The Asset Transfer Request (Review Procedure) (Scotland) Regulations 2016

Made: 8th November 2016

Laid before the Scottish Parliament: 10th November 2016

Coming into force: 23rd January 2017

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 86(3) and (7)(b)(i) and 87(3) of the Community Empowerment (Scotland) Act 2015[^f00001] and all other powers enabling them to do so.

PART 1 — Preliminary

Citation, commencement and application

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• (1) These Regulations may be cited as the Asset Transfer Request (Review Procedure) (Scotland) Regulations 2016 and come into force on 23rd January 2017.

• (2) These Regulations (other than Part 4) apply to applications for review made under section 86(2) of the Act (review by local authority).

• (3) These Regulations apply as specified in regulation 13 to applications for review made under section 87(2) of the Act (review of decisions by the Scottish Ministers).

Interpretation

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In these Regulations—

• “the Act” means the Community Empowerment (Scotland) Act 2015;

• “asset transfer request” means the asset transfer request to which the application for review relates;

• “community transfer body” means the community transfer body which made the asset transfer request;

• “contact address” has the meaning given in regulation 18;

• “decision notice” means the notice given by the relevant authority of its decision on the asset transfer request;

• “hearing session” means a hearing held or to be held into matters specified in a notice given under rule 1(1) of the Hearing Session Rules;

• “Hearing Session Rules” means the rules set out in the schedule;

• “interested party” means any person from whom the relevant authority received representations (which were not subsequently withdrawn) in connection with the asset transfer request;

• “period allowed for determination of the request” means— the period of 6 months beginning with the validation date; or such longer period as may be agreed between the community transfer body and the relevant authority under section 82(8)(b) of the Act;

• “relevant authority” means the relevant authority to whom the asset transfer request is made;

• “review documents” means the decision notice in respect of which the application for review is made, the application for review, all documents accompanying the application for review in accordance with regulation 3 and any representations or comments made under regulation 4(4) or (6);

• “review panel” means the persons appointed by the Scottish Ministers under regulation 12(1) to consider the asset transfer request and to report to them on it;

• “rule” means a rule set out in the schedule;

• “specified matters” are, in relation to a request for further written representations or information under regulation 8 or to a particular hearing session, those matters which are set out in the notice given under regulation 8(1) or rule 1(1) of the Hearing Session rules, as the case may be;

• “validation date” has the same meaning as in the Asset Transfer Request (Procedure) (Scotland) Regulations 2016[^f00002]; and

• “working day” means every day except— Saturday and Sunday; 25th and 26th December; and 1st and 2nd January.

PART 2 — Application for review under section 86(2) of the Act

Application for review

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• (1) An application for review to the local authority under section 86(2) of the Act is to be made in writing in accordance with this regulation.

• (2) The application for review must be made to the local authority within the period of 20 working days beginning with, in the case of an application for review made by virtue of—

• (a) section 86(1)(b)(i) or (ii) of the Act, the date of the decision notice; and

• (b) section 86(1)(b)(iii) of the Act, the date of expiry of the period allowed for determination of the request.

• (3) The application for review must—

• (a) include the name and contact address of the community transfer body;

• (b) specify the land to which the asset transfer request relates;

• (c) include a statement setting out the community transfer body’s reasons for requiring a review of the case and by what, if any, procedure (or combination of procedures) the community transfer body considers the review should be conducted; and

• (d) be accompanied by a list of all documents, materials and evidence which the community transfer body intends to rely on in the review.

• (4) Subject to paragraph (5)—

• (a) all matters which the community transfer body intends to raise in the review must be set out in the application for review or in the documents, materials and evidence referred to on the list submitted in accordance with paragraph (3)(d); and

• (b) the application for review must be accompanied by a copy of all documents, materials and evidence specified on such list other than any documents, materials or evidence which—

• (i) the community transfer body has already provided to the local authority in connection with the asset transfer request; or

• (ii) the local authority otherwise already holds.

• (5) In addition to matters set out in the application for review and in the documents, materials and evidence referred to the list submitted in accordance with paragraph (3)(d), the community transfer body may raise matters and submit further documents, materials or evidence only—

• (a) in accordance with and to the extent permitted by regulation 4(6); or

• (b) where the local authority makes a request (under regulation 8(1), rule 1(1) of the Hearing Session Rules or otherwise) for further representations to be made or further information to be provided by the community transfer body.

Notification to interested parties and publication

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• (1) The local authority must before the expiry of the period of 10 working days beginning with the date on which the application for review is made—

• (a) send an acknowledgement of the application for review to the community transfer body stating the date on which the application for review was made and inform the community transfer body how documents related to the review may be inspected; and

• (b) give notice of the review to each interested party.

• (2) Notice under paragraph (1)(b) is to be given—

• (a) in writing to an interested party who is an owner, tenant or occupier of the land to which the asset transfer request relates; and

• (b) in writing or by advertisement in a newspaper circulating in the locality where the land is situated, to any other interested party.

• (3) Notice under paragraph (1)(b) is to—

• (a) state the name of the community transfer body;

• (b) specify the land to which the asset transfer request relates;

• (c) state that copies of any representations previously made with respect to the asset transfer request, will be considered by the local authority when determining the review;

• (d) state that further representations may be made to the local authority and include information as to how any representations may be made, by what date they must be made and that a copy of the representation will be sent to the community transfer body for comment; and

• (e) state how a copy of the application for review and other documents related to the review may be inspected.

• (4) An interested party may within the period of 10 working days beginning with the date on which notice is given under paragraph (1)(b) make representations in respect of the review to the local authority.

• (5) The local authority must send a copy of any representations received under paragraph (4) to the community transfer body and must inform the community transfer body how and by what date (being a date not less than 10 working days after the date on which such copy is sent under this paragraph) the community transfer body may make comments to the local authority on such representations.

• (6) The community transfer body may, on or before that date, make comments on such representations to the local authority.

• (7) An interested party may, in addition to any representations made by virtue of paragraph (4), raise matters and submit further documents, materials or evidence only in accordance with a request made under regulation 8(1), rule 1(1) of the Hearing Session Rules or otherwise.

Publication of review documents

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The local authority must, in relation to a review, make a copy of—

• (a) the review documents; and

• (b) any notice given under regulation 4(1)(b),

available for inspection on a website or by other electronic means until such time as the review is determined.

PART 3 — Procedure for Determination

Determination without further procedure

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Where the local authority considers that the review documents provide sufficient information to enable it to determine the review, it may determine the review without further procedure.

Decision as to further procedure

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• (1) Where the local authority does not determine the review without further procedure, the local authority may determine the manner in which the review is to be conducted.

• (2) The local authority may determine at any stage of the review—

• (a) that further representations should be made or further information should be made available or provided to enable the review to be determined; and

• (b) how such further representations or further information should be made available or provided.

• (3) Where the local authority considers that further representations should be made or further information should be made available or provided by means of—

• (a) written submissions, regulation 8 applies;

• (b) a hearing session, the Hearing Session Rules apply.

• (4) Notices given under regulation 8(1) or rule 1(1) of the Hearing Session Rules may be given separately or combined into a single notice.

Written submissions

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• (1) Where the local authority has determined that further representations should be made or further information should be provided by means of written submissions, the local authority may request such further representations or information and is to do so by giving written notice to that effect to—

• (a) the community transfer body; and

• (b) any other person from whom the local authority wishes to receive further representations or information.

• (2) The notice given under paragraph (1) is to—

• (a) set out the matters on which such further representations or information is requested;

• (b) specify the date by which such further representations or information are to be sent to the local authority; and

• (c) provide the name and address of any person to whom the notice is given.

• (3) Any further representations made or information provided in response to the notice given under paragraph (1) (“additional material”) are to be sent to the local authority on or before the date specified for that purpose in the notice and a copy of any additional material is to be sent on or before that date to any other person to whom the notice was given.

• (4) Within a period of 10 working days beginning with the date of receipt of a copy of the additional material, any person to whom the notice under paragraph (1) was given—

• (a) may send comments to the local authority in respect of the additional material; and

• (b) must, when doing so, send a copy of such comments to any other person to whom the notice was given under paragraph (1).

• (5) A copy of any additional material or any comments required to be sent to a person under this regulation is to be sent to the person at the address stated for that person in the notice given under paragraph (1).

• (6) In this regulation “additional material” has the meaning given in paragraph (3).

Time period for decision

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The period prescribed for the purposes of section 86(7)(b)(i) of the Act is the period of 6 months beginning with the date on which the application for review under section 86(2) of the Act is made.

New evidence

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• (1) If, after the conclusion of any further procedure conducted by virtue of regulation 7, the local authority proposes to take into consideration any new evidence which is material to the determination of the review, the local authority must not reach a decision on the review without first affording the community transfer body and any other relevant party an opportunity of making representations on such new evidence.

• (2) In this regulation “relevant party” means—

• (a) where the new evidence relates to a specified matter considered at a hearing session, any person entitled to appear at that hearing session;

• (b) where the new evidence relates to matters in respect of which further written representations or information was sought by a notice under regulation 8(1), any person to whom such notice was sent.

PART 4 — Reviews under section 87(2) of the Act

Reviews under section 87(2) of the Act

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• (1) An application for review under section 87(2) of the Act is to be made in writing in accordance with this regulation.

• (2) The application for review must be served on the Scottish Ministers within the period of 20 working days beginning with, in the case of an application for review made by virtue of—

• (a) section 87(1)(b)(i) or (ii) of the Act, the date of the decision notice; and

• (b) section 87(1)(b)(iii) of the Act, the date of expiry of the period allowed for determination of the request.

Review panel

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• (1) Where an application for review is made the Scottish Ministers must appoint 3 persons, no more than one of whom may be a member of the staff of the Scottish Ministers, to consider the asset transfer request and report to them on it (“the review panel”).

• (2) Following such consideration the review panel must report–

• (a) their findings in fact and conclusions in respect of the asset transfer request; and

• (b) their recommendations as to the determination of the asset transfer request,

to the Scottish Ministers.

Application of regulations

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These Regulations, other than regulations 3(1) and (2), 9 and 10, apply to a review under section 87(2) of the Act as they apply to a review under section 86(2) of the Act as if—

• (a) in regulation 3(4), in regulation 4 and in regulation 5, references to the local authority were references to the Scottish Ministers;

• (b) in Part 3 and in the Hearing Session Rules references to the local authority were references to the review panel; and

• (c) in regulation 6 for “it to determine the review, it may determine the review” there were substituted “them to do so, the review panel may finalise their report”;

• (d) in regulation 7(1)—

• (i) for “does not determine the review without” there were substituted “consider that”; and

• (ii) after “procedure” there were inserted “is desirable to assist them in the preparation of their report”.

New evidence

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• (1) If, after the consideration of the review panel’s report, the Scottish Ministers propose to take into consideration any new evidence which is material to the determination of the review, the Scottish Ministers must not reach a decision on the review without affording the community transfer body and any other relevant party an opportunity of making representations on such new evidence.

• (2) In this regulation—

• “relevant party” means— where the new evidence relates to a specified matter considered at a hearing session, any person entitled to appear at that hearing session; where the new evidence relates to matters in respect of which further written representations or information was sought by a notice under regulation 8(1), any person to whom such notice was sent.

PART 5 — General

Further copies of documents etc.

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• (1) The relevant authority may require any person who has submitted documents, materials or evidence under these Regulations in connection with the review to—

• (a) provide to the relevant authority such number of additional copies of such of those documents, materials or evidence as they may specify; and

• (b) provide to such other persons as they may specify such copies or additional copies of any documents, materials or evidence as they may specify.

• (2) The relevant authority must, until such time as the review is determined, make copies of such documents, materials or evidence provided under paragraph (1)(a) available for inspection at an office of the relevant authority and, where practicable, must afford any person who so requests a reasonable opportunity of taking copies of such documents (or any part thereof).

Compliance with notification and consultation procedures

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• (1) The relevant authority must, to the extent not already done so, comply with regulations 6 (notification of asset transfer request) and 7 (publication of asset transfer request) of the Asset Transfer Request (Procedure) (Scotland) Regulations 2016[^f00003] before determining the review.

• (2) Where the relevant authority notifies any person in accordance with paragraph (1), references in these Regulations (other than regulation 4) to an interested party include any such person from whom the relevant authority received representations (which are not subsequently withdrawn) in connection with the asset transfer request.

Decision notice

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