Court upholds Ministers’ decision to force sale under Part 5 of the Land Reform (Scotland) Act 2016
Sheriff Niven-Smith has refused the appeal by an owner against the decision of the Scottish Ministers that a local community group may purchase a small neglected urban site in St Andrews against the owner's wishes.
The community group had earlier made a successful application under Part 5 of the Land Reform (Scotland) Act 2016 (“the 2016 Act”) - the “Right to buy land to further sustainable development”. Assuming the owner does not appeal further, that decision now stands and the community body may proceed to acquire the plot at market value.
While this case is not necessarily a landmark decision, it is nevertheless significant in that it is the first case to be reviewed by the Sheriff Appeal Court and gives some guidance on how the legislation will be interpreted.
It was not a judicial review but the parties agreed that it should proceed on the same basis. This meant the Sheriff looked at whether or not Scottish Ministers had considered everything they should have considered and didn't consider anything they shouldn't in arriving at their decision. At the time of writing the case had not yet been appealed.
What the legislation says
In considering an application under Part 5 of the 2016 Act Scottish Ministers must only permit the purchase if the sustainable development conditions set out in the legislation are met as well as the process being followed correctly. This case examined the first part of that test.
All of the following conditions must be met, which is quite a high bar to reach. These are:-
(a) the transfer of land is likely to further the achievement of sustainable development in relation to the land,
(b) the transfer of land is in the public interest,
(c) the transfer of land—
(i) is likely to result in significant benefit to the relevant community to which the application relates, and
(ii) is the only practicable, or the most practicable, way of achieving that significant benefit, and
(d) not granting consent to the transfer of land is likely to result in harm to that community.
In deciding the sustainable development conditions are met Ministers may take into account the extent to which, in relation to the relevant community, regard has been had to the relevant guidance issued under the Act. The Act requires that this guidance is informed by consideration of human rights.
Sustainable development
The Act does not define sustainable development so the Court spent some time looking at what this term meant and agreed with Ministers that it is much wider than just economic sustainability. It was satisfied that the court could apply the 5 guiding principles set out in the United Kingdom Government Sustainable Development Strategy namely (i) Living within Environmental limits, (ii) Ensuring a strong, Healthy and Just Society, (iii) Achieving a sustainable Economy, (iv) Promoting Good Governance and (v) Using Sound Science Responsibly.
Public Interest
In relation to public interest it was noted that there is fixed no list of factors which comprise the public interest and so what Ministers may consider may vary from application to application. However the Act does set out 2 factors which must be considered in all cases. These are that Ministers must consider any information supplied by the owner to Scottish Ministers prior to their original decision and secondly Ministers must consider the likely effect of granting (or not granting) consent on land use in Scotland. The Court found that the fact this this was the first case under the Act was one aspect which could be considered but agreed with Ministers that the small, urban nature of the plot did not prevent this from being significant to wider land use decisions in future through “leading by example”.
Significant benefit
The community body must not only show that their application is likely to result in significant benefit but also that it is the only or most practicable way of achieving that benefit.
It was relevant here that there was a history of failed planning applications by the owner to commercially develop the site into a cafe. The Sheriff agreed that Ministers should not assess the site remaining with the current owner as if a café were to be sited on the subjects. They had to consider the reality of the factual situation. However, the judgement does not indicate (nor did the owner appear to have raised the point) whether Ministers should have considered whether or not the community body was the only entity realistically capable of developing the site as proposed or that the same result could not have been achieved by a route other than forced sale - such as leasing the land.
The Act also sets out that in deciding what constitutes significant benefit to the community or harm to the community the Scottish Ministers must consider the likely effect of granting (or not granting) consent to the transfer on the lives of the people in that community with reference to economic development, regeneration, public health, social wellbeing, and environmental wellbeing. The Court agreed with Ministers that each as these elements of the benefit need not be significant in itself as long as the overall result constituted significant benefit.
The court also noted that because the parties had agreed the case would proceed in a similar manner to a judicial review, it could not take account of material (such as subsequent planning applications) which would not have been available to Ministers at the time of the original decision.
Community consultation
As regards community consultation, in this case it appeared that the owner had not been aware that guidance had been issued pursuant to the Act about engaging communities in decisions relating to land which may affect communities. Ministers were therefore found to be entitled to have regard to the fact that there had been no evidence of community consultation. Importantly, the Sheriff said “the [Scottish Ministers’] consideration of the lack of consultation a close and penetrating examination of the facts here would lead the court to conclude that there was justification for the removal of the property rights of the [owner] and the actings of the [Scottish Ministers] were ECHR compliant.”
Take away points
- This is decision is useful but not the Court’s last word on Part 5 as decisions by the Sheriff Appeal Court may be appealed and Judicial Review proceedings may also be brought before the Court of Session.
- This case was treated as if it was a judicial review by agreement of the parties. It is therefore possible there could have been a different outcome if it had not been so treated.
- The owner only sought to review the decision by reference to two of the three generally recognised grounds for judicial review namely illegality and irrationality. Procedural impropriety was not considered.
- The importance of retaining evidence of community consultation when making decisions in relation to land (not just sale or transfer) cannot be overstated.
- Even if the “likely to result in significant benefit” test is met, it is arguable that neither the owner nor the court focussed enough on the second part of the test, namely in demonstrating it was the only practicable, or the most practicable, way of achieving that significant benefit. There did not appear to be anything specific to this particular community body that would have enabled it to be the only entity capable of developing the site in the way they planned nor that the same outcomes could not have been achieved by leasing the ground to the community rather than forcing a sale.
A further application has been made under Part 5 of the 2016 Act relating to a small, neglected heritage orchard on the edge of a village in Perthshire. This application does not have the same history of planning applications by either owner or community body and the owner has not engaged with the community body after an informal offer to buy the site in 2023. A further informal offer was made the same day as the application was submitted under Part 5.
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