act sets out certain requirements on the community body, including the need for it to receive community support. As members will be aware, a lot of things can happen in five years. In the process, we need to consider that there will be some communities in which many things have happened and other communities in which things have not changed. In communities where there have been no changes, the community body should find it a simple process to fill in the application form because, if it is so minded, the community body will be able just to copy the information from the original registration sheet, update that information and then put it into the re-registration sheet.

Am I correct in picking you up as saying that the initial registration process has been reviewed? Obviously, we have received criticisms about the bureaucracy that was involved in the first registration process. Has that been addressed?

We have tried to revamp the form to make it more logical and easier to complete. However, we have found that we need to ensure that certain aspects of the legislation are appropriately followed to ensure that we cannot be subject to legal challenge. We recently lost a case in the sheriff court on the basis that the maps that we received did not include the appropriate Ordnance Survey references, although everyone was perfectly well aware of where the area was that was being registered. While being as helpful as possible to communities, we must nonetheless be legally precise to ensure that the process is not subject to legal challenge.

I will follow up Elaine Murray's points and open up some other issues, but let me first say that I can see what is trying to be achieved and, at one level, I agree that it is fine to try to streamline the bureaucracy. When will the first registration lapse? By what point will it be necessary to have triggered the re-registration process? Must that happen within a year from now or within two years from now?

The first expiry will happen on 30 April 2010. The relevant community body will be able to apply for re-registration as of the end of October.

Given the desire to give community bodies a year's notice, the urgency of introducing the regulations at this point is simply to ensure that we provide just short of a year's notice for the first registration that will lapse. Is that why the regulations have been laid before the Parliament now, or could they be laid in six weeks' time or whenever?

The regulations have been laid now to give time to air the issue and to make the re-registration process more widely known. We are bound by the first expiry date, so we need to ensure that a re-registration form is available at that time. We want to be as helpful as possible to community bodies by making them aware of what they are required to do. As members will be aware, some community bodies can process the information very quickly whereas others take a lot longer.

I accept what you are trying to achieve. I am just trying to establish that there is no legal requirement for the regulations to be laid before the Parliament just now. Is there such a requirement?

No.

Given your comments about what is required under the 2003 act, will it be possible for a community body to meet the terms of the act simply by reconfirming in the new format everything that it put on the original application form, or will a new ballot have to be held?

A new ballot will certainly be required, in any event. However, in theory, it would be possible to have a different form in which a community body simply confirmed the accuracy of the information contained in the earlier form. We have undertaken a risk assessment of whether such a move makes sense and one of the things that will cause us to reject an application immediately is if a standard security has been granted over the land since registration. If a community fails to note that standard security, we are obliged to reject the application out of hand.

Similarly, what the community has said about the use of the land might well have been affected by events such as the granting of planning permission or by any other changes in the previous four years. When we receive the application, even if it only confirms the information on the previous form, we will notify the landowner, who can contest any information that, over time, might have become inaccurate. We are particularly keen that any applications that we put through are not rejected on grounds that are not substantive or as a result of oversights caused by rubber-stamping a four or five-year-old application, simply because that was easier to do.

You said that one of your objectives is to raise the profile of this issue; well, you have certainly achieved that with a number of people. However, part of the reason why many people have written to us might well relate to your decision, indicated in paragraph 8 of the Executive note, not to carry out any further consultation on the matter as it does not raise any policy issues. I wonder whether, in this case, there a fine line between policy and administrative issues, because people certainly seem to have raised a number of administrative matters. Would it not be worth talking to some of the people who are most actively engaged in the process to see whether what you are seeking to do can be streamlined further?

We are certainly happy to talk to the groups involved in the process and will provide each of the community bodies with what will in effect be an individual hand-holding service as the requirement to complete formalities arises.

We did not engage in a formal consultation process because we thought that it might raise questions about whether compliance with all the procedures that are set out in section 37 was required and that people might think that we were consulting on the policy underlying the legislation rather than on the nature of the information required. In any event, all of this information is required; it is simply a matter of the form in which it is supplied. It would certainly be feasible to consult on the nature of the form. However, we have been completely rewriting the guidance on completing the forms and were planning to publish the new forms, the new guidance and the order considered earlier at the same time as a means of explaining to community groups how they should go about the process. In other words, we were putting together a package deal that would be explained to communities towards the end of June, when the different instruments would come into effect and when we would be able to publish the rewritten guidance.

I appreciate the difficulty of managing expectations, but it is clear that expectations had been raised in the guidance to part 2 of the 2003 act, which refers to the requirement to complete the renewal of registration application. It says:

"To simplify this process, you should highlight any changes clearly on the renewal form. Ministers will then consider whether your application continues to meet the criteria set out in section 38".

It would now appear that the renewal of registration form does not exist, because the Scottish Government's website says:

"The re-registration process is the same as the registration process."

The Executive note that accompanies the SSI states:

"As these Regulations enable the continuance of registrations which would otherwise expire after five years, and do not impose any new requirements on community bodies in addition to those which are required for registration, it is not considered necessary to undertake a further consultation exercise."

I appreciate that you have brought forward the SSIs at this stage to air and make more widely known what is involved in the registration process, but it strikes me that it might have been better to engage in a limited consultation with interested parties ahead of time, as there was an expectation that renewal of registration would involve a simple process of revalidating existing information.

I have a couple of points to make. First, the requirement to highlight changes relates, as I understand it, to the memorandum and articles of the community body, not to the original application. Secondly, as I said, we are engaged in a wholesale rewriting of the guidance. The new guidance will be published in June. We thought that it would be helpful, from the point of view of not confusing the picture any further, to provide for a single form rather than two separate forms—a registration form and a re-registration form—as the information that is required to process applications, which is laid down in section 37 of the 2003 act, is identical in both circumstances. It seems to me that we have no choice about the nature of the information that we require to process applications and to ensure that they are legally watertight when ministers approve them.

However, I accept that we could have gone about the process differently in that we could have consulted on a revised form for the re-registration process. In principle, it is still feasible for us to do that, but given that we would require all that information to be obtained, I have difficulty in foreseeing what value would be added by consulting on a draft in advance of publication. We could take account of any views that are expressed to us about the new guidance and the new approach and bring forward changes if any are thought to be required, but I fear that community bodies might be under a misapprehension about the extent to which we can proceed on the basis of duplication of their original application.

I appreciate that you may have difficulty foreseeing how else to achieve your objective, but it would not be the first time that, when there was already a clear view of what appeared, at that stage, to be the only means of achieving the objective, a consultation had been embarked on that ended up unearthing one or two other options. There is confusion, because there was an expectation that a means of making an application to renew a registration, as distinct from a means of making an application for a registration, would be forthcoming, and that it would be light touch. I appreciate that you are adopting as light a touch as possible, but there is still a need to bottom out some of the issues that individual committee members heard before this morning's meeting. Some of those concerns were aired on the off-chance that the papers for this meeting would be made available. People lit on the fact that this order would be considered this week.

We are in the fortunate position of being able to pause for breath. If there are opportunities to bottom out some of the issues, it would be a useful exercise, even at this stage—especially given what your colleague Heather Holmes has said about the timeframes by which the first applications need to be made.

Do you have any suggestions about who should be consulted about the process of re-registration?

I have one or two names.

As I have said, we will make progress on the process that an individual community body will have to go through. Some 100 registration processes have been gone through since the Land Reform (Scotland) Act 2003 came into force. We are attempting to take each of the community bodies through a process that provides us with the information that we need. The fact that the forms are set out in a statutory instrument is a means of complying with the legislation and achieving our objective. It seems to me important to try to tailor the approach to the needs of the individual community groups that are first in line. I will be perfectly happy to undertake to do that.

But I—

I think that we can wait until later to discuss who we suggest might be consulted.

I am struggling a little. We are sometimes accused of overconsulting. Given that the information is all required, how can we consult on the design of a form?

We would say, "Here is the form; this is the draft negative statutory instrument setting out the form; and here are the details that we require to process your application. Do you have any comments on the phraseology of the questions or on whether they comply with section 37 of the 2003 act, which is about the information to be put on the form? Should the form be constructed differently? Should the questions be in a different order?" It would be that sort of consultation; we would not be able to consult on whether we needed the information, because we do require it.

You said that you would send people a copy of the previous application and a partially completed new application. There are 18 main questions on the new application. How many of them will be pre-answered when they are sent out?

The aim is to answer only the question that relates to the definition of the land and the maps associated with it. The name and address of the community body will not be pre-populated because we will not know whether they have changed since the earlier application.

We need to ensure that community bodies indicate on the new form who their office bearers are and we need to give them the permission either to cut and paste the answers to the individual questions or to adjust their answers in the light of changes in circumstance over the passage of time. It will be possible for them to cut and paste identical answers, but we will not provide community bodies with a pre-populated form that includes the answers to the substantive questions.

Would it be possible for you to give us an example form that has been filled out for a previous application, with personal information removed?

They are all published—they are on the web.

In that case, would it be possible for you to give us a draft new form for an application as it would be sent out to a community body?

Yes.

That would be helpful.

With the original application as well?

No, I mean a populated form. I have a blank form; I want to see how much information community bodies will be given.

Yes.

I was not an MSP when the 2003 act was passed, so forgive me if I am repeating old stuff. You say that community bodies will have to go through virtually the whole registration process again because of the requirement in section 37 of the act. When the act was passed, it obviously did not take into account any kind of light touch. You have also talked about balloting. Will a community have to be balloted again? If so, who bore the cost of the original ballot and who will bear the cost of the second ballot?

We are all well aware of landowners being good at hiring experienced lawyers to go through all the technicalities. Will the community bodies, in re-registering, have to hire legal advisers again? If so, at whose cost is that likely to be?

At this stage of the community right-to-buy process, the community body is not required to conduct a ballot. It is required to conduct a ballot only when the landowner says that they are going to sell the land. At the registration stage, the community body is required only to provide a list or other evidence to show that it has community support. For the registration applications that we have received, community bodies have provided basic information in the form of a list of names. A community body may have put up a notice in the local shop, for example, for people sign to support its proposals. Community bodies can get such evidence very cheaply by going around people's houses and knocking on doors or by putting up sign-up lists in shops.

You also asked about legal costs. We advise community bodies and landowners at an early stage to get legal advice, but they do not need to. We have received applications on which the applicants have had no legal advice and nothing has been wrong. Likewise, we have received applications on which the community bodies have received legal advice from solicitors and there have been a number of things wrong. It is up to the community bodies whether they want to seek legal advice.

The community assets branch is more than happy at any stage of the community right-to-buy process—from the first inklings that a community body might want to go down that route right through to the end—to come out to the community and provide advice. We provide that advice free, and we are more than happy to go to any part of Scotland, no matter how remote it is.

I have got myself confused now. I thought, from the answers that I received earlier, that part of the process would be a second ballot, but you are saying that a community body has to demonstrate not that an application has the support of a clear majority of the community, just that there is community support for it.

The application for registration must have the support of 10 per cent of the community, but when it comes to purchase of the asset a significant amount of support is required.

I should also have said that, when the community body conducts a ballot, it is the community body that bears the cost, although some local authorities will provide assistance free of charge to help community bodies to undertake a ballot.

That is helpful. I had misunderstood—I thought that re-registration would require a ballot that demonstrated a clear majority support.

We look for 10 per cent support.

I apologise for causing that confusion. The 10 per cent or more community support is demonstrated by reference to the electoral roll for the area concerned. Provided that there are sufficient signatures on a petition to indicate the support of at least 10 per cent of the people on the electoral roll for the area concerned, that is deemed to be a ballot demonstrating that 10 per cent of the community are in favour of the application. I am sorry to have introduced that confusion.

There are no further questions. Do members agree to make no recommendation on SSI 2009/156, the community right-to-buy regulations, or would they prefer to revisit them at our next meeting, following further consideration of our discussion today?

It would be worth having another wee look at the instrument and pausing for now. I hope that it is possible for the officials to relay our comments to the minister and get agreement to withdraw the instrument and bring it back to the committee in a few weeks' time. There is a gulf in understanding, and it would be worth taking the time to speak to some key individuals who advise community groups—not necessarily community groups themselves—so that everybody is brought up to the same level of understanding before we return to the matter. The distinction between a ballot and demonstration of community support needs to be made explicit, and there might be scope for interpreting how to fill in the form. However, those are matters for the minister and officials to reflect on.

Procedurally, I do not think that we should approve the instrument today. We should give ourselves more time, and perhaps the minister will act on the concerns that we have raised.

I do not associate myself with all of Peter Peacock's comments, but I think that we should postpone our consideration of the community right-to-buy regulations and discuss them among ourselves.

I associate myself with Peter Peacock's comments and echo Alasdair Morgan's conclusion.

I imagine that the Government does not want consideration of the regulations to drag on for too long, notwithstanding the fact that the deadline is April next year. The Government should perhaps, somehow or other, set a deadline to ensure that the instrument must be passed before the summer recess so that it will have time to proceed.

Ideally, it would be re-submitted next week. That would then trigger a 40-day consultation period—is that correct, Peter?

The community right-to-buy regulations are a negative instrument, so, if they are not withdrawn or if a motion to annul is not successful, they will become law on 25 May. However, there is a separate issue of when the Government would want a form to be made available and, depending on what happens to the regulations, that may require a separate instrument. As I understand it, that can be reflected on over the next seven days.

May I comment? The form that we have put forward is designed for two purposes: registration and re-registration. The committee's concerns appear to be about whether the form should be used for re-registration purposes rather than about its use for registration. The form can be used effectively for registration purposes, and it would be unfortunate if we delayed the introduction of the guidance and form for the registration process, which we think will ease matters for community groups that are registering in the first instance.

I am happy to discuss with the minister whether the form should be used for re-registration purposes. However, I leave the committee with the thought that, if the form were nonetheless adopted, it could be used for registration purposes and we could review whether it should be used for re-registration purposes. In practical terms, no re-registration applications are due until 30 October.

Can we have that sample form for our next meeting?

Yes.

Okay. Do we agree to carry over consideration of the community right-to-buy regulations to our meeting next week?

Members indicated agreement.

Are we agreed to make no recommendation in relation to the Crofting Community Body (Prescribed Form of Application and Notice) (Scotland) Regulations 2009?

Members indicated agreement.

I close the public part of the meeting and thank the officials for their attendance.

Meeting continued in private until 11:40.