The rules are known as the Crichel Down rules after the Crichel Down affair in 1954 when a Government Minister, Sir Thomas Dugdale, resigned because his department had not honoured a Parliamentary undertaking to offer land back to the former owner.
The latest version of the Crichel Down rules in Scotland have now been published. They have been updated to take account of the last version of the rules that apply in England and Wales, and various recent cases. In addition, the way the rules are to apply to local authorities, and certain other bodies, has changed.
Who do they apply to?
The Crichel Down rules apply to UK Government departments, the Scottish Ministers, Scottish Government directorates including executive agencies and/or other non-departmental public bodies, who are selling land.
It is now also "expected" that local authorities and statutory undertakers also follow the rules. This is a major change as local authorities have generally not followed the rules, as the previous version only “commended” local authorities to do so.
It is also recommended that the rules are applied by bodies in the private sector to which public landholdings have been transferred, for example in privatisation.
The Crichel Down Rules
The rules are fairly straightforward (you can read more here). However to assist you in working out whether the rules apply, we have created an elimination chart showing key stages in working out whether the rules apply to any particular disposal of surplus land.
If the rules do not apply
If the rules do not apply then the former owner must still be notified accordingly – this is a new requirement, which will expose decisions to greater scrutiny.
If the rules do apply
If the rules do apply then specific disposal procedures must be followed as set out in rules 17-25. Key points from these rules include:
Different procedures apply depending on whether the former owner and their address are known.
If the address is known - Write to the former owner and give them two months to indicate if they wish to buy (Rule 18).
If the address is not known - Advertisements inviting the former owner to contact the disposing department must be placed in accordance with the advertising/tracing procedures summarised below (Rules 19 and 20):
• Notices must be placed in at least two issues of a local newspaper, in the Edinburgh Gazette and on the disposing department's website.• In addition for agricultural land, in not less than two issues of the Scottish Farmer or such other appropriate publication(s).• Site notices must also be displayed on or near the site.
Where no intention to purchase is indicated by or on behalf of a former owner within two months of the date of the latest advertisement the land can be disposed of normally.
Where boundaries of agricultural land have been obliterated
Special procedures apply if the boundaries of former agricultural land have been obliterated (Rule 23 and annex).
Where an intention to purchase has been noted:-
- There are three months to agree terms following an indication to buy (Rule 18).
- Disposals under the rules are to be at market value, as determined by the department's professionally qualified appointed valuer, subject to expert determination (Rule 24).
Generally departments should obtain planning consent before disposing of properties which have development potential, but if not the terms of sale should contain clawback provisions (Rule 25).
Sometimes local authorities need consent for particular types of transaction e.g. land held on the Housing Revenue Account. The guidance is that it should be possible for local authorities to dispose of land in accordance both with the Crichel Down rules and also for best consideration that can reasonably be obtained, or follow the appropriate procedures for disposals at less than the best consideration that can reasonably be obtained (Rule 26).
All public sector (and even some private sector) organisations must now abide by the Crichel Down rules. We hope this guide sets out clearly when and how the rules must be applied. They are not particularly complex, but should be considered whenever disposing of surplus public sector land.