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The Asset Transfer Request (Appeals) (Scotland) Regulations 2016

Type Scottish-Statutory-Instrument

Publication 2016-11-08

State In force

Jurisdiction Scotland

Department King's Printer for Scotland

Source legislation.gov.uk

Reform history JSON API PDF

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 section 85(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

1

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

(2) These Regulations (other than Part 4) apply to appeals under section 85(2) of the Act (appeals).

(3) These Regulations apply as specified in regulation 12 to appeals under section 88(2) of the Act (appeals from reviews under section 86).

Interpretation

2

(1) In these Regulations—

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

“asset transfer request” means the asset transfer request to which the appeal relates;

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

“contact address” has the meaning given in regulation 16;

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party” means any person from whom the relevant authority received representations (which were not subsequently withdrawn) in connection with the asset transfer request;

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

“relevant authority’s response” has the meaning given in regulation 4(2)(a);

“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 9 or to a particular hearing session, those matters which are set out in the notice given under regulation 9(1) or rule 1(1) of the Hearing Session Rules, as the case may be; and

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

PART 2 — Appeals under section 85(2) of the Act

Notice of appeal

3

(1) An appeal to the Scottish Ministers under section 85(2) of the Act is to be made by giving notice in writing in accordance with this regulation.

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

(a) section 85(1)(a) or (b) of the Act, the date of the decision notice; and

(b) section 85(1)(c) of the Act, the date of expiry of the period allowed for determination of the request.

(3) The notice of appeal must—

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

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

(c) include a statement setting out full particulars of the appeal including a note of the matters which the community transfer body considers require to be taken into account in determining the appeal and by what, if any, procedure (or combination of procedures) the community transfer body considers the appeal should be conducted.

(4) The notice of appeal must be accompanied by—

(a) a copy of the asset transfer request;

(b) a copy of the documents provided by the community transfer body to the relevant authority in connection with the asset transfer request; and

(5) Subject to paragraph (6)—

(a) all matters which the community transfer body intends to raise in the appeal must be set out in the notice of appeal or in the documents which accompany the notice of appeal; and

(b) all documents, materials and evidence which the community transfer body intends to rely on in the appeal must accompany the notice of appeal.

(6) In addition to matters set out in the notice of appeal and documents which accompany the notice of appeal, 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 or 5; or

(b) where the Scottish Ministers make a request (under regulation 9(1), rule 1(1) of the Hearing Session Rules or otherwise) for further representations to be made or further information to be provided to them by the community transfer body.

(7) In this regulation—

“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; and

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

Intimation to relevant authority and relevant authority’s response

4

(1) The community transfer body must at the same time as giving the notice of appeal to the Scottish Ministers send to the relevant authority—

(a) a copy of the notice of appeal;

(b) a list of all documents, materials and evidence which the community transfer body intends to rely on in the appeal and which accompanied the notice of appeal in accordance with regulation 3(4)(b); and

(c) 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 relevant authority in connection with the asset transfer request; or

(ii) the relevant authority otherwise already hold.

(2) The relevant authority must, before the expiry of the period of 15 working days beginning with the date of receipt of notification of an appeal under paragraph (1), send to the Scottish Ministers and the community transfer body—

(a) a note (“the relevant authority’s response”) of the matters which the relevant authority considers require to be taken into account in determining the appeal and by what, if any, procedure (or combination of procedures) the relevant authority considers the appeal should be conducted; and

(b) a copy of the documents (other than those specified on the list mentioned in paragraph (1)(b)) which were before the relevant authority and which were taken into account in reaching its decision.

(3) The community transfer body may, within the period of 15 working days beginning with the date of receipt of the relevant authority’s response, send to the Scottish Ministers and the relevant authority—

(a) comments on any matters raised in the relevant authority’s response which had not been raised in any decision notice given by the relevant authority; and

(b) any documents, materials or evidence on which the community transfer body intends to rely in relation to such comments.

(4) In addition to matters set out in the relevant authority’s response and related documents, the relevant authority may raise matters and submit further documents, materials or evidence only in accordance with and to the extent permitted by regulation 5(6) or where the Scottish Ministers make a request (under regulation 9(1), rule 1(1) of the Hearing Session Rules or otherwise) for further representations to be made or further information to be provided to them by the relevant authority.

Notification to interested parties

5

(1) The relevant authority must before the expiry of the period of 10 working days beginning with the date of receipt of notification of the appeal under regulation 4(1) give notice of the appeal to each interested party.

(2) Notice under paragraph (1) 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) 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 to the relevant authority, will be sent to the Scottish Ministers and the community transfer body and will be taken into consideration in the determination of the appeal;

(d) state that further representations may be made to the Scottish Ministers and include information as to how any representations may be made and by what date they must be made; and

(e) state how a copy of the notice of appeal and other documents related to the appeal 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), make representations in respect of the appeal to the Scottish Ministers.

(5) The Scottish Ministers are to send a copy of any representations received under paragraph (4) to the community transfer body and to the relevant authority and are to inform them 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) they may make comments to the Scottish Ministers on such representations.

(6) The community transfer body and the relevant authority may, on or before that date, make comments on such representations to the Scottish Ministers.

(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 by the Scottish Ministers (under regulation 9(1), rule 1(1) of the Hearing Session Rules or otherwise).

Publication of appeal documents

6

The Scottish Ministers must, in relation to an appeal, make copies of—

(a) the notice of appeal;

(b) the relevant authority’s response and any comments sent under regulation 4(3)(a);

(i) specified on the list mentioned in regulation 4(1)(b);

(ii) sent in accordance with regulation 4(2)(b) and (3)(b);

(d) any notice given under regulation 5(1); and

(e) any representations or comments made under regulation 5(4) or (6),

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

PART 3 — Procedure for determination

Determination without further procedure

7

Where the Scottish Ministers consider that no further representations are, or information is, required to enable the appeal to be determined, the Scottish Ministers may determine the appeal without further procedure.

Decision as to further procedure

8

(1) Where the Scottish Ministers do not determine the appeal without further procedure, the Scottish Ministers may determine the manner in which the appeal is to be conducted.

(2) The Scottish Ministers may determine at any stage of the appeal—

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

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

(3) Where the Scottish Ministers consider that further representations should be made or further information should be made available or provided by means of—

(a) written submissions, regulation 9 applies;

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

(4) Notices given under regulation 9(1) or rule 1(1) of the Hearing Session Rules may be given separately or combined into a single notice.

Written submissions

9

(1) Where the Scottish Ministers have determined that further representations should be made or further information should be provided by means of written submissions, the Scottish Ministers may request such further representations or information and are to do so by giving written notice to that effect to—

(a) both the community transfer body and the relevant authority; and

(b) any other person from whom the Scottish Ministers wish 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 Scottish Ministers; and

(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 Scottish Ministers 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 Scottish Ministers 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).

New evidence

10

(1) If, after the conclusion of any further procedure conducted by virtue of regulation 8, the Scottish Ministers propose to take into consideration any new evidence which is material to the determination of the appeal, the Scottish Ministers must not reach a decision on the appeal without affording the community transfer body, the relevant authority 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 9, any person to whom such notice was sent.

PART 4 — Appeals under section 88(2) of the Act

Appeals under section 88(2) of the Act

11

(1) An appeal to the Scottish Ministers under section 88(2) of the Act is to be made by giving notice in writing in accordance with this regulation.

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

(a) section 88(1)(a) or (b) of the Act, the date of the decision notice; and

(b) section 88(1)(c) of the Act, the date of expiry of the period allowed for determination of the review.

(3) In this regulation, “period allowed for determination of the review” means—

(a) the period specified in regulation 9 of the Asset Transfer Request (Review Procedure) (Scotland) Regulations 2016[^f00003]; or

(b) such longer period as may be agreed between the community transfer body and the relevant authority under section 86(7)(b)(ii) of the Act.

Application of regulations

12

(1) These Regulations, other than regulation 3(1) and (2), apply to an appeal under section 88(2) of the Act as they apply to an appeal under section 85(2) of the Act with the modification specified in paragraph (2).

(2) Regulation 3(4)(c) applies as if the reference to section 85(1)(a) or (b) of the Act were a reference to section 88(1)(a) or (b) of the Act.

PART 5 — General

Further copies of documents etc.

13

(1) The Scottish Ministers may require any person who has submitted documents, materials or evidence under these Regulations in connection with the appeal to—

(a) provide to the Scottish Ministers such number of additional copies of such of those documents, materials or evidence as the Scottish Ministers may specify;

(b) provide to such other persons as the Scottish Ministers may specify such copies or additional copies of any document, materials or evidence as the Scottish Ministers may specify.

(2) The Scottish Ministers may require the relevant authority to—

(a) make copies of such documents, materials or evidence as the Scottish Ministers may specify available for inspection at an office of that relevant authority until such time as the appeal is determined; and

(b) afford to any person who so requests a reasonable opportunity to inspect and, where practicable, take copies of any such documents, materials or evidence (or any part thereof) which, or a copy of which, has been sent to the relevant authority in accordance with this regulation.

Compliance with notification and consultation procedures

14

(1) The Scottish Ministers must before determining the appeal, to the extent not already done so by the relevant authority, comply with regulation 6 (notification of asset transfer request) and regulation 7 (publication of asset transfer request) of the Asset Transfer Request (Procedure) (Scotland) Regulations 2016[^f00004].

(2) Where the Scottish Ministers notify any person in accordance with paragraph (1), references in these Regulations (other than regulation 5) to an interested party include any such person from whom the Scottish Ministers received representations (which are not subsequently withdrawn) in connection with the asset transfer request.

Decision notice

15

The Scottish Ministers must—

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