Local Government etc. (Scotland) Act 1994

92 Transfer schemes: general.S

(1)A transfer scheme may—

(a)define the property, rights and liabilities to be transferred to the transferee—

(i)by specifying the property, rights and liabilities in question;

(ii)by specifying all the property, rights and liabilities referable to a particular part of the transferor’s functions; or

(iii)partly in the one way and partly in the other;

(b)provide that any rights or liabilities specified, or described, in the scheme shall be enforceable by or against either the transferor’s successor or the transferee or by or against both the successor and the transferee;

(c)impose on the successor or the transferee an obligation to enter into such written agreements with, or execute such other instruments in favour of, as the case may be, the transferee or the successor or such other person as may be specified in the scheme;

(d)make appropriate supplemental, incidental, consequential or transitional provision.

(2)An obligation imposed by a provision included in a transfer scheme by virtue of paragraph (c) of subsection (1) above shall be enforceable by civil proceedings by the successor or the transferee or the other person for an interdict or for any other appropriate remedy.

(3)A transaction of any description which is effected in pursuance of any such provision as is mentioned in subsection (2) above—

(a)shall have effect subject to any enactment which provides for transactions of that description to be registered in a statutory register; and

(b)subject to paragraph (a) above, shall be binding on all other persons notwithstanding the transaction would, apart from this subsection, have required the consent or concurrence of any other person.

(4)A right of pre-emption, right of irritancy or similar right affecting land (including, without prejudice to the generality of the expression “similar right”, any right under a clause providing for return or reversion in specified circumstances) shall not operate or become exercisable as a result of any transfer of land—

(a)by virtue of a transfer scheme;

(b)by or under an agreement or instrument made or executed pursuant to any provision of Schedule 11 to this Act or pursuant to any directions given, or requirement imposed, under that Schedule; or

(c)pursuant to an obligation imposed by a provision included in a transfer scheme by virtue of paragraph (c) of subsection (1) above;

and, without prejudice to paragraph 8 of that Schedule, any such right shall accordingly have effect in the case of any such transfer as if the transferee in relation to that transfer were the same person in law as the transferor and as if no transfer of the land had taken place.

(5)Subsection (4) above shall have effect in relation to—

(a)the grant or creation of an estate or interest in, or right over, land; or

(b)the doing of any other thing in relation to land,

as it has effect in relation to a transfer of land; and any reference in that subsection or in the following provisions of this section to the transferor or the transferee shall be construed accordingly.

(6)In any case where any such right as is mentioned in subsection (4) above would, apart from that subsection, have operated in favour of, or become exercisable by, a person, but the circumstances are such that, in consequence of the operation of that subsection, the right cannot subsequently operate in favour of that person or, as the case may be, become exercisable by him, such compensation as may be just shall be paid to him by the transferor, the transferor’s successor or the transferee (or, in so far as the particular application of these provisions admits, by any two or by all of them) in respect of the extinguishment of the right.

(7)Any dispute as to whether any, and (if so) how much, compensation is payable under subsection (6) above, or as to the person to whom or authority by whom it shall be paid, shall be referred to and determined by an arbiter appointed by the Lord President of the Court of Session.

(8)Subject to subsection (10) below, if it appears to the regional council, or as the case may be to the islands council or the Board, that a person is, or may be, entitled to compensation under subsection (6) above—

(a)they shall by written notice inform the person that he is, or may be, so entitled and shall invite him to make such representations as he wishes to them within fourteen days after the date of issue of the notice; or

(b)where they do not know (either or both)—

(i)the name of the person concerned;

(ii)his address,

they shall publish, in such manner as they consider appropriate, a notice containing information about the interest affected and inviting any person who thinks that he is, or may be, entitled to compensation in respect of the interest to make such representations as he wishes to them by a date which they shall specify in the notice, being a date not less than twenty-eight days after the date of publication.

(9)Any reference in this Part of this Act to a transferor’s successor is inapplicable where the transferor is the Board and is otherwise to be construed as a reference to the council for any local government area named in column 1 of Schedule 1 to this Act which is wholly or partly conterminous with the area of the transferor.

(10)Where the last of the fourteen days after the date of issue of a notice under paragraph (a) of subsection (8) above falls on or after the transfer date, or the date specified in a notice published under paragraph (b) of that subsection so falls, and the representations are invited by—

(a)a transferor other than the Board, the notice shall direct that any such representations be made to the transferor or, on or after that date, to the transferor’s successor;

(b)the Board, the notice shall direct that any such representations be made to the Board or, on or after that date, to a specified transferee of the Board (the transferee in question being that which appears to the Board to be the most appropriate in the circumstances).