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STATUTORY INSTRUMENTS
1995 No. 2499 (S.181)
LOCAL GOVERNMENT, SCOTLAND
The Local Authorities (Property Transfer) (Scotland) Order 1995
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Laid before Parliament
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26th September 1995
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Coming into force
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17th October 1995
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The Secretary of State, in exercise of the powers conferred on him by sections 15 and 181(1) and (2)(a) of the Local Government etc. (Scotland) Act 1994[1] (and section 15 as applied by section 138 of that Act), and of all other powers enabling him in that behalf, hereby makes the following Order:
Citation, commencement and interpretation
1.—(1) This Order may be cited as the Local Authorities (Property Transfer) (Scotland) Order 1995 and shall come into force on 17th October 1995.
(2) In this Order, unless the context otherwise requires—"the 1994 Act" means the Local Government etc. (Scotland) Act 1994;
"the Administration" means the Scottish Children's Reporter Administration established under section 128 of the 1994 Act;
"authority" means— (a) a regional or district council;
(b) an authority constituted under section 2 of the 1994 Act; and
"disaggregating authority" means an authority specified in Schedule 1 to this Order;
"excluded property" means— (a) property which will transfer under or by virtue of section 16 (Property held on trust) or 17 (Educational endowments) of the 1994 Act;
(b) property which on 1st April 1996 will, by virtue of section 40(2) of the 1994 Act, transfer to and vest in the Strathclyde Passenger Transport Authority;
(c) property which on 1st April 1996 will, under or by virtue of section 91 of the 1994 Act, transfer to and vest in a new water and sewerage authority;
(d) property which on 1st April 1996 will, by virtue of a scheme made under section 22 of the Environment Act 1995[2], transfer to and vest in the Scottish Environment Protection Agency;
(e) property which on 1st April 1996 will, by virtue of the Roads (Transitional Powers) (Scotland) Order 1995[3], transfer to and vest in the Secretary of State;
(f) property which on 1st April 1996 will, by virtue of regulations made under section 7 of the Superannuation Act 1972[4], transfer to and vest in an authority for the purposes of the maintenance and administration of a superannuation fund;
(g) property which is vested in a disaggregating authority by virtue of, and wholly for the purposes of, its functions as a police authority and which on 1st April 1996 will, by virtue of article 8 below, transfer to and vest in a joint board;
(h) property which is vested in a disaggregating authority by virtue of, and wholly for the purposes of, its functions as a fire authority and which on 1st April 1996 will, by virtue of article 9 below, transfer to and vest in a joint board;
(i) property which on 1st April 1996 will, by virtue of article 10 below, transfer to and vest in a joint board;
(j) property which on 1st April 1996 will, by virtue of article 11(1) and (2) below, transfer to and vest in the Administration;
(k) property which immediately before 1st April 1996 is held by an authority as part of the common good and will, by virtue of article 12 below, transfer to and vest in the authority referred to therein;
"property" includes any property whether heritable or moveable together with any rights, liabilities and obligations related thereto;
"the property commission" means the Local Government Property Commission (Scotland) established under the 1994 Act[5];
"relevant property" means all property other than excluded property;
"successor authority" in relation to a disaggregating authority, means an authority which will, on and after 1st April 1996, exercise functions in relation to all or any part of the area of that disaggregating authority.
Transfer of local authority property
2. Subject to article 11(3) below, on 1st April 1996 all relevant property vested immediately before that date in an authority specified in Column 1 of Schedule 2 to this Order shall transfer to and vest in the authority specified in the related entry in Column 2 of that Schedule.
3.—(1) Subject to article 11(3) below, on 1st April 1996 all relevant property vested immediately before that date in a disaggregating authority shall transfer to and vest in such one or more of its successor authorities as— (a) may be agreed— (i) subject to paragraph (ii) below, between those successor authorities which are authorities constituted under section 2 of the 1994 Act; and
(ii) in relation to any property which immediately before 1st April 1996 is used wholly or partly for the purposes of a function which on and after that date will be exercised by a joint board, between those successor authorities which are authorities constituted under section 2 of the 1994 Act and that joint board, in each case on such terms and subject to such conditions (if any) as may be so agreed;
(b) in the absence of such agreement, may, on the application of one or more of the successor authorities, be determined by the property commission, on such terms and subject to such conditions (if any) as the commission may determine.
(2) Any relevant property of a disaggregating authority which does not, on 1st April 1996, transfer to and vest in a successor authority by virtue of paragraph (1) above shall, subject to paragraph (3) below, on that date transfer to and vest in the relevant successor authority.
(3) Where before 1st April 1996, the destination of any relevant property vested in a disaggregating authority has been referred to the property commission for determination, but such determination has not by that date been made, the property commission may— (a) before that date make a direction as to the rights of use which a successor authority which is not the relevant successor authority is to have in that property in the event of that property vesting in the relevant successor authority by virtue of paragraph (2) above; and
(b) on and after 1st April 1996 and before 31st December 1997 make a direction that the authority to whom, by virtue of paragraph (2) above, that property was transferred shall transfer it to such other successor authority as may be specified, on such terms and subject to such conditions (if any) as may be so specified.
(4) In paragraphs (2) and (3) above, the "relevant successor authority" is— (a) in respect of heritable property and corporeal moveable property situated, immediately before 1st April 1996, within the area of the particular disaggregating authority concerned, the successor authority constituted under section 2 of the 1994 Act in whose area that property is so situated or, where the property commission nominates another successor authority for that purpose, that authority;
(b) in respect of heritable property and corporeal moveable property situated, immediately before 1st April 1996, outwith the area of the particular disaggregating authority concerned, a successor authority nominated, whether in respect of such property generally or of specific property, for that purpose by the property commission; and
(c) in respect of incorporeal moveable property, a successor authority nominated, whether in respect of such property generally or of specific property, for that purpose by the property commission.
Procedure as to reaching agreement relating to transfers
4.—(1) Each disaggregating authority shall, not later than 20th October 1995— (a) provide to its successor authorities which are constituted under section 2 of the 1994 Act— (i) a list of its relevant property; and
(ii) a list of so much of its property as, in the opinion of that disaggregating authority, will transfer to and vest in an authority (or the Administration, as the case may be), by virtue of articles 8 to 12 below;
(b) provide to a successor authority which is a joint board, a list of so much of its property as in its opinion will immediately before 1st April 1996 be used wholly or partly for the purposes of functions which will on and after 1st April 1996 be exercisable by that joint board; and
(c) provide to the Administration, a list of so much of its property as in its opinion will immediately before 1st April 1996 be used wholly or partly for the purposes of functions which will on and after 1st April 1996 be exercisable by the Administration.
(2) In the application of paragraph (1) above to a successor authority which is a joint board and is constituted after 20th October 1995, that paragraph shall apply as if, for the reference to that day, there was substituted the day seven days after the disaggregating authority concerned receives notice of the constitution of the joint board concerned.
Determination by the property commission
5.—(1) In determining for the purpose of article 3 above the authority to which relevant property should be transferred (or in the making of a direction thereunder, as the case may be), the property commission shall take into account and shall apply, so far as it considers it appropriate in the particular circumstances to do so, the principles set out in paragraph (2) below.
(2) The principles referred to in paragraph (1) above are— (a) that heritable property situated within the area of a disaggregating authority should (save where the property commission considers that such property should transfer to and vest in a joint board, or the Administration, as the case may be) transfer to, and vest in, the authority constituted under section 2 of the 1994 Act within whose area the property is situated;
(b) that heritable property situated outwith the area of a disaggregating authority should transfer to, and vest in, the authority which, in the opinion of the property commission (having regard in particular to patterns of use prior to 1st April 1996) is likely to make the greatest use of that property on and after that date;
(c) subject to sub-paragraph (e) below, that moveable property should transfer to (and, where appropriate, be divided between) the authority or authorities which will, on and after 1st April 1996, have the function for the purposes of which that property was used or held immediately before that date and in relation to the area for which that property was so used or held;
(d) that, where the authority to which the relevant property should be transferred in terms of sub-paragraph (c) above cannot be identified or the application of sub-paragraph (c) above is not appropriate, the destination of moveable property shall be determined taking account of— (i) the need to ensure, as far as possible, the continued provision of services after 1st April 1996 and to act fairly as between authorities;
(ii) the identity of the authority which, on the basis of the pattern of use prior to 1st April 1996, is likely to be the major user of that property after that date;
(iii) the location of the property immediately before 1st April 1996 and the authority to which the building in which or the land on which it is situated will transfer;
(iv) the authority or authorities by whom staff who, immediately before 1st April 1996, use the property will be employed;
(v) any connection between items of property which suggests that those items should be transferred to the same authority; and
(e) that property consisting of shares (or an interest in shares held by a nominee) in an incorporated company (whether a company within the meaning of the Companies Act 1985[6] or not) should be transferred to or, as the case may be, divided between— (i) where the company is a company whose business relates substantially to the exploitation of buildings or other heritable property, the successor authorities constituted under section 2 of the 1994 Act for the areas within which the heritable property in question is situated;
(ii) in other cases, the successor authorities constituted under section 2 of the 1994 Act for the areas within which the business of the incorporated company in question is conducted.
User rights
6.—(1) The property commission, in relation to the transfer of any heritable property by virtue of a determination of its under article 3(1) above, or a direction made under article 3(3) above, may make that determination or, as the case may be, direction conditional upon the authority to which that property is proposed to be transferred entering into an agreement with such other authority or authorities as the commission may determine for the use of the property (for such period and upon such terms as, in the absence of agreement, the commission may determine) by that other authority or by those other authorities.
(2) In considering whether such a condition as is referred to in paragraph (1) above would be appropriate in relation to any property, the property commission shall take into account in particular the extent (if any) to which immediately before 1st April 1996, that property was occupied or used in whole or in part for purposes of a function which will on and after 1st April 1996 in relation to a particular area be a function of an authority other than that to which the property is proposed to be transferred.
Right to share in proceeds of disposal
7.—(1) The property commission if requested to do so by one or more of the successor authorities in relation to the transfer of any heritable property by virtue of a determination of its under article 3(1) above, or a direction made under article 3(3) above, may make that determination or, as the case may be, direction conditional upon the authority to which that property is proposed to be transferred entering into an agreement whereby it undertakes either— (a) to dispose of that property within such period, in such manner and on such terms and subject to such conditions as the commission may specify and to make payment of such part of the proceeds of that disposal as may be so specified to such authorities, and in such proportions, as may be so specified; or
(b) to make payment, within such period and in such manner as the commission may specify, of such sums, and to such authorities, as may be so specified.
(2) In any case described in paragraph (4) below, the property commission shall impose such a condition as is referred to in paragraph (1) above unless by reason of the particular circumstances it considers it inappropriate to do so.
(3) In any case other than that described in paragraph (4) below, the property commission shall not impose such a condition as is referred to in paragraph (1) above unless by reason of the particular circumstances it considers it appropriate to do so.
(4) The case referred to in paragraphs (2) and (3) above is that— (a) the property immediately before 1st April 1996 directly served an area including the areas or part of the areas of more than one successor authority; and
(b) any staff employed at that property are transferred as at 1st April 1996 to the employment of more than one of the successor authorities concerned rather than to any one successor authority.
Property of Police Authorities
8. On 1st April 1996, all property which is vested in a disaggregating authority by virtue of, and wholly for the purposes of, its functions as a police authority shall transfer to and vest in the joint police board constituted by virtue of section 21B of the Police (Scotland) Act 1967[7] in respect of the area of that disaggregating authority.
Property of Fire Authorities
9. On 1st April 1996, all property which is vested in a disaggregating authority by virtue of, and wholly for the purposes of, its functions as a fire authority shall transfer to and vest in the joint board constituted by virtue of section 147 of the Local Government (Scotland) Act 1973[8] in respect of the area of that disaggregating authority.
Valuation authorities
10. On 1st April 1996, all property— (a) which is vested in a disaggregating authority (other than Strathclyde Regional Council) by virtue of, and wholly for the purposes of, its functions as a valuation authority; or
(b) which is vested in a joint committee established under the Valuation (Combination of Councils) (Scotland) (No.2) Order 1974[9], shall transfer to and vest in the joint board which is by virtue of the Valuation Joint Boards (Scotland) Order 1995[10] to be, with effect from that date, the valuation authority for the area of the disaggregating authority or joint committee, as the case may be.
Scottish Children's Reporter Administration
11.—(1) On 1st April 1996, all such property as is vested in a regional or islands council by virtue of and wholly for the purposes of— (a) their functions under section 34(3) of the Social Work (Scotland) Act 1968[11]
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(b) their function of providing accommodation and facilities for, or otherwise facilitating or supporting the performance of the functions of, reporters appointed under subsection (1) of section 36 of the said Act of 1968[12]
or staff provided in pursuance of subsection (6) of that section, shall transfer to and vest in the Administration.
(2) Without prejudice to paragraph (1) above, on 1st April 1996, all property of reporters appointed under section 36(1) of the said Act of 1968 shall transfer to and vest in the Administration.
(3) In relation to any property which, immediately before 1st April 1996, a regional or islands council has partly for the purposes of the functions referred to in paragraph (1)(a) and (b) above, articles 3, 5, 6 and 7 above shall apply as if— (a) the regional or islands council concerned were a disaggregating authority; and
(b) the Administration were a successor authority.
(4) Each authority specified in column 1 of Part I of Schedule 2 to this Order shall, not later than 20th October 1995, provide to the authority specified in column 2 of that Part of that Schedule opposite that entry in column 1 and to the Administration, a list of so much of its property as in its opinion will immediately before 1st April 1996 be used wholly or partly for the purposes of functions which will on and after 1st April 1996 be exercisable by the Administration.
(5) Each islands council shall, not later than 20th October 1995, provide to the Administration, a list of so much of its property as in its opinion will immediately before 1st April 1996 be used wholly or partly for the purposes of functions which will on and after 1st April 1996 be exercisable by the Administration.
Common good
12. On 1st April 1996 any property which immediately before that day was held by an authority as part of the common good shall transfer to and vest in the authority within whose area was situated the burgh of whose common good that property (or property which has been replaced by that property) formed part on 15th May 1975.
Michael B Forsyth
One of Her Majesty's Principal Secretaries of State, Scottish Office
St Andrew's House, Edinburgh
25th September 1995
Notes:
[1] 1994 c. 39. back
[2] 1995 c. 25. back
[3] S.I. 1995/1476. back
[4] 1972 c. 11. back
[5] See S.I. 1995/2500. back
[6] 1985 c. 6. back
[7] 1967 c. 77. Section 21B was inserted by the 1994 Act, section 34. back
[8] 1973 c. 65. Section 147 was substituted by the 1994 Act, section 36. back
[9] S.I. 1974/1565. back
[10] S.I. 1995/2589. back
[11] 1968 c. 49. back
[12] Section 36(1) was repealed in part by the Local Government (Scotland) Act 1973 (c. 65), Schedule 27, paragraph 185(a) and Schedule 29. back
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