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3. CATRSC General Legal Advice

Renfrewshire Council · 20 January 2023
Back to Community Asset Transfer Review Sub-Committee — 20 January 2023 and its agenda

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Community Asset Transfer Review Sub-Committee 
General Legal Advice 
The Community Empowerment (Scotland) Act 2015 (‘the 2015 Act’) brought into existence a right
for certain bodies to request to buy, lease, manage, occupy or use land owned by the Council. A valid
request may only be refused on reasonable grounds. 
In Renfrewshire, these requests are dealt with in the first instance by a panel of officers. 
If a request is refused for any reason, the 2015 Act provides that the applicant may apply for a
review of that decision. The Community Asset Transfer Review Sub-Committee is charged with
carrying out that review. 
Although the mechanism by which the original decision may be challenged is termed a ‘review’, it is
important to note that the Sub-Committee is not confined to looking at the terms of the original
decision. Rather, it is being asked to make the decision again, of new. That allows it to bring in any
relevant consideration and not just those dealt with in the original decision. 
The Sub-Committee will either:
• agree to the request on the conditions proposed by the applicant; 
• agree to the request on conditions different from those proposed; 
• refuse the request. 
Who May Make a Request? 
The first step in determining a request for review is to consider whether it is valid in terms of the
2015 Act. To constitute a valid request, it must come from a ‘community transfer body’. 
In order to qualify, a body must be, either: 
1. A community-controlled body, as defined in s.19 of the 2015 Act. That means, a body (whether
corporate or unincorporated) having a written constitution that includes all of the following—

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(a) a definition of the community to which the body relates,
(b) provision that the majority of the members of the body is to consist of members of that
community,
(c) provision that the members of the body who consist of members of that community have
control of the body,
(d) provision that membership of the body is open to any member of that community,
(e) a statement of the body's aims and purposes, including the promotion of a benefit for
that community, and
(f) provision that any surplus funds or assets of the body are to be applied for the benefit of
that community. 
2. A body that falls within a class specified by the Scottish Minsters by order. 
The Scottish Ministers have specified two such classes: ‘community bodies’ or ‘crofting
community bodies’, as these terms are defined in the Land Reform (Scotland) Act 2003. The
latter is not likely to apply in Renfrewshire, so is not discussed here. 
‘Community bodies’ are bodies that are either: 
• a company limited by guarantee, that has special provisions in its articles of association; 
• a Scottish charitable incorporated organisation (an “SCIO”) with special provisions in its
constitution. SCIOs are a particular type of charitable organisation. Most charities are NOT
SCIOs, so it is not enough to fall within this class simply to have charitable status. An
applicant will be able to confirm if it is registered as an SCIO; 
• a community benefit society with special provisions in its registered rules. 
The special provisions required in each case are numerous. In the case of an SCIO, the specified
provisions required to be in its constitution in order to qualify as a community transfer body are: 
(a) a definition of the community to which the SCIO relates,
(b) provision enabling the SCIO to exercise the right to buy land under the community
right to buy provisions,

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(c) provision that the SCIO must have not fewer than 10 members,
(d) provision that at least three quarters of the members of the SCIO are members of
the community,
(e) provision under which the members of the SCIO who consist of members of the
community have control of the SCIO,
(f) provision ensuring proper arrangements for the financial management of the SCIO,
(g) provision that, on the request of any person for a copy of the minutes of a meeting
of the SCIO, the SCIO must, if the request is reasonable, give the person within 28 days of
the request a copy of those minutes,
(h) provision that, where a request of the type mentioned in paragraph (g) is made, the
SCIO—
(i) may withhold information contained in the minutes, and
(ii) if it does so, must inform the person requesting a copy of the minutes of its reasons
for doing so, and
(i) provision that any surplus funds or assets of the SCIO are to be applied for the
benefit of the community. 
If an SCIO’s constitution does not fit all of these criteria, it does not qualify to make an asset transfer
request under this second head. Unless it fits the requirements set out at 1. above, therefore, the
request should be refused. 
Valid Requests 
If the request is valid, the Sub-Committee may go on to consider the terms of the request. The
legislation provides that the request should be approved, unless there are reasonable grounds to
refuse it. There is no definition as to what would constitute reasonable grounds for refusal, but the
2015 Act does specify the factors that the Sub-Committee must take into account in coming to its
decision. These are: 
(a) the reasons for the request, 
(b) any other information provided in support of the request (whether such other
information is contained in the request or otherwise provided), 
(c) whether agreeing to the request would be likely to promote or improve—

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(i) economic development,
(ii) regeneration,
(iii) public health,
(iv) social wellbeing, or
(v) environmental wellbeing, 
(d) whether agreeing to the request would be likely to reduce inequalities of outcome which
result from socio-economic disadvantage, 
(e) any other benefits that might arise if the request were agreed to, 
(f) any benefits that might arise if the authority were to agree to or otherwise adopt an
alternative proposal in respect of the land to which the request relates, 
(g) how such benefits would compare to any benefits such as are mentioned in paragraphs
(c) and (e), 
(h) how any benefits such as are mentioned in paragraph (f) relate to other matters the
authority considers relevant (including, in particular, the functions and purposes of the
authority), 
(i) any obligations imposed on the authority, by or under any enactment or otherwise, that
may prevent, restrict or otherwise affect its ability to agree to the request, and 
(j) such other matters (whether or not included in or arising out of the request) as the
authority considers relevant. 
The last of these headings is potentially wide-ranging and therefore allows the Sub-Committee to
bring anything it reasonably considers to be relevant to bear on the decision. 
The Sub-Committee may decide to ask for written representations from either the applicant or
Property Services on any issue that it considers may be relevant and that it requires more
information on. It may also fix a hearing, if it considers that certain issues require to be addressed in
person.

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The Decision 
When a decision is made, members will be asked to confirm the reasons for it, to allow a decision
notice to be produced. If the decision is to agree to the request with different conditions from those
proposed or to refuse the request, the applicant may appeal the decision further to the Scottish
Ministers. 
Nairn Young
Assistant Managing Solicitor (Litigation and Advice)
Tel: 0141 487 1626
January 2023