Rhif | Eitem | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Contents 1 General 2 Acquisitions, Disposals & Leases - Authority 3 Definition of Surplus/Under-used Land 5 Disposal - Best Consideration 6 Invitation of Offers – Disposal of Land 7 Evaluation and Acceptance of Offers 12 Appendix 1 - Concessionary Letting Policy 13 Appendix 2 - City and County of Swansea Community Asset Transfer Policy 2021 |
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
General 1 These Rules will be followed when dealing with all acquisitions and disposals of Land, whether freehold, leasehold or by grant of a tenancy, except as provided below. 2 In these Procedure Rules “Land” shall mean all and any interest in land (including buildings), or any right in, on, over or under land. 3 These Rules apply to: a) The freehold acquisition or disposal of Land; b) The appropriation of Land in accordance with paragraphs 4.5 and 4.6 below; c) The grant of a lease or tenancy exceeding 7 years in duration; and d) The taking of a lease or tenancy of any duration. 4 These procedure Rules do not apply: a) To disposals under the Leasehold Reform Act 1967, Leasehold Reform Housing and Urban Development Act 1993, Commonhold and Leasehold Reform Act 2002. b) To the renewal or restructuring of an existing lease or tenancy. c) Where Cabinet decides they will not apply. 5 Note: Where there is any conflict between these Procedure Rules and s.123 LGA 1972 or any other mandatory statutory provision, the relevant statutory provision must be followed. |
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Acquisitions, Disposals & Leases - Authority In accordance with the Scheme of Delegation as set out in Part 3.1 of the Constitution, and subject to paragraph 5.4 below, the authority for approving disposals, acquisitions and leases shall be vested in: a) Responsible Officers in relation to: i. Acquisition of freehold or leasehold property (where a premium only is payable) up to £1,000,000; ii. Acquisition of freehold or leasehold property where a rent is payable – up to £250,000 per annum; iii. Disposal of freehold property or leasehold property (where a premium only is payable) up to £1,000,000; iv. Disposal of leasehold property where a rent is payable – up to £250,000 per annum. b) In cases where the consideration is not straightforward such as involving varying rents or a combination of rental and premium the Head of Property shall assess the total capital value of the transaction to establish if such value exceeds the limits of this delegation. c) Subject to any limitations imposed by the Leader, all Responsible Officers may authorise another Officer to exercise their delegated functions provided that the Responsible Officer has line management responsibility for that Officer. In those circumstances it is expected that a written “chain of authority” will be maintained. |
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Definition of Surplus/Under-used Land 1 Identification of surplus/under-used Land is the responsibility of individual Departments. The Head of Service should keep all Land holdings under review and where the Land is deemed surplus or under-used Land shall prepare a report to be approved by Head of Property Services in consultation with the relevant Cabinet Member which states that the Land is surplus to requirements or under-used Land. 2 In making a decision to determine whether Land is surplus, the Head of Service should consider if:
a)
The Land is currently required
to deliver their operational functions. b) There is a clearly evidenced plan to use the Land to deliver their future operational functions. c) The Land is held for commercial purposes and/or is integral to the continuity of service delivery. d) The Land is vital for business contingency, in line with the Departments strategic and operational plans. If Land satisfies any of the above criteria it is unlikely surplus. 3 Land may be deemed to be surplus to the Council’s requirements if: a) It is not used for current delivery or required for future delivery of the Departments operational functions and policies. b) The Department has no formal approved strategy and timetable for bringing the Land back into permanent full operational use. c) The Land makes no contribution to the delivery of; i. a Council’s service, or ii. a strategic, financial, corporate objective. d) An alternative site or method of service delivery i.e. Community Asset Transfer (Appendix 2) has been identified which would be more cost effective in delivering the Departments service. e) It will not contribute to the provision of a sustainable pattern of development. 4 Land is deemed to be under-used if: a) Part of the land is vacant and is likely to remain vacant for the foreseeable future; or b) The income being generated from the land is consistently below that which could be achieved from: i) Disposing of the land and investing the income; ii) An alternative use; iii) Intensifying the existing use; or c) Only part of the land is used for service delivery and this could be delivered from an alternative site or by alternative methods. |
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Land Identification 1 Land for possible disposal may be identified in the following ways: e) Through the Asset review activity undertaken by the Head of Property Services f) Through a structured corporate property portfolio or area review; g) Through Service Units declaring specific sites as being surplus to requirements; h) Through direct property enquiries to the Council; i) Where an under-used asset is generating an income, a cost/benefit analysis has been carried out to establish whether it is in the Council’s best interests to dispose of the site. 2 Once potential land has been identified as surplus or under used the Head of Property Services will undertake an initial feasibility test to establish if the land could be disposed of to generate a capital receipt for the general fund/HRA. 3 If the initial feasibility test indicates it is possible then there will be further consultation with Planning and Highways colleagues and with Legal Services to generate a Report on Title to establish if there are any legal constraints, including but not limited to Title restrictions and legislative restrictions e.g. disposal of public open space and school playing fields. 4 Subject to these investigations and if the Land has been declared surplus or underutilised for operational purposes by a service department, then there will be discussion between the appropriate Head of Service and the Head of Property Services, for an appropriate handover for all relevant premises budgets to enable the ongoing management of the asset up to disposal and then the appropriate saving being returned to the Corporate Centre. At that time, the Head of Property Services will also discuss with the Chief Legal Officer whether a formal appropriation is required or desirable prior to disposal. 5 The Head of Property Services and Head of Housing and Public Protection (in the case of Land held under the HRA) shall have delegated authority to appropriate Land for any purpose under the provisions of Section 122 of the Local Government Act 1972 or Section 232 of The Town and Country Planning Act 1990, subject to any statutory limitations and to the written agreement of the relevant Director or Head of Service who has responsibility for the Land prior to its appropriation. 6 Where the Land is HRA land consideration must be given when appropriating such Land to the Local Government and Housing Act 1989 (S74 and Sch 4) and whether such Land may be appropriated pursuant to the general powers under Section 122 of the Local Government Act 1972. Further, that consideration is given to whether consent of the Secretary of State or the Welsh Government is required for the disposal of such Land pursuant to S32 or S43 of the Housing Act 1985 (as amended). |
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Disposals - Best Consideration
1
The general power of disposal is section 123 of
the Local Government Act 1972 which gives a local authority the power to
dispose of land held by it in any manner
it wishes provided that the local authority achieves the best consideration that can reasonably be
obtained except where the disposal is for a
short tenancy (the grant of a term not exceeding seven years or the assignment of a term which has not more
than seven years to run) or the local authority has the
consent of the Secretary of State or the Welsh Ministers 2
The Secretary of State and the Welsh Minsters
have issued a general consent for disposals of land under section 123 for
less than best consideration. This allows a local authority to dispose of
land for less than best consideration if it considers
that the disposal will contribute to the promotion or improvement of the economic, social or environmental
well-being of its area and the extent of the undervalue is no more than £2m. 3
Subject to the exemptions set out in paragraph 5.1, there is a legal obligation as noted above placed upon the Council to
achieve the best consideration
reasonably obtainable for land. Best
consideration does not necessarily mean
the highest financial premium and other matters of commercial or monetary value
(such as an overage provision) can be taken into account when assessing best
consideration but caution will need to be exercised and a full review of relevant case law will need to be
undertaken. An alternative may
be to utilise the General Disposal Consent above. It is also possible to seek approval
from Welsh Government to a particular transaction.
4
Any disposal at undervalue other than a disposal
in accordance with a Concessionary Lettings Policy (Appendix 1) shall require
Cabinet approval and shall be set out in a Cabinet Report and include the
following: a) the policy background supporting the proposal; b) the potential consequences of not approving the disposal; c) whether the disposal needs the consent of Welsh Government or falls within the General Disposal Consent; d) whether it confers any commercial advantage on the prospective purchaser; e) details of the sale price and any relevant terms of the disposal 5
Any disposal of public open space shall comply with the requirements of Section 123 of the Local Government Act 1972. 6
Any disposal of playing fields shall comply with
the requirements of the Playing Fields (Community
Involvement in Disposal Decisions) (Wales) Regulations 2015. Any disposal of allotments shall comply with the
Allotments Act 1925. 7
Where a disposal has the potential (a) to confer
an economic advantage that is not available on market terms and (b) to affect
international trade, it must comply with the UK-EU Trade and Cooperation
Agreement, World Trade Organisation agreements and/or other Free Trade
Agreements as applicable 8
Where a disposal is or is part of a public
contract within the scope of the Public Contracts Regulations 2015, the
requirements of those Regulations shall be complied
with. 9
It is the Head of Property Services who will be
providing the best consideration certification but if there are
situations where officers wish to consider a lower financial bid in terms of overall best consideration, the Chief
Legal Officer must be consulted and the
appropriate legal implications advice given. 10
In any dealings with Land, proper regard will be
had to professional advice from the Head of Property Services and/or
the Chief Legal Officer (as appropriate) at all relevant
stages during the process. 11
No disposal shall progress except in consultation with the Head of
Property Services. 12
Procedures will be followed precisely so that probity and
accountability can be demonstrated and value for money achieved. Further and in
order to provide for transparency and a proper audit trail, every procedure
step or decision taken under these rules must be recorded in writing and be
available for inspection at any time. |
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Invitation of Offers - Disposal of Land 1 The Head of Property Services will determine a marketing strategy where appropriate, either in-house or through an appropriate agent. Where possible, costs (both surveyors and legal) will be recovered from the eventual purchaser. 2 The timing of any marketing/disposals will need to be considered against the background of the Council’s budgetary requirements, together with the current state of the market. Before recommending that a disposal is to proceed, the following factors are to be taken into consideration. a) Current market conditions; b) Potential for the site value to increase in the future; c) Current and proposed Development Plans; d) Any legal constraints or factors. 3 In any disposals of Land which do not fall within the delegated authority of Responsible Officers (as defined in this Constitution) and have to be reported to Cabinet, the Responsible Officers shall consult with the relevant Electoral Ward Members and any responses received from Electoral Ward Members shall be reported to Cabinet. On any proposed disposals or acquisitions falling within the delegated authority of the Responsible Officers, the officers shall consult with Electoral Ward Members where the proposal under consideration would involve a change of use in the Land requiring planning consent. Any consultation required to be carried out under this paragraph shall be in writing (letter or e-mail) and any Members consulted shall be given 10 working days in which to respond. If there is no response within this timescale it shall be assumed that the member has no comments to make. Responsible officers shall take any consultation responses received into account in making their decision. 4
No offers for the disposal of land will be
invited except with the prior approval of the Head of Property Services. 5
The Head of Property Services will determine whether disposals will be made by way of a sealed offer, private treaty or
auction and such determination will be made as to the most appropriate method
of disposal. 6
If there has been no marketing of the Land or only one
person has indicated an interest to purchase, the
Council will not proceed to a disposal of the Land by private treaty unless the
Head of Property Services is satisfied that the disposal would be in accordance
with the applicable statutory requirements.
In the case of a disposal under s123 of the Local
Government Act 1972 the Head of Property
Services will need to be satisfied that the disposal would either (i) be for the best consideration that can reasonably be
obtained, (ii) meet the requirements of a general or specific consent granted
by the Welsh Ministers, or (iii) be for a short tenancy (as defined). In considering this, the Head of Property
Services may have regard to the
following matters (among others): a)
The
robustness of the valuation evidence. b)
The likely
market for the Land now and in the future given its relevant physical, legal or other
characteristics c)
The potential for the Land to be transferred
to and used by a community council or Third Sector/Community Group in
accordance with the Community Asset Transfer Policy set out in Appendix 2. d)
The responses (if any) received by the Council following
reasonable marketing of the Land. e)
Whether the disposal would achieve a corporate
objective or contribute to the promotion or improvement of the economic, social
or environmental wellbeing of people or communities in its area (taking into
account all considerations including subsidy controls). 7
Where Land is to be the subject of a marketing
exercise The Head of Property Services will decide upon the method of
advertisement as he thinks
appropriate. 8
Any advert will, generally (but with a general
discretion in favour of the Head of Property Services),
set out: a)
A description
of the Land; b)
The terms and conditions upon which offers are to be submitted; c)
Whether further particulars may be obtained; d)
The last date and time when offers
will be received; e)
The mechanism and form of receipt and
consideration of offers. |
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Evaluation and Acceptance of Offers 1
The final offer that represents the best consideration obtainable
by the Council will be accepted (save for any utilisation of any relevant
general disposal consent or reference to Welsh Government in respect of any
proposed disposal at an under value). 2
If there is to be a sale by auction, a designated employee may be
authorised under the Scheme of Delegation for that particular sale. This authorisation will extend to making a
decision on reserve price and to sign a contract at the auction providing that
this accords with the general principles of these Procedures Rules. 3
Nothing in these rules binds the Council to accept any offer. |
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Completion of Contracts 1
All contracts and transactions for disposals of Land (and for the
avoidance of doubt this shall include any letting licence lease or hire
agreement notwithstanding that such disposal is to a charitable organisation or
one in which the Council has a close working relationship) will be in writing
and executed in accordance with Article
14 of the Constitution and as may be required in law to give effect to the
transaction. 2
Only the Head of Property Services may issue instructions to the
Chief Legal Officer for the preparation and completion of documentation in
respect of any transaction in land. 3
Every contract will comply with relevant UK, EU, Welsh Government
Law, Directives and any appropriate guidance. |
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Retention of Documents 1
Deeds, title documents, leases, charges on land, guarantees and
documents of a similar nature may only be destroyed with the consent of the Chief
Legal Officer. 2
Details of all offers will be retained for a period of six years. |
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Acquisition of Property 1
The general power of acquisition of land by agreement
is section 120 of the Local
Government Act 1972 which gives a local authority the power to acquire by agreement any land, whether situated
inside or outside their area, for the purposes
of any of their functions under the Local Government Act 1972 or any other enactment or for the benefit, improvement or development of their area. 2
A local authority also has the power to acquire land
compulsory in accordance with section
121 of the Local Government Act 1972 or by appropriation
in accordance with section 122 of the Local Government Act 1972. 3
On each occasion that the Council wishes to acquire Land the
relevant Responsible Officer will instruct the Head of Property Services to
negotiate, settle or confirm the terms of such acquisition after taking into
account any relevant statutory provisions or guidance and any advice from the
Chief Legal Officer. 4
Once terms are finalised, the Head of Property Services will
instruct the Chief Legal Officer in writing to proceed with an acquisition of
the Land including for avoidance of doubt the utilisation of compulsory
purchase powers. 5
The terms of such acquisition will be in accordance with the
market value of the interest to be acquired and the
body of statute and case law together known as the “compensation code” and in
accordance with the principles of best value. 6
The terms of acquisition may only be approved in writing by the
Head of Property Services save for acquisition by auction or sealed offer
wherein a designated employee may be authorised in writing by the Head of
Property Services for that particular acquisition to make an offer that accords
with the general principles of these Procedure Rules. |
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Miscellaneous 1
In considering and determining all matters under these Rules the Head
of Property Services shall have regard to taxation law and practice and in
particular to VAT; further the Head of Property Services will be expected to
seek the advice of the Chief Legal Officer and/or the Chief Finance Officer (as
appropriate) and shall have a duty to so consult prior to any disposal. 2
In the absence for whatever reason of the Head of Property Services
these Rules shall be read in conjunction with the Scheme of Delegation set out
in Part 3 of the Constitution. |
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Appendix 1 - Concessionary Lettings Policy Background 1
The Council has in the past, leased land and buildings at less
than full market value. Often these disposals have been to the trustees of
leisure, recreational or sports clubs and societies who have limited resources.
In addition to rent reviews and lease renewals which occur with such previous
lettings, a number of new requests are received from similar organisations for
disposals at less than market value. The land disposal rules set out the
guidance / rules which the Interim Director of Place or his nominee should
normally follow. 2
In addition to the Land Disposal Rules the Local Government Act
1972 (Section 123) provides that a Council should not dispose of land other
than at the best consideration reasonably obtainable without the specific
consent of the Welsh Government or the application of the General Disposal
Consent. This applies to leases
exceeding 7 years in duration. 3
The General Disposal Consent (Wales) 2003 Order
came into force on 31 December 2003. This Order removed the
former requirement for the Council to seek a specific consent for a disposal at
an undervalue where the Council considers that the disposal is in the interests
of the economic, social or environmental well-being of the whole or part of its
area, or any or all persons resident or present in its area and the undervalue
is up to and including £2,000,000 or less. 4
Under Part 3 of the Council’s Constitution
a Responsible Officer has delegated authority to exercise functions for which
he or she has budgetary, managerial, operational or statutory authority
provided that the Cabinet does not itself make a decision in a particular case.
5
The Audit Commissions Report on Local Authority Property
Management highlighted the need for any such concessionary disposals to be
identified and the amount of the concession to be quantified. There is also a practical need for all such
disposals to be identified and recorded in this way, if consistency between the
amounts of concessions granted is to be maintained. In view of the current financial pressures
faced by the Council it is appropriate to consider
this financial burden on the Council and in addition a periodic review of these
allowances should be undertaken as a matter of good management practice. Application of
Policy 1 It is recommended that the
following approach is adopted as a consistent basis for implementing the policy
framework described above subject to the LTPR that: a)
The full market value of the interest to be leased should be
assessed. This could occur at a rent
review, at a lease renewal or at the proposed granting of a new tenancy. The market rent would be assessed in the
usual way taking account of the nature of the property, its current state, the
interest which is to be created with the obligations to be carried out by both
parties and any other relevant factors; b)
The tenant who is seeking a reduction from that market value should
be asked to identify all the relevant circumstances in support of his case,
including alignment with the Council’s corporate objectives, accounts and
financial evidence relating to the activity to be undertaken either on or
relating to the premises. This would also require a declaration of any grant or
assistance which has been obtained from Council or any other party; c)
The Council shall allow a rent concession only when it can be
clearly demonstrated that such grant is necessary for the organisation to
continue to deliver its service. There shall be an expectation that grant
recipients will develop a financial strategy steadily to diminish the level of
grant required. This strategy must be
demonstrated as part of the grant application; d)
The level of rent grant should be the minimum necessary to ensure
continuity of the operation and in any event should not exceed 75% of the
rental value of the premises. The precise level shall be determined by careful
analysis of the current financial position and financial strategy of the
organisation; e)
Ideally each payment of rent grant shall be given explicitly. The
mechanism for this will be to charge the full rental value for the premises and
separately make an explicit grant payment to that organisation; f)
Decisions whether to grant rent concessions for leases of less
than 7 years and, if so, at what level, will be undertaken
by the relevant operational Head of Service and the Head of Property Services,
after consultation with the relevant Cabinet or Council Members. Ultimately however under the LTPR, it is the responsibility
of the Head of Property Services to determine whether a concession should be
granted. |
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Appendix 2 - City and County of Swansea Community Asset Transfer Policy 2021 City and County of Swansea Community Asset Transfer Policy 2021 What is a Community Asset Transfer? Community Asset
Transfer is an established mechanism used to enable the community ownership and
management of publicly owned land and buildings. The General
Disposal Consent allows a range of public bodies to transfer the ownership and
management of land and buildings they own to local communities at ‘less than
best consideration’ – at less than full market value. Communities can
enter into discussions with public bodies about Community Asset Transfer where
it is their intention to promote social, economic or environmental well-being. Any proposal for a Community Asset Transfer
must be supported by a Head of Service and the relevant Cabinet
Member. If the proposal does not have internal
support then it cannot proceed. If supported then under the Council’s Land Transaction Procedure Rules (LTPR), the Head of Property Services must be consulted. The latter will assess the status of the property, its tenure, open market value
and potential for realisation of a
capital receipt and liaise with the supporting
department. Property Services and Finance must be
consulted prior to reporting
to consider the financial implications of the CAT and to ensure it does not breach subsidy controls. Legal,
financial and any possible Equality and Engagement Implications will also
need to be considered and discussed at this stage. The supporting department must then be willing to present a report to Cabinet detailing how the proposal
benefits both the Council and the community
by promoting social, economic or environmental well-being in the relevant
area. The ultimate aim
of Community Asset Transfer is community empowerment – that is, to ensure that
land and buildings are retained or transformed for public
benefit through community asset ownership and management. Purpose of this Policy ·
This Policy describes
how the Authority will work with communities to support the transfer of
Authority-owned and operated land and buildings to town/community council or
third sector organisations, for the benefit of the community. ·
This Policy explains
what is meant by the term Community Asset Transfer and
sets out how it will be achieved. It provides a clear framework to support the
transfer of land and buildings from the Authority to a town/ community council
or a strong community based group of local people, and will maximise the
likelihood that the transfer will be successful and sustainable in the longer
term. ·
This Policy is not generally intended to cover property that is surplus
to the Authority’s requirements; such property should continue to be disposed
of in accordance with the Land Transaction Procedural Rules. ·
This Policy will apply
to all potential Community Asset Transfers, but where the expression of
interest was received prior to adoption of the Policy,
any necessary adaptations to this Policy will be made to accommodate previous
different practice. Asset Transfers within the City and County of Swansea The Authority recognises that:
Rationalisation of Assets The Authority is continually reviewing its
property assets and over recent years there has been
an ongoing rationalisation programme. Those assets which have been, and will in
the future be identified as surplus to the Local Authority’s requirements, will
continue to be disposed of in accordance with existing policies, which are
described in the Land Transaction Procedure Rules Through discussions with service providing
departments the Authority is also aware of properties that could
potentially be run and managed by suitable community groups, Town and Community
Councils and other local groups. This Policy is intended to cover those assets which are being used for current service delivery and
could be managed more effectively by local groups. Given the current financial pressures on the
public sector it is anticipated that a number of non-statutory services will
need to be delivered in different ways and it is expected that the delivery of
these services by community based organisations (and
the assets necessary to deliver those services) will play a significant role in
reducing future costs. Community Asset Transfer – Key Principles The Authority’s procedures on Community Asset
Transfer are underpinned by the following principles:
-
Who can apply? Expressions of interest (see Appendix 2) are welcome from community and
voluntary sector groups or Town / Community Councils. Ideally
interested parties should meet the following criteria:
The basis of transfer
How Applications are Assessed and Decisions Made Community and voluntary sector groups or Town
/ Community Councils applying for asset transfer will need to set out some or
all of the following:
The table below summarises the process the Authority will follow where
an asset transfer request has been made:-
Appendix 1 COMMUNITY ASSET TRANSFER PROCESS Appendix 2 Expression of Interest
for the Transfer of a Community Asset.
|