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Land Reform (Scotland) Act 2003: Part 2
Community Right to Buy: Guidance
ANNEX D
AREAS OF MINISTERIAL DISCRETION
1. The discretionary provisions are designed to deal with deviations from the norm on a case-by-case basis.
2. It will be some time after implementation before the effectiveness of the legislation to deliver opportunities for rural communities to register an interest in and buy land will be able to be assessed. But it is clear that not all communities are exactly the same, therefore the legislation needs to be adaptable in certain circumstances.
3. Areas of Ministerial discretion in Part 2 of the Act are as follows:
3.1 Section 34(2) allows Ministers to accept a CB with less than 20 members, as required under section 34(1)(c), if they think it is in the public interest to do so. In some cases, where a community is particularly remote, it may not be possible for the CB to achieve 20 members, but this will be on an exceptional basis.
3.2 Ministers may also, under section 34(5) direct that a community may be defined other than by reference to postcode unit(s) and comprising residents entitled to vote in a polling district which includes that (or those) postcode unit(s). It is for a CB to define to Ministers its own community, and there may be good reason why this definition may not apply. But it is for a CB to demonstrate to Ministers the need for a different definition and for Ministers to decide that the reason for doing so is justified.
3.3 Section 35(1) allows Ministers to approve modification to a CB's memorandum or articles of association. This provides a certain amount of flexibility, for example, with the CB's business plans, or other issues which may change over the registration period or following purchase of land under the legislation. Section 35(3) provides for Ministers to compulsorily acquire land from a CB which no longer meets the requirements of the legislation.
3.4 Section 37(11) provides discretion for Ministers to refuse an application under certain circumstances, and section 37(17) allows Ministers to decide whether or not to register an interest in the RCIL.
3.5 Section 38(2)(b) allows Ministers to accept less than 10% community support for registration purposes.
3.6 Section 39(3) provides the requirements on which Ministers will determine whether or not to allow a late registration of interest.
3.7 Section 42 provides the power for Ministers to modify certain sections of the Act.
3.8 Section 44(3) provides Ministers with the power to decide on whether a re-registration of interest should be entered in the RCIL.
3.9 Section 51(2) requires Ministers to be satisfied that the ballot for demonstrating majority support for proceeding with the right to buy has been demonstrated and, under section 52, that the ballot has been conducted as prescribed. Ministers must also be satisfied that the criteria under sections 51(3) and 53 are met.
3.10 Where two or more CBs have confirmed that they wish to buy the same piece of land, section 55(2) allows Ministers to decide which one will proceed.
3.11 Section 63(1) provides the power for Ministers to determine the level of compensation to be paid following such a claim. This is reflected in regulation 5 of the Community Right to Buy (Compensation)(Scotland) Regulations 2004 accompanying the Act.
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