Consultation On The Proposed Community Empowerment - Scottish ...

5.68 The points made in agreeing that application to the courts should be required
were:
to safeguard the rights of the owner; and
to ensure that the local authority is working within the law.
5.69 Those who did not agree in most cases pointed to protracted timescales and
costs involved in going to court. A number of local authorities and community
planning partnerships suggested some possible alternatives such as:
incorporating a new power instead in housing or planning legislation (or
if there are clear regulations laid down by Scottish Government);
restricting the need to apply to the courts to enforce a sale (rather than
lease) or making this the last resort; and
requiring reference to Scottish Ministers or possibly to the Lands
Tribunal rather than to the courts.
“It is suggested that this is an issue for the Scottish Ministers
rather than the courts. The other option would be to
introduce a procedure under which the council would apply to
the Lands Tribunal. This would involve a change to the remit
of the Lands Tribunal. As a final alternative the council
would not need to seek anyone’s consent but there would be
a notice procedure, whereby a notice would be served on the
owner and they would have a set period within which to
challenge in the courts. There would be a need to ensure
that the sale is legally enforceable and defensible if
challenged in court.”
(Renfrewshire Council)
“The Council would see merit in an approach that did not
require it to apply to the courts in order to sell or lease a
home but unless there is a specific way of framing legislation
and related guidance, it is difficult to see how councils can
avoid court action which would enable the owner to
challenge the use of these powers – for example on human
rights grounds – with this likely to increase the costs and time
involved in dealing with these cases.”
(South Lanarkshire Council)
5.70 A similar set of questions was included in relation to non-domestic property.
First, whether local authorities should be given powers to sell or lease longterm
non-domestic property where it is in the public interest to do so. In this
instance “powers to sell” seemed to be correctly interpreted as “powers to
enforce sale”.
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