Pow of Inchaffray Drainage Commission (Scotland) Bill

Overview

This is a Private Bill introduced by the Pow of Inchaffray Commissioners, the promoter of the Bill.

The Pow of Inchaffray is a drainage channel near Crieff in Perth and Kinross. The Commissioners are responsible for the management, maintenance and improvement of the pow. People who own land or property which benefits from the drainage provided by the pow must pay towards its upkeep.

Management of the pow is governed by an Act of 1846. This Bill replaces that Act with new arrangements. These include how the Commission works and how payments are calculated and collected.

You can find out more in the Explanatory Notes that explains the Bill.

Why the Bill was created

The promoters of the Bill believe that the legislation in place to govern the management of the pow is out of date and no longer fit for purpose.

The promoters want to replace the 1846 Act with a new one. This will let the Commission carry out its responsibilities more effectively in the future. It will ensure that there is a fair and proportionate system for calculating how much needs to be paid by those who benefit from the pow and its drainage.

You can find out more in the Promoter's Memorandum that explains the Bill.

The Pow of Inchaffray Drainage Commission (Scotland) Bill became an Act on 17 January 2019

Bill is at Introduced stage.

Introduced (17 March 2017)

Bill is at Preliminary Stage stage.

Preliminary Stage (16 November 2017)

Bill is at Consideration Stage stage.

Consideration Stage (24 October 2018)

Bill is at Final Stage stage.

Final Stage (13 December 2018)

Bill is at Act stage.

Act

Pow of Inchaffray Drainage Commission (Scotland) Bill as introduced

Related information from the Promoter on the Bill

Why the Bill is being proposed (Promoter's Memorandum)

Promoter's Memorandum Pow of Inchaffray Drainage Commission (Scotland) Bill Promoter's Memorandum Pow of Inchaffray Drainage Commission (Scotland) Bill

Explanation of the Bill (Explanatory Notes)

Explanatory Notes Pow of Inchaffray Drainage Commission (Scotland) Bill Explanatory Notes Pow of Inchaffray Drainage Commission (Scotland) Bill

Promoter's Statement

Promoter's Statement Pow of Inchaffray Drainage Commission (Scotland) Bill Promoter's Statement Pow of Inchaffray Drainage Commission (Scotland) Bill

Opinions on whether the Parliament has the power to make the law (Statements on Legislative Competence)

Statements on Legislative Competence Pow of Inchaffray Drainage Commission (Scotland) Bill Statements on Legislative Competence Pow of Inchaffray Drainage Commission (Scotland) Bill

Scottish Parliament research on the Bill

Have your say

The deadline for sharing your views on this Bill has passed. Read the views that were given.

Committees involved in this Bill

Lead committee: Pow of Inchaffray Drainage Commission (Scotland) Bill Committee

Who examined the Bill

Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.

It looks at everything to do with the Bill.

Other committees may look at certain parts of the Bill if it covers subjects they deal with.

Who spoke to the committee about the Bill

First meeting transcript

The Convener

Today we are taking evidence from the promoters of the bill, the Pow of Inchaffray drainage commissioners, and their representatives. I welcome Jonathan Guest, who is a commissioner; Hugh Grierson, who is also a commissioner; Alastair McKie, who is a partner at Anderson Strathern; and Shirley Davidson, who is a solicitor at McCash & Hunter.

This is our second evidence session with the promoters. We are very grateful to have had a site visit to the pow since the first session. The committee accepts that the bill is required and thinks that it will improve on the Pow of Inchaffray Drainage Act 1846. However, the committee believes that the bill requires amendment in several areas in order to improve transparency and accessibility, and to introduce safeguards for the benefit of all concerned.

Should the bill reach consideration stage, amendments can be lodged only by members of the committee. However, the committee believes that the process will be most instructive and effective if amendments result from a collaborative and co-operative process including all who are involved. If the general process is one in which all parties can work together, we are likely to reach a more favourable outcome and achieve our shared goals.

On our visit to the pow, we covered a significant bit of territory along the course of the pow. I was struck—as, I am sure, were my committee colleagues—by how sparsely populated much of the pow is until the Balgowan estate. As the bill stands, it is proposed that one commissioner will be drawn from the Balgowan estate. Is that correct?

Alastair McKie (Anderson Strathern)

That is correct.

The Convener

I will explain the papers that members have just been handed. The plans show the whole length of the pow and the side ditches, and the coloured plots show the individual assessments of the benefited land for the full length of the pow and the side ditches. Maps 9 and 10 show all the residential properties, except one. There is one outlying property, which is at Inchaffray abbey, but all the rest are on those plans.

We have also circulated a schedule of all the residential and commercial properties. We previously circulated a heavily redacted version of the schedule, with most of the columns missing. This is the full schedule; the only things that are missing are the names of the heritors. The plans and schedules were prepared right at the beginning, but I received advice that we should provide simplified redacted versions to the committee. However, the situation is very difficult to explain without members seeing the whole thing.

The right-hand column of that schedule shows the amount of the new assessment for each property, net of VAT, based on a budget of £20,000. There is another schedule of all the agricultural properties; the one that I am explaining is just the residential and commercial properties. Most of them are fairly small sums; only seven are more than £200. You will see that the assessment for property 57, which says “Additional on the Ross”, is £339. That is a commercial property—the lime store at Balgowan—where there are large sheds and an open yard. There is a very small residential building there, but the property is basically a large commercial property.

Property 75, Inchaffray abbey, is not on the same plan; it is the purple plot on sheet 4. It is a large detached country house situated next to the ruined abbey. The others are 87, 89, 90, 92 and 106. Number 92 is on sheet 9, and the other properties are on sheet 10. Basically, they are the larger properties on the western side of the developed area.

10:15

To put the issue in context, there are not many of those properties, and they are all substantial houses and valuable properties. To find a formula for adjusting the valuation for those properties because they sit on large plots would be complicated. Given their very small number in the context of the whole situation, I think that that would be an unnecessary complication. However, if the committee feels strongly about the matter, we could come up with a formula. I do not think that it is a very big problem, given the scale of the schedule of properties. We are talking about only a handful, and all are large properties on large sites.

The Convener

Thank you for providing the plans. I appreciate the willingness to consider a bespoke formula for the admittedly small number of homes that are affected. In all this, our concern is to consider every individual who is affected—the issue might be small in the grand scheme of things for the commission and the charging scheme, but it could be significant for the individual home owner. We always have to take cognisance of people who are asset rich but income poor.

Jo Guest

The committee raises the issue because the existing act has been in place for over a century and a half and we have to give consideration to not just any potential vexatious heritor but future commissioners. Ultimately, the proposed amendment does not seem to address the concerns that the committee has raised.

Has consideration been given to any other potential amendments? Perhaps you can discuss and unpack a bit more how you came to the decision to offer this amendment.

Alastair McKie

There are a spectrum of ways in which the bill could be amended—an amendment could give a formal right of appeal to the courts or a right to formal arbitration, for example. To pick up on Jo Guest’s point, that approach was considered to be disproportionate given the sums that we are dealing with, because the cost of any process would be wrapped up in the overall assessment, which would increase the cost for everyone. With a £20,000 budget, one appeal process that costs £5,000—because we would have to involve lawyers and so on—would increase everyone’s overall payment by 25 per cent, just because of one person’s appeal; so we have to be quite careful about it.

Could I come in there? I think that we have a further quote on the cost of the beaver barrier, which my colleague Mr Blair will circulate. It is relevant to this discussion because we have had the matter formally costed per barrier.

Jo Guest

At the moment, as you say, the only statutory charges paid are the SEPA licence, which was a one-off payment of £700, and a payment of £35, which is in connection with the Data Protection Act 1998. It is very difficult to predict what other charges might appear. The main one, as you mentioned, relates to the issue of beavers. Beavers were released illegally in the Alyth area about 10 years ago. From there, they have spread throughout Tayside and have caused significant problems in arterial watercourses such as the Pow of Inchaffray.

First, I went to see Roseanna Cunningham at the end of 2016. She put me in touch with Scottish Natural Heritage’s beaver consultant, who is Róisín Campbell-Palmer. I met her and went round the whole pow with her. Her proposal was that the pow should become a trial beaver exclusion area, because she recognised that beavers are incompatible with what we are trying to do there. She spoke about having a barrier at the lower end of the pow and one at the upper end, between which the beavers would be managed. I had a subsequent meeting with the people from SNH. It has a dedicated officer who deals with beavers, and also a land manager who deals with the land rights that it needs for that. They asked that I get a quotation for forming the beaver barriers.

I have discussed the issue with Ian Ralston, who is the contractor who does most of the drainage work and groundworks in the area. He and his father have worked on the pow over the past 30 years and he is very experienced and capable. He produced the quotation that committee members have before them, which is £21,000 per barrier. Each barrier is a heavy-duty gate that would go across the pow, and there would be side fences that would go out a distance of 150 metres on either side, to stop the beavers coming up and walking round the barrier. Therefore, the potential total cost is more than £40,000. The SNH land agent suggested that there would need to be legal agreements with all the people on whose land the barriers would sit, which, of course, would cost more. There are potentially five people involved, so if we were to have five agents and five solicitors, we can see that the cost would rack up further. From my last conversation with him, the land agent now thinks that more informal letters of agreement would suffice, which would be a lot cheaper.

Shirley Davidson

Yes.

Alison Harris

Good—that is enough.

Shirley Davidson

I can give you some thinking on that. We looked at data protection. The commissioners are willing to make the register of heritors publicly available. You will recall that on its website the Parliament redacted certain details that the commissioners had provided, presumably because it had concerns about data protection issues.

The commission is already registered as a data controller with the Scottish Information Commissioner. The Data Protection Act 1998 requires that personal data will be processed “fairly and lawfully” and will not be processed unless at least one of the conditions in schedule 2 to the 1998 act is met. One of those conditions is:

“The processing is necessary for compliance with any legal obligation to which the data controller is subject”.

If the new act requires the publication of the register of heritors, we assume that that condition will be met.

Mary Fee

How will you ensure that prospective purchasers are aware of their obligations regarding the pow?

Shirley Davidson

In the commission’s view, there are satisfactory methods by which future purchasers will have the matter flagged up to them. In rural and semi-rural areas, it is recognised that it is not unusual for properties not to be connected to the public sewage system. In the case of the benefited properties here, the question of whether the property is connected to—or lies ex adverso to—the public drainage system is covered in the home report, the survey report, the standard missive and the property inquiry certificate. That question will—or certainly should—always produce the answer no. That alone, I would submit, puts the solicitor acting for the purchaser on notice that that solicitor should make the appropriate inquiries and advise their client accordingly.

I have a few short additional comments to make, if that is possible.

The Convener

Certainly.

Alastair McKie

They will not take long.

The commissioners have additional comments to make with regard to today’s questions and the points that have been made generally in objection to the bill. The function of the pow is to drain an area of approximately 1,930 acres of land. That drainage function directly benefits agricultural, commercial and residential land in the benefited area through flood alleviation, surface drainage and foul drainage.

11:00

It is important to observe that the commissioners act on a voluntary, not-for-profit basis, and their proposed function under the bill will be to repair, maintain, renew and improve the pow for the benefit of all affected proprietors across its four sections. The commissioners have made approaches to Perth and Kinross Council, Scottish Water and SEPA, none of which is prepared to take over responsibility for the pow.

The arrangements under the 1846 act require updating to take account of changing circumstances, including the construction of residential properties on part of the benefited land at Balgowan. The bill, which has been the subject of significant public consultation, will update a number of arrangements, particularly for the calculation of the annual assessment that is payable by all heritors.

The bill has raised a number of issues, particularly with regard to residential properties. Residents have concerns about the benefit that they consider that they receive from the pow and about the arrangements for and the level of annual assessments. All residential properties benefit directly from the pow, which enables them to have surface water drainage and foul drainage, and which enables some to have flood alleviation. Permission would not have been granted for the residential properties without the opportunity for drainage of surface water and foul water, which ultimately goes into the pow. In addition to the individual septic tanks that drain into the pow, I believe that the committee saw during its site visit the waste water treatment plant for the new development at Balgowan, which drains into the pow.

As we have indicated in evidence, the commissioners do not consider that the annual assessment should be subject to a cap or limit. Although no capital expenditure is foreseen other than that for the provision of two beaver gates, the imposition of a cap would in practice place an unworkable and unacceptable limitation on the work of the commissioners in their repair, maintenance, renewal and improvement of the pow. Such a cap would mean that the bill was not future proofed, in circumstances where it must be.

On anticipated costs, we heard in evidence today that the beaver gates will cost about £42,000 to install, including the costs of any informal or formal arrangement with the landowners. The provision of the beaver gates is a concern for the committee and for the commission. It is an item of extraordinary expenditure that, although it is necessary to protect the pow, is not of the commissioners’ making; it is a consequence of policies and legislation that require the reintroduction and protection of beavers, and an exclusion area for beavers, which I think is the first in Scotland. It is considered important that SNH considers making sufficient grants available to pay for those works, and we will write to SNH shortly after this meeting to follow up on its deliberations about grant funding and its meeting with the Scottish Government.

I now wish to concentrate on the amendments to the bill that the commissioners are prepared to offer for the committee’s consideration to address its concerns. I believe that the proposed amendments would provide heritors—particularly the Balgowan heritors—with additional statutory protections.

The first amendment would allow for up to two commissioners to represent the Balgowan section of the benefited land. As the number of commissioners would increase from seven to eight, we would need to increase the quorum at meetings of the commission from three to four, to ensure that 50 per cent of the commissioners—four of the eight—formed a quorum.

The commissioners are minded to offer an amendment to allow a simple majority of the heritors of a particular section to dismiss a commissioner, but in relation only to their particular section.

The commissioners are prepared to offer an amendment to allow objectors to the annual assessment a formal right to comment on it—the 21-day period that we talked about. That would be backed by our reference to an independent surveyor, which we discussed.

We will also offer an amendment to make it clear that, when heritors cease to be heritors, or when commissioners cease to be heritors, they cannot be commissioners.

Further, we will offer for the committee’s consideration an amendment that would require the full register of heritors to be publicly available. That would match nicely with the website, when that comes forward, and would enable the requirements of the Data Protection Act 1998 to be met.

The commissioners have carefully considered the position on historical debt and have agreed that the historical unpaid assessments should be written off. That was considered to be a pragmatic approach, as the individual assessments are relatively small, and it is possible that it would not be cost effective to recover those assessments in any event.

The purpose of the bill is to update the arrangements in the 1846 act by establishing fair, straightforward and future-proofed procedures that will allow the maintenance, repair, renewal and improvement of the pow for generations to come.

The Convener

I thank the witnesses for attending. We will suspend briefly to allow them to leave.

11:05 Meeting suspended.

11:06 On resuming—

The Convener

The next agenda item is for the committee to give preliminary consideration to the three admissible objections that were lodged.

We will consider each of the three objections in turn and come to a view on whether the committee believes that each objection clearly demonstrates that the objector’s interests are adversely affected by the bill. If we do not believe that to be the case, the objection will be rejected. Any objections that are not rejected will be considered in full at consideration stage, should the bill reach that stage. All objectors will be informed of the outcome of the process after the meeting.

First, we will consider the objection from Gareth Bruce. Are we content to let it progress to consideration stage?

Members indicated agreement.

The Convener

Next, we will consider the objection from Mr and Mrs Bijum. Are we content to let it progress to consideration stage?

Members indicated agreement.

The Convener

Finally, we will consider the objection from Tom Davies. Are we content to let it progress to consideration stage?

Members indicated agreement.

The Convener

As the next item is in private, the public business of the committee is concluded. The committee’s next meeting will be on Wednesday 25 October at 11 am and will be in private to consider our draft preliminary stage report.

11:07 Meeting continued in private until 11:37.

27 September 2017

Pow of Inchaffray Drainage Commission (Scotland) Bill Committee Preliminary Stage report

Debate on the Bill

A debate for MSPs to discuss what the Bill aims to do and how it'll do it.

Preliminary Stage debate transcript

The Presiding Officer (Ken Macintosh)

Good afternoon. The first item of business this afternoon is a debate on motion S5M-08649, in the name of Tom Arthur, on the Pow of Inchaffray Drainage Commission (Scotland) Bill. I call Tom Arthur to speak to and move the motion on behalf of the Pow of Inchaffray Drainage Commission (Scotland) Bill Committee.

Tom Arthur (Renfrewshire South) (SNP)

I am pleased to open this preliminary stage debate on the Pow of Inchaffray Drainage Commission (Scotland) Bill.

Members could be forgiven for thinking that the subject might be dry and technical, but I assure them that the pow is literally anything but dry. It has a rich history that involves no less a figure than King Robert the Bruce. Before I dive into the pow in detail, I thank all those who engaged with us and the other committee members—Alison Harris and Mary Fee—for their hard work. I also put on the record the committee’s thanks to the clerks and the Scottish Parliament information centre for their invaluable support.

This private bill was introduced on 17 March 2017. A private bill is introduced by an outside promoter and will make specific changes to the law that affects the promoter rather than changing the public and general law. The bill has been promoted by the Pow of Inchaffray commissioners, who have responsibility for the arrangements, management, maintenance and improvement of the pow. For anyone who is wondering what a pow is, I will explain shortly.

Anyone who considers that a private bill would adversely affect their interests can formally object to it. Three admissible objections to the bill were lodged and none was rejected at the preliminary stage, so all will be considered in detail should the bill progress to the consideration stage.

The objections helped to inform our scrutiny. The committee took evidence from the promoters on two occasions. We questioned them not only about comments and concerns that were raised in the objections but on a wide range of written submissions, including those from the Scottish Government, Scottish Natural Heritage and the Scottish Environment Protection Agency.

Before I set out some of the areas of concern, I will explain what the Pow of Inchaffray is. “Pow” is a Scots word that means a ditch, slow-running stream or channel of water. The Pow of Inchaffray provides drainage to approximately 1,930 acres of surrounding land near Crieff in Perth and Kinross and is the equivalent of 13.7 miles long. The land that it drains is defined in the bill as “benefited land”, and those who own land or property there are called “heritors” and must pay the commission a share of its annual budget for the upkeep of the pow.

The origins of the pow date back to the 13th century. Further work was carried out in 1314 at the behest of King Robert the Bruce, and it was first put on a statutory footing in 1696 in the old Scots Parliament. That act was updated in 1846 at Westminster to give the commissioners greater powers to carry out works and improvements and made provision for the costs of work to be shared among landowners. The commission now wants to replace the Pow of Inchaffray Drainage Act 1846 with something that is fit for purpose so that it can carry out its responsibilities more effectively in the future and ensure that there is a fair and proportionate system for calculating the annual assessments that heritors must pay.

Historically, the pow has been managed by the owners of the agricultural land that surrounds it. It was never envisaged that the benefited land would include a large number of residential properties but, because of centuries of drainage work, some land was made suitable for development and a new housing estate was built in the Balgowan area. Some older properties were also redeveloped for residential use. Most of those residents are already liable to pay the commission for the upkeep of the pow, and the remainder will be made liable by the bill.

The issues of which land benefits, who should pay, how much they should pay, and the balance of power between the commission and the heritors are at the heart of many of the concerns that have been expressed to the committee. Much revolves around the commission’s annual budget, as that determines what individual heritors will pay. The committee therefore spent some time clarifying what the budget of the commission has been historically and what factors could impact on future budgets. On request, the promoter provided the committee with details of the budget between 2004 and 2016. The budget has varied from under £3,000 to over £30,000 in that period, with an average annual budget of £14,609. My colleague Mary Fee will talk more about the future budgets of the commission, and Alison Harris will set out views on the need for a right of appeal and on how prospective purchasers are made aware of the pow, but I will highlight a couple of other issues before I close.

The committee is satisfied that maintenance of the pow is required and that a body is needed to manage that. It is clear that Perth and Kinross Council, SEPA and Scottish Water either have no interest in taking on that role or have no locus to do so. Therefore, the commission needs to continue and it is appropriate that its work is funded by those who benefit. However, the balance of power between the commission and heritors needs careful consideration. I will briefly give some examples.

There are currently six commissioners, two each for the lower, middle and upper sections, with no commissioner for the Balgowan section of the pow. The bill proposes changing that to allow a Balgowan area commissioner, and seven commissioners in total. However, as approximately 73 per cent of heritors live in the Balgowan section, it did not seem appropriate for them to be represented by one commissioner out of seven. As a result of our questioning, the promoters have agreed in principle to bring forward amendments to allow two Balgowan commissioners, leading to eight commissioners in total.

The commission also supported the committee’s preliminary suggestions to allow easier termination of a commissioner’s appointment, and to make it possible for a majority of heritors to dismiss a commissioner from their section. We also discussed whether the method set out in the bill for calculating annual assessments was fair and proportionate, particularly for heritors who may be asset rich but income poor and who may live in modest houses on larger land plots, for historical reasons.

Should the bill proceed, we will discuss those and other issues with the objectors and promoters with a view to lodging amendments to the bill if appropriate. Overall, we support the general principles of the bill and, although we have identified some issues that need to be resolved at consideration stage, we are confident that sensible compromises can be found.

I move,

That the Parliament agrees to the general principles of the Pow of Inchaffray Drainage Commission (Scotland) Bill and that the bill should proceed as a private bill.

14:37

The Minister for Business, Innovation and Energy (Paul Wheelhouse)

I will speak briefly on behalf of the Scottish Government. Some private bills are straightforward. As the preliminary stage report shows, this is not a straightforward bill, and I congratulate the committee on its evident hard work in scrutinising it.

On rights of appeal, the committee’s report states:

“The Committee is concerned about the lack of a right of appeal in the Bill, especially given the issues identified regarding the potential for the annual budget to increase substantially and unchecked, and that the 1846 Act contains an appeals process for assessments to be appealed to the sheriff. If the Bill is to stand the test of time then it seems prudent for it to contain proportionate appeals and dispute resolution procedures for those it affects. The Committee also does not believe judicial review, which is a potentially expensive form of court action that has to be heard in the Court of Session in Edinburgh, will be a realistic option for most heritors.”

It goes on to say:

“Should the Bill proceed to Consideration Stage, the Committee will discuss this issue with the Promoters and objectors. It is the Committee’s preliminary view that the Bill may need to be amended to ensure appropriate and proportionate appeal and dispute resolution mechanisms are put in place.”

The Scottish Government agrees with the committee’s view that the bill may need to be amended to ensure appropriate and proportionate appeal and dispute resolution mechanisms are put in place, and we are happy to work further with the committee, as required, to ensure that appropriate amendments come forward to put that into effect.

14:38

Mary Fee (West Scotland) (Lab)

I thank the convener, Tom Arthur, for moving the motion. As we have heard, how the annual budget will be determined each year is key to our considerations, because that is how each heritor’s individual charge will be calculated.

The committee identified three factors that could have a significant impact on future budgets. The first is the fact that the cleaning and repair of the pow have been put on hold to focus on the bill, the second is the cost of the private bill itself, and the third is the fact that there are now beavers in the pow that may cause damage and so need to be managed. I will say a little more about each of those factors.

The promoters have confirmed that no work to clean or repair the pow has been undertaken since 2014, as funds have instead been set aside for the preparation and promotion of the bill. The committee has asked what implications there are for the pow due to lack of maintenance and repairs over the past two years. The committee heard that there would be a backlog and that there is already evidence that work is required in certain parts of the pow that could increase the risk of flooding if it is left unattended. That maintenance work would be a priority once the bill is passed, and the implication for heritors is another cost that will need to be recouped from them by the commission.

The bill states that any promotion costs of the bill that are not recovered under the 1846 act will be added to future annual budgets and, therefore, will be paid for by all heritors. The bill states that those costs can be spread out over the next three years, so that is another potentially substantial increase to the budget in those years.

There is also the issue of the beavers. The committee heard that beavers were illegally released into the area some 10 years ago and that they have caused significant problems. As the convener has said, committee members undertook a fact-finding visit to the pow on 8 September, and I saw for myself the damage that beavers have caused to sections of the pow. The commission now faces having to manage the beavers in order to prevent, or minimise, further damage. We heard that the commission has been in discussions with Scottish Natural Heritage about a trial beaver exclusion area. The commissioners contacted a contractor who proposed a design for a barrier, but the cost was around £42,000. The commission was looking to SNH to fund the barriers in full. The committee has recently heard that, for reasons of cost and complexity, SNH will not pursue the proposed trial at this stage, which leaves the commissioners with the issue of how best to manage the beavers in the pow. Whatever steps the commission takes to do that, it is likely that there will be a resulting cost that will be added to the annual budget, perhaps over a number of years, and the heritors—including the commissioners—will have to pay for it in their annual contributions.

The committee notes that all those factors—the cost of promoting the bill, the backlog of cleaning and repairs and the potential costs of beaver protection—could increase considerably the annual budgets and, therefore, the heritors’ contributions. That is why we concluded that, in order to future proof the bill, added safeguards are required to protect heritors from excessive budget increases, such as appropriate and proportionate appeal and dispute resolution mechanisms. Should the bill pass to consideration stage, we will make sure that those issues are discussed further with the promoters and objectors.

Another issue that we examined was the non-payment of assessments by some heritors. We sought clarification on that and it was confirmed that unpaid contributions amounted to debts of £21,480, which date back to 2012. The promoters confirmed that, although the bill gives them the option of pursuing the debts, the commission decided at a meeting on 15 August, after considering the issue, that historical debts will be written off and not pursued. One reason that was given for that decision was that the potential costs of pursuing outstanding debts could be more than the amount owed. However, the promoters also confirmed that any future debts will be pursued by the commission through the courts.

It seems, therefore, that all the heritors under the bill, including the 20 new heritors, could face higher charges than would otherwise be the case as a result of some previous heritors not paying and that debt being written off. It is also clear that any heritors not paying from now on could face court action. Objections and written submissions have claimed that that is not fair and, should the bill proceed, we will pursue that issue further at consideration stage.

The committee will continue to closely monitor those areas of concern at consideration stage to ensure fairness to the heritors going forward.

The Presiding Officer

No one else has asked to speak in the debate, so I call Alison Harris to close.

14:44

Alison Harris (Central Scotland) (Con)

I thank the convener, Tom Arthur, and Mary Fee for their speeches.

Currently, there is nothing in the bill to prevent the commission’s budget, and therefore heritors’ charges, from rising substantially. There is a right for heritors to make representations to a surveyor if changes are proposed to the values that are used to calculate annual assessments or to the land categories. However, that is not the same as a right of appeal. Under the 1846 act, heritors have the right to appeal to the commission and then to court if they are not satisfied with their assessments. However that right has not been carried forward in the bill, which also does not contain any right of appeal for heritors to challenge the budget.

The issue was raised in objections and written submissions, including by the Scottish Government, which stated that it would

“seem preferable to replicate existing appeal rights in the new Bill.”

The promoters told the committee that a right of appeal was not included because the values that underpin the calculation of the annual assessments are set out in the bill; the only variable factor is the budget; there is less scope for challenge under the bill than there was under the 1846 act; the bill provides for a cost-effective proportionate system for all and the costs of appeals would have to be shared out among all heritors; and a judicial review remains an option of last resort. However the committee remained concerned about the lack of a right of appeal for heritors and asked the promoters to reflect further.

The promoters suggested amending the bill to ensure that, when heritors are given 21 days to make representations to the commissioners about the proposed budget, the commissioners would have to take any comments into account when finalising the budget. When pushed further by the committee, the promoters made a further suggestion of providing a right of appeal to an independent expert, but only in circumstances where 10 or more heritors wished to appeal.

The promoters stressed that that was not their preferred option and cautioned that such a process could delay the setting of the annual budget and lead to the budget being set at higher levels and being less accurate. They also cautioned that any appeals, whether successful or not, could result in higher, rather than lower, individual assessments for heritors, as the legal costs of the appeal would need to be shared out among all heritors. The issue clearly needs further thought and, should the bill proceed to consideration stage, we will discuss it with the promoters and objectors. At this stage, it is the committee’s view that the bill may need to be amended to ensure that an appeal mechanism is put in place.

Another issue that came to light during our scrutiny was that some prospective purchasers are not made aware of the pow and the obligation to make payments to the commission. The commission told us that, in its view, there are already satisfactory methods in place for notifying prospective purchasers, including the home report, the survey, the standard missives, the property inquiry certificate and Scotland’s land information service, ScotLIS, which is a new online service that was recently launched by Registers of Scotland. However, should the bill be passed, we still think that more needs to be done to alert prospective purchasers to the pow’s existence and purpose and the requirement to make annual payments to the commission.

We identified potential changes to the bill that could help, such as requiring the land plans and new register of heritors to be published. The promoters were sympathetic to those suggestions. Should the bill proceed to the next stage, we will consider those issues further with the promoters and objectors and bring forward amendments if necessary.

In addition, more may need to be done outwith the bill to help prospective purchasers. The promoters told the committee that companies that provide property inquiry certificates are prepared to make specific reference to the pow in them. In our report we ask the promoters to provide the committee with written confirmation of that. We recommend that the promoters liaise with Perth and Kinross Council to ensure that any certificates that it issues make reference to the pow. We also recommend that the promoters engage with Registers of Scotland to explore how and when relevant information can be included in ScotLIS.

The promoters told us that they intend to launch a website, which could include an easy online mechanism for owners to notify the commission of land and property sales. Such a website would not just help with that issue but improve communication all round.

As the convener has said, the committee supports the general principles of the bill and, after thorough scrutiny at the preliminary stage, we have a clear picture of the issues that need to be examined further with the objectors and the promoters at consideration stage, should the Parliament agree today that the bill should proceed.

16 November 2017

Vote at Preliminary Stage

Vote at Preliminary Stage transcript

The Presiding Officer (Ken Macintosh)

There are four questions to be put as a result of today’s business. The first question is, that motion S5M-08649, in the name of Tom Arthur, on the Pow of Inchaffray Drainage Commission (Scotland) Bill, be agreed to.

Motion agreed to,

That the Parliament agrees to the general principles of the Pow of Inchaffray Drainage Commission (Scotland) Bill and that the bill should proceed as a private bill.

The Presiding Officer

The next question is, that amendment S5M-08855.1, in the name of Maurice Corry, which seeks to amend motion S5M-08855, in the name of Keith Brown, on Scottish Government support for veterans and the armed forces community in Scotland, be agreed to.

Amendment agreed to.

The Presiding Officer

The next question is, that motion S5M-08855, in the name of Keith Brown, as amended, be agreed to.

Motion, as amended, agreed to,

That the Parliament recognises and values the contribution of the armed forces and veterans community to Scotland; notes the work of the Scottish Veterans Commissioner as described in his reports on transition, housing and employability, skills and learning; further notes the importance of third sector veterans’ charities in caring for the welfare of the armed forces and veterans community and of ensuring that such charities are able to survive and thrive into the future, and agrees that the Scottish Government should continue to work in partnership to ensure that the armed forces, veterans and their families receive the best possible support and access to opportunities across Scotland.

The Presiding Officer

The final question is, that Parliamentary Bureau motions S5M-08865, S5M-08866 and S5M-08961, in the name of Joe FitzPatrick, be agreed to.

Motions agreed to,

That the Parliament agrees that the Budget (Scotland) Act 2017 Amendment Regulations 2017 [draft] be approved.

That the Parliament agrees that the Equalities and Human Rights Committee be designated as the lead committee in consideration of the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill at stage 1.

That the Parliament agrees that the following changes to committee membership apply from close of business on Thursday 16 November 2017—

Colin Beattie be appointed to replace Gil Paterson as a member of the Economy Jobs and Fair Work Committee;

Tom Arthur be appointed to replace Ash Denham as a member of the Economy Jobs and Fair Work Committee;

Emma Harper be appointed to replace Maree Todd as a member of the Health and Sport Committee;

Sandra White be appointed to replace Tom Arthur as a member of the Health and Sport Committee;

Ash Denham be appointed to replace Clare Haughey as a member of the Health and Sport Committee;

Stewart Stevenson be appointed to replace Emma Harper as a member of the Environment, Climate Change and Land Reform Committee;

Richard Lochhead be appointed to replace Clare Haughey as a member of the Education and Skills Committee;

George Adam be appointed to replace Colin Beattie as a member of the Education and Skills Committee;

Clare Haughey be appointed to replace Clare Adamson as a member of the Standards, Procedures and Public Appointments Committee; and

Clare Adamson be appointed to replace Sandra White as a member of the Social Security Committee.

Meeting closed at 16:46.

16 November 2017

MSPs agreed that this Bill could continue

Changes to the Bill

MSPs can propose changes to a Bill – these are called 'amendments'. The changes are considered then voted on by the lead committee.

The lists of proposed changes are known as a 'marshalled list'. There's a separate list for each week that the committee is looking at proposed changes.

The 'groupings' document groups amendments together based on their subject matter. It shows the order in which the amendments will be debated by the committee and in the Chamber. This is to avoid repetition in the debates.

How is it decided whether the changes go into the Bill?

When MSPs want to make a change to a Bill, they propose an 'amendment'. This sets out the changes they want to make to a specific part of the Bill.

The group of MSPs that is examining the Bill (Private Bill committee) votes on whether it thinks each amendment should be accepted or not.

Depending on the number of amendments, this can be done during one or more meetings.

First meeting at Consideration Stage

Documents with the amendments considered at this meeting 24 October 2018:

First Marshalled List of Amendments for Consideration Stage

First Groupings of Amendments for Consideration Stage

First meeting at Consideration Stage transcript

The Convener (Tom Arthur)

Good morning and welcome to the sixth meeting in 2017 of the Pow of Inchaffray Drainage Commission (Scotland) Bill Committee. This is our first meeting at consideration stage, and the only item on our agenda is our approach to consideration stage scrutiny of the bill. Do members have comments on the approach paper, POI/S5/17/6/1?

Mary Fee (West Scotland) (Lab)

It is an excellent paper, which lays out everything that we need to consider.

Finally, does the committee agree to the provisional timetable that is set out in the paper?

Members indicated agreement.

The Convener

Thank you very much. The next meeting of the committee will be on Wednesday 13 December at 10 am, subject to the availability of witnesses. At that meeting we will take evidence on the objections from the objectors and the promoters of the bill.

Meeting closed at 10:10.

22 November 2017

Second meeting at Consideration Stage

Second meeting at Consideration Stage transcript

The Convener

The second item on our agenda is evidence on the objections, and I welcome everybody to the meeting. Of the three objectors, only Tom Davies is in attendance. Neither Mr Bruce nor Mr and Mrs Bijum are able to attend.

The committee is grateful to the promoters of the bill for providing a new written submission ahead of the meeting.

As the process is unfamiliar to most of us—I include the committee members in that—I will explain the procedure and how the meeting will proceed.

There are two distinct phases to the consideration stage. The first phase, which begins today, involves our meeting in a quasi-judicial capacity to consider and dispose of the objections. The second phase will see the committee meet in a legislative capacity to consider and dispose of any amendments that have been lodged and to consider each section, the schedule and the long title of the bill.

At today’s meeting, the objector and promoters will have the opportunity to set out their arguments and to test those arguments through cross-examination. As the convener, I will manage the proceedings. The committee will predominantly listen to both sides but may come in at times to seek clarification on an issue or to move things along. The committee may also highlight issues that have been raised in the other two objections, given that those objectors are not present today.

I will first invite Tom Davies to set out the points that he wishes to make in relation to his objection. The promoters will then have an opportunity to cross-examine him. After that, the roles will be reversed and the promoters will respond to the points that are raised in the objections and make any other points, and Mr Davies will have an opportunity to cross-examine the promoters.

Either party can refer or respond to the issues that have been raised by the other objectors, who are not in attendance today. Once we reach the end of the session, there will be an opportunity for each party to make a brief closing statement. The committee will then reflect on what we have heard and come to a view when we meet on Wednesday 17 January 2018.

We now move to the formal evidence session. I encourage everyone to be as concise as possible. I invite Tom Davies to open proceedings by setting out the points that he wishes to make regarding his objection.

Alastair McKie (Anderson Strathearn)

Convener, I should just mention that the promoters have prepared some papers for everyone who is here. They are public papers that I intend to use when questioning Mr Davies. Would now be a suitable time to distribute them, or do you want me to do that after Mr Davies has spoken?

The Convener

You can do it now, so that proceedings are not interrupted later.

Alastair McKie

There is also an inventory that goes with the papers. They are for everyone’s convenience and should allow us to get through things quickly this morning.

The Convener

Thank you, Mr McKie. Mr Davies, I invite you to go ahead.

Tom Davies

First, I apologise for my lateness in arriving this morning. As many of us will be aware, having three small children in the house often jeopardises your plans for when you intend to leave, and it was no different this morning.

I have drafted my thoughts in my notes, and I will read from them. I will be as concise as I can be.

I thank the committee for inviting me to give evidence. This is new to me—I have not done it before. As I say, I have gathered my thoughts in my notes and will refer to them throughout the meeting. I acknowledge the work that Jo Guest and Hugh Grierson have undertaken and their commitment to the maintenance of their land. Similarly, I take seriously my responsibility to protect my modest ownership, which is why I am sitting here today, setting out my objections.

I live in my property on Eden Square with my wife and three small children, having moved there in 2010 after having lived in Dunblane for some time. I was unaware of the pow and of the Pow of Inchaffray Drainage Act 1846 when we moved in, but, like the committee, I have become very familiar with the pow, its purpose and some of the history associated with its inception, construction and subsequent maintenance.

I am not a farmer or a landowner like Jo and Hugh, but I worked in a land-based industry for more than 20 years, dealing with land use change on a significant scale and its consequential effects on the water environment. Although I am not a hydrologist, nor do I pretend to be an expert on such matters, I have knowledge and experience of drainage and flooding matters.

Before I set out my objection in detail, I wish to make some broad points in summary. I maintain my objection to the bill and believe that it would require substantial amendment before it could be considered acceptable to be passed into law. I consider the bill to be unfair, disproportionate and lacking in any evidence base. It will confer significant power on a small group of landowners who are very much the minority of those covered by the bill.

Two very different types of people appear to be affected by the bill: the landowners, who run businesses on their land and who undertake a range of agricultural activity that is supported by Government subsidy, and the householders, who own modest plots of land and likely have no or little knowledge or interest in land management issues. That is a key problem with the bill and the process up to today. There are two very different types of owners but the bill attempts to take a one-size-fits-all approach.

It is my understanding that 73 per cent of the heritors live on the Balgowan estate, so I am part of the majority. The valuation amounts under the current act amount to approximately £20,000 per year, and the Balgowan householders are charged £8,100, which is 40 per cent of the total amount. My neighbours and I make up 73 per cent of the heritors and are charged 40 per cent of the total cost, yet the balance of power in the bill is retained by a small group of landowners.

10:15

I will now address in detail my objection and the reasons for it. The bill details the land that is identified as benefiting from the pow, but there needs to be a complete and detailed reassessment of the “benefited land” so that it is clear who benefits and how they benefit. Only once that has been done can the cost of the identified benefit be calculated. The promoters have stated that they consider that the original survey of 1846 remains valid in its identification of the benefited land, but I disagree with that. There have been three obvious changes since 1846 that will have affected the pow, which I will detail briefly.

First, there have been housing developments in the vicinity of the pow since 1846, with varying degrees of mitigation. For example, the Balgowan housing estate was constructed only after the land was built up—the level of the land was raised—as committee members will have seen on their site visit. The Balgowan houses are obviously higher than the top of the pow bank and the fields to the north, downstream and upstream.

Secondly, agricultural practice has changed radically since 1846, and the benefits and impacts of agricultural practice are now very different. For example, intensive ploughing of the fields will have a greater impact on the pow, as significant volumes of silt enter the pow after ploughing takes place.

Thirdly, the pow itself has changed significantly since 1846. For example, the bed of the pow was lowered at Dollerie bridge in 1995. The committee may remember that we stopped at that bridge on the public road during the site visit and looked over it to see a tremendous drop into the pow—a much bigger drop than you would have expected. Members may also remember that we had to dodge the cars as they drove over the bridge. That is certainly ingrained in my memory.

The note for the heritors’ meeting on 2 March 2015 details the changes that have been made to the pow since 1846. It states:

“The availability of powerful 360 degree excavators has enabled the Pow to be significantly improved, particularly over the last 25 years”.

The landscape has changed radically since 1846; therefore, a new assessment is required to see who benefits and how they benefit.

I have come to the conclusion that my property receives no direct benefit from the pow and that, therefore, it should be removed from the benefited land identified in the bill. I do not have any direct relationship with the pow and I do not receive any direct benefit; therefore, my property should be removed from the benefited land and I should not be charged. Numerous other properties do not have a direct relationship with the pow and should also be removed from the benefited land.

I do not release anything into the pow—there is no discharge from my property that goes directly into the pow. I release neither foul drainage nor surface water into the pow. I re-emphasise the point to the committee: I do not release anything into the pow and I have no direct relationship with it. Therefore, why am I included and to be charged? I appreciate that those points may lead to some questions, and I will be happy to discuss them later.

I do not benefit from any flood protection from the pow. I have repeatedly made that point and, so far, no evidence or information has been provided to prove my assessment wrong. The Scottish Environment Protection Agency flood map shows clearly that my house is not considered to be in a flood risk zone. The commission has stated over and over again that my house is at risk from flooding yet has not provided any evidence to support that position. I have reached the conclusion that there is no evidence to support that statement; the question remains why it was made in the first place.

Let me summarise the first part of my objection. I believe that my home should be removed from the category of “benefited land” as I do not release anything into the pow and my home is not at risk from flooding. Those appear to be the two benefits identified by the bill, yet they do not directly affect my house. Therefore, I should not be charged and nor should many of my neighbours in both new and old Balgowan, who equally do not benefit from the pow. Why should I be charged for something that I do not do?

The second part of my objection relates to funding—specifically, a cap on an increase to the annual charge. However, the issue is relevant to me only if my property is included in the benefited land, which, as I say, it should not be. I maintain that there should be a cap to prevent significant increases in annual pow charges. My objection is largely fuelled by the balance of power in the bill—the fact that all the power will be reserved to a small group of landowners—and the lack of transparency on funding and costs.

The bill will give a small group of landowners the ability to increase my annual charge to whatever they see fit without any reference to me. I will have no control over what I will be asked to pay, and I will have no ability to review the costs, let alone challenge them, which I believe is fundamentally wrong. I understand that the residents of Balgowan equate to 73 per cent of the heritors. Despite that, we—the majority—will be told what to pay and will have to blindly accept that, which is unfair.

There appears to be a lack of transparency in the process, and there is no protection against conflicts of interest. There appears to be no provision for securing the best possible deal for any of the heritors through a fair and open tendering process for the work. Therefore, I am deeply worried about what charges will be added to my annual bill. For the landowners and their farm businesses, the pow charge is a business expense that will ultimately reduce their tax burden. However, I do not have that luxury, nor can I claim the VAT back as many of the farms can if they are VAT registered.

Although the sums that are talked about at this stage might be low, there is the potential that, in the future, the commission may wish to create a very large reserve of funds and I would have to keep paying. Alternatively, it may wish to undertake some very large capital works, such as bank reinforcement, which might be unnecessary, and I would have to keep paying. There is no protection for me against the wishes of the landowning commissioners and their desires for their land. I will have to subsidise the landowners for the works on their land, which might or might not be needed. I will not be able to challenge any such decision; the matter will be decided among the commissioners, who happen to be the farmers who will benefit the most. I do not believe that to be fair, and I believe it to be wrong.

Tom Davies

Tom Davies

Tom Davies

I understand that it is owned by Bett Homes, which took on Manor Kingdom, which was the builder of my property.

Under the 1846 act and the benefited lands identified, yes. However, we are moving on to a new act and, through this process, I am objecting on the basis that the benefited lands need to be re-identified because I argue that I do not directly benefit from the pow.

10:45

Alastair McKie

We will need to choose to disagree.

Thank you for that clarification. I will make a point on that that may be helpful for the committee. On 13 January 2015, I received a letter from McCash & Hunter. It says:

“The Pow Commissioners’ charge is levied for the purpose of ensuring that the Pow Burn is cleared and dredged so as to prevent flooding of the lands in this area. Inspections are periodically carried out and maintenance works to the Pow and its banks are carried out each year so that the full length of the Pow of Inchaffray continues to flow unobstructed.

Your property benefits from these works, in the absence of which it would be at risk of flooding and possible uninsurability.”

A note was prepared for the heritors meeting at Gask hall at 6 pm on 2 March 2015 and given to all the heritors. On page 1, it says:

“The Commission’s role in preventing the floods which had blighted the low lying land in Strathearn for centuries means that the land drained is among the most fertile agricultural acreage in Scotland. In addition, the Commission’s work has made residential development possible in some areas such as the former Balgowan Sawmill Site. It is therefore vitally important that the Pow is maintained to prevent flooding in this area.”

This sentence is used again in the promoters’ memorandum:

“It is therefore vitally important that the Pow is maintained to prevent flooding in this area.”

Again, exactly the same sentence is used in the consultation paper of May 2016, which states:

“It is therefore vitally important that the Pow is maintained to prevent flooding in this area.”

“maintain, repair and renew the Pow”,

take out the weeds on affected land and

Alastair McKie

On that specific point, are you aware that the commissioners wrote to the Scottish Parliament on, I think, 11 October, setting out a possible amendment to give a right of appeal to heritors in respect of the annual assessment?

Tom Davies

I do not necessarily understand all the detail, but I am aware that a right of appeal was identified.

Alastair McKie

Perhaps I can explain a little bit about the appeal and then we can explore your views. The right of appeal would apply if 10 or more heritors—I stress that, because it is an important point—wish to challenge the draft budget that comes before the annual assessments are raised. Heritors can have that budget assessed by an independent expert, at no cost to themselves. There is no fee for making the appeal.

One of the concerns that have been expressed about a right of appeal—and why it has been resisted by the commissioners—is about its potential cost impact on all the other heritors. If a right of appeal were to be exercised, and the case had to go to an independent expert, the cost of that expert would have to be paid by the commission. The commission has no source of income other than the annual assessment. If just one heritor were to appeal, all the rest would have to pay for the appeal. On the calculations that we have made and have given to the committee, the fear of the commission is that if the appeal costs were to run into a few thousand pounds—and even if the independent expert were to uphold the appeal and say that the budget was too high and that everyone needed to pay £15 or £20 less—the annual assessment would still be higher because the costs of the appeal would need to be borne by the finite pool of heritors.

That explains why we have put in place the threshold of 10 heritors. It is to prevent someone from making an appeal just because they want to do so. I am interested in exploring your view of that right of review.

Tom Davies

Thank you for explaining that. That is my understanding, having read it.

It is interesting that, in providing for the ability to review the cost, the proposal is to go straight into an appeal process. Other parts of the process need to be identified: it should not go straight to an adversarial approach. First, there should be transparency about the costs of the maintenance. Secondly, there should be an open and fair tendering process for the works. I feel that a much bigger explanation and provision are needed and that heritors should not just be told that they can appeal, which takes them straight into an adversarial situation. Also, what would heritors be appealing? It would be the assessment of the cost of the works. They would not have the right to appeal against the actual requirement for the works or the tendering process. Therefore the proposal directs the right of appeal to a very narrow part of the overall picture. It needs to be much broader.

At one of the very first heritors’ meetings that I attended, which was probably back in 2015, there was a real sense—this is my view; Jo Guest may disagree—that people wanted to know what the proposal was all about, why we were being charged, what the pow was and what the associated costs were. The approach should not be just to say that heritors can appeal against the assessment of the cost of works, which is quite a narrow part of the overall picture. The right of appeal needs to be much broader than that. If a contractor states that it will cost me £X to dig the pow, but I say that I do not think that it will cost that much and I appeal against it, we will have to go to an expert. Who will that expert be?

Alastair McKie

The expert will be appointed by, I think, the Association of Drainage Authorities, because we would be looking for an expert who would be a surveyor, I imagine.

Tom Davies

11:08 Meeting suspended.

11:15 On resuming—

The Convener

I invite the promoters to put their case.

Alastair McKie

Thank you, convener. The promoters stand by the oral and written evidence that has already been given to the committee. In particular, the promoters rely on their responses to all three objections to the pow bill and the written representations, as set out in the letter on their behalf to the committee clerk dated 6 September 2017, which has been encapsulated in the committee papers. I respectfully request that the committee takes that as read and I will develop four points before we move to questioning.

The first point—I just have headings—is the drainage function of the pow. The principal function of the pow and the 1846 act relate to maintaining effective drainage. The function of the commissioners in paragraph 1 of schedule 1, following that in the 1846 act, is also to maintain effective drainage and is not specifically about flooding, although flooding is indirectly related to effective drainage, as I have pointed out. Although the consequence of effective drainage might be to alleviate flooding in certain areas of benefited land, the central purpose of the pow bill relates to drainage. Benefited land, as defined in section 27 of the bill,

“is the land drained by the Pow”,

as shown on the parliamentary plans.

The second point that I want to advance is on the reasons why a reassessment, in the sense of a resurvey, is not required. In my questioning of Mr Davies, I indicated why that is not needed. The promoters have stated in oral and written evidence that the basis for identifying the benefited land in the pow bill is the original survey plan that was prepared for the 1846 act. The promoters believe that the original survey plan identifies benefited land and remains accurate and, in the promoters’ view, there is no evidence to the contrary. In preparing the parliamentary plans for the pow bill, the promoters have examined the enclosures and fields shown on the benefited land on the 1846 plan, and have faithfully transferred them on to the parliamentary plans. Therefore, there is no reasonable basis for any reassessment of benefited land to be undertaken, nor is it necessary.

So am I right in saying, then, that at the time that the plan was drawn up, the land was undeveloped and that it was subsequently developed for a sawmill?

Jo Guest

Yes. It would have been agricultural land.

The other change on the survey plan is, as Hugh Grierson has just pointed out, the railway; there was no railway in 1846. Of course, it was closed by Mr Beeching, but a railway was constructed in the area.

Alastair McKie

Thank you, Mr Guest. I have a couple of other questions, the next of which relates to the imposition of a cap or ceiling. As the committee will know, the promoters oppose a cap on the annual assessments because it might place an unworkable and unacceptable limitation on the exercise of the statutory duty of the commissioners in repair, maintenance and improvement in order that the pow’s drainage operates effectively. However, there is perhaps a relationship between the right of appeal that is being suggested by the promoters and a cap, in that it would allow some check and balance to be exercised by heritors, should they choose to do so.

The right to a review or appeal to an independent expert was suggested in the promoters’ letter of 11 October 2017 and it might be helpful if I were to unpack that a little. As committee members are aware, the principal concerns of the commissioners about introducing a right of appeal related to cost, efficiency and speed, as well as fairness to all heritors. As has been illustrated by the promoters in evidence today, if one heritor seeks an appeal, the cost of that appeal must be borne by all the heritors. It is a unique position to have a right of appeal when there are a limited number of people who have to contribute to the cost of processing the appeal and paying for it whether it succeeds or fails. That is why we introduced the concept of 10 or more heritors having to agree to exercise that right.

The commissioners also gave serious consideration to individual rights of appeal on the basis that, because there was going to be an impact on costs—whether the appeal succeeded or failed—the independent expert should be given the right to award costs. However, because we are dealing with relatively small sums, the existence of a right to award costs would be a deterrent to those who might want to appeal; the appeal might be a few hundred pounds—they might be £500—but if the costs were awarded against the appellant, they would be enough to negate that right of appeal. That is why we moved away from the idea of having a right of appeal by just one heritor towards a combined weight of heritors, such as 10.

In our discussions, we considered to whom the right of appeal should be made. We opted for the independent expert appointed by the Association of Drainage Authorities because we thought that that would be faster. We considered arbitration but decided that it would be too lengthy. We are dealing with a relatively short window in which to set the budget. We considered using the Lands Tribunal for Scotland and the sheriff, but we decided that they would be too costly and not quick enough in their decision making.

Jo Guest

Have you talked about the timetable? Up to now, the process is that we check the pow around February and carry out work in the summer months—partly because of SEPA and partly for the practical reason that the water is low in the summer months and, if the banks are disturbed, they have time to grass up again before the winter floods. We always aim to do the work in the summer, which means that we have to book the contractor by April, to be certain that he will turn up. That means that we have to instruct the contractor by March. We inspect the pow in February, we decide what the priorities are, we have a meeting to confirm what needs to be done and we then instruct the contractor, so that he has plenty of time and notice to do the work.

What is proposed is a review, followed by an appeal process. We would have to allow time for that, working backwards from booking the contractor in April, so, instead of deciding on the work in March, we will have to decide on it two or three months earlier, or even as early as October or November. The budget will inherently be less accurate, because we will not know at that point what damage will be done to the pow over the winter months. We will also not know whether there will be an appeal. Therefore, we will have to include in the budget a provisional sum for winter damage and for a potential appeal. When we get to spring, we will know whether an appeal has been made and what damage has been done over the winter, at which point we will be able to confirm the work to be done.

11:30

Alastair McKie

The commissioners have been reflecting on the preliminary stage report and, indeed, the preliminary stage debate, and whether it would be possible to offer additional protection. I will unpack that for you, and you may have questions afterwards.

What may be possible—I stress that this is not the commissioners’ preference, because they think that the proposal that we have on the table involving 10 heritors is adequate—is to introduce a right of appeal for any heritor. A heritor could lodge an appeal if the draft annual budget were to exceed, for example, three times the index-linked £20,000 annual assessment. Therefore, if the budget were to increase to £60,000, a heritor would have an automatic right to appeal against the budget to an independent commissioner. Although that would not quite be a cap, it would be similar to a cap.

Mr Davies’s charge under a £20,000 budget would be £51; if that tripled, he would have an automatic right individually to a right of appeal to have the matter looked at, to see whether the budget was acceptable in terms of the legislation and in the judgment of the independent commissioner. We are using that £20,000 budget figure as the benchmark—as the base—but the amount would be index linked. Therefore, the bill will go up and, in that example, the amount would be three times the index-linked figure.

In effect, there would be two rights of appeal—one would be for the 10 heritors, who could appeal whatever the budget is set at; the other one would be for individual heritors, who could appeal if, for example, the budget increased threefold. As I say, that would not be our preference, but those two rights of appeal could operate in combination. We have reflected on the matter, and I know that you feel strongly about rights of appeal. We are certainly open to discussing the matter further if you have questions about the issue.

That is all that I have to say in presenting our case. We would welcome any questions from Mr Davies, or from members.

Jo Guest

Tom Davies

On 13 January 2015, McCash & Hunter sent me a letter explaining that

“The Pow Commissioner’s charge is levied for the purpose of ensuring the Pow Burn is cleared and dredged so as to prevent flooding of the lands in this area.”

The letter goes on to say:

“Your property benefits from these works, in the absence of which you will be at risk of flooding”.

The note for the heritors’ meeting at Gask hall on 2 March 2015 says:

“It is therefore vitally important that the Pow is maintained to prevent flooding in this area.”

The consultation paper that was prepared by the Pow of Inchaffray commissioners in May 2016 repeats that line. It states:

“It is therefore vitally important that the Pow is maintained to prevent flooding in this area.”

It has been stated several times that

“It is ... vitally important that the Pow is maintained to prevent flooding in this area”—

which, it is fair to assume, includes my house—but there is no evidence to support that. Flooding has been identified as a minor issue. There has been no hydrological assessment. As Jo Guest says, it is a side issue.

All my neighbours and I have been under the impression, from the documentation, that flooding is an issue, although I have maintained my position from the outset. If flooding is not an issue, why does the documentation repeatedly say that it is “vitally important” that it is prevented?

Flooding is an emotive issue. We see pictures of people’s houses flooded on the news and think, “I don’t want that to happen to my house.” However, there is no evidence whatever to support the statement that

“It is ... vitally important that the Pow is maintained to prevent flooding in this area.”

We do not know how people would have reacted to the bill if that statement had not been included in the consultation documents at the outset.

I am surprised that it is still being maintained that it is “vitally important” that the pow is maintained to prevent flooding, because there is no evidence to support that.

Alastair McKie

I will answer your question, at least in part. On flood risk mapping, one of the conclusions in the preliminary stage report is:

“The Committee also notes the comments from the Scottish Environment Protection Agency which indicate that its flood risk mapping should not be used to assess the land which benefits from the Pow.”

Another conclusion that was reached is:

“Having visited the area in question, the Committee is satisfied that the drainage the Pow provides is essential for the drainage of surface water and waste for the houses in the Balgowan area.”

Tom Davies

That is a helpful clarification, but the point that SEPA makes about benefit from the pow is different from the point about flooding. SEPA is not saying that the land might be at risk from flooding; its point about its map is a different one.

Tom Davies

An hour ago, was it? I will look at the questions that I have prepared. I do not want to make points just for the sake of it.

Making my final points in summing up, rather than continuing to question, might be a quicker way to get to what I wish to state. Would that be okay?

The Convener

Yes. Thank you, Mr Davies. I invite the promoters to make any final points that they wish to make in summing up.

Alastair McKie

Thank you, convener. I will be brief. In the promoters’ view, benefited land is properly identified on the parliamentary plans that are before you.

In terms of fairness and proportionality, the promoters maintain their position that the basis for charges under the pow bill—an annual assessment—is fair and equitable across all the different categories of land: agricultural, woodland, amenity, commercial and residential. Those are the categories of land that benefit directly from the pow.

As the commissioners are all heritors, they will continue to have a strong and vested interest in avoiding unnecessary expenditure and in minimising the level of the annual assessment.

It is considered that the rights of appeal review that were suggested by the commissioners, and indeed the new right that I announced today, are both present and proportionate and have regard to the unique circumstances of the commission.

The Convener

Thank you. I invite Mr Davies to make some closing remarks.

Tom Davies

Having listened to the points that have been made today, I maintain that the proposed bill is unfair, disproportionate and lacking in any evidence base. It will confer significant power on to a small group of landowners who are very much the minority of those who are covered by the bill.

I believe that my property should be removed from the benefited land because I do not discharge anything into the pow, nor does it provide any flood mitigation benefits to me. I do not own any of the systems that discharge water into the pow, so why should I be charged?

The balance of power in the bill is wrong. The promoters should reassess the mechanisms to protect heritors and ensure transparency and value for money, and they should stop significant annual charge increases.

I will make a couple of supplementary points. I presume that the pow was maintained in good order prior to the construction of the Balgowan estate, yet it seems that a tremendous amount of income is derived from the properties at Balgowan under the previous assessment, and there has been no new assessment of the impacts of Balgowan. Therefore, I consider the bill to be disproportionate.

I presume that, prior to Balgowan being built, the pow was managed and maintained correctly. Balgowan was then built, and, although it has had an impact and the charge should be resolved for that impact, Balgowan’s charge has been set at 40 per cent of the total bill, which is disproportionate to the benefit that Balgowan receives.

Secondly, there has been no assessment of the actual relationship between the pow and the land of the differing land ownerships. For example, the Balgowan estate benefits in some way and inputs in some way, but a farmer benefits greatly because of the pow’s potential to remove flood water from their property and their impact on the pow is very significant. We have also not considered the intensive ploughing work that takes place in the catchment. When ploughing takes place and there is significant rainwater, silt is washed into the pow, and I would argue that the most significant costs for the maintenance work on the pow are for digging out that silt. Therefore, farmers both benefit from and impact the pow the most, and no proper assessment has been made of that.

Lastly, the consultation process that was undertaken prior to the introduction of the bill was poor. I asked whether any changes to the bill had been made as a result of the consultation and for a record of the comments that were made. However, as of today I have not received any of that information. I can only assume that the bill that has been introduced to Parliament is exactly the same as the one that the commissioners drafted prior to the consultation being undertaken.

I conclude my summing-up on that point.

The Convener

Thank you very much, Mr Davies. On behalf of the committee I thank everyone for attending today. The next meeting of the committee will be on Wednesday 17 January 2018 at 10 am, when it will be for the committee to consider the objections to the bill and its consideration report.

It just remains for me to wish everyone a happy Christmas and a very good new year.

11:59 Meeting continued in private until 12:37.

13 December 2017

Third meeting at Consideration Stage

Third meeting at Consideration Stage transcript

The Convener (Tom Arthur)

Good morning and welcome to the first meeting in 2018 of the Pow of Inchaffray Drainage Commission (Scotland) Bill Committee. Due to the late start, I thank our guests for their patience.

The first item on our agenda is further evidence from the promoters of the bill and their agents. I welcome the witnesses who are before us.

Since the committee last met, on 13 December 2017, it has received several additional written submissions about the Pow of Inchaffray Drainage Commission (Scotland) Bill. They include submissions and sketches from an individual, Peter Symon, who has concluded that the land plans that the promoters submitted when the bill was introduced are not accurate. The plans fundamentally underpin the bill by showing the benefited land and, therefore, who should pay towards the upkeep of the pow, so it is critical that they be as accurate as possible.

This evidence-taking session has been arranged to give the promoters the opportunity to respond to the issues that Mr Symon has raised and to give the committee the opportunity to ask questions. There will also be an opportunity for questions to be asked regarding other new issues that are raised in the other submissions that have been received since the previous meeting, including a submission signed by 61 residents of the Balgowan estate.

Would the promoters like to make an opening statement?

Alastair McKie (Anderson Strathern)

Yes, convener. Good morning to you, the committee members, the clerk and others. You should have before you documents that I have presented this morning. I think that there is an opinion of counsel, of which you were sent a copy earlier this week.

I plan to refer to five documents: the opinion of Mr Robert Sutherland, an advocate, which is dated 19 January 2018; a copy of the Pow of Inchaffray Drainage Act 1846; a copy of the 1848 plan; a copy of the book of reference and estimate of expense, which is dated 1847; and a copy of the estimate of increased value, which is dated 1851. Those are all in the pack that you have, so I will not go into the documents in too much detail; I will just summarise the promoters’ understanding.

If you have those documents before you, I start with a sincere apology on behalf of the promoters and their advisers for the inconvenience to all concerned in there now being a requirement for the promoters to provide replacement parliamentary plans to identify properly and robustly the benefited land for the purposes of the bill. As there will be new heritors as a consequence of new parliamentary plans, they will need to be notified and there will be a requirement for an objection period.

It is necessary for me to explain how the error occurred and the promoters’ proposals for remedying the situation. The promoters’ witnesses have provided evidence to the committee that the benefited land—I will, for convenience, refer to the red-line boundary, because we can think in terms of that—that is shown on the existing bill plan matches exactly that set out for the 1846 plan, a copy of which I provided to the committee at its meetings on 24 May and 13 December last year. I have also provided such evidence on the basis of the commissioners’ instructions. The promoters require to clarify that, although the existing bill plans were based on the 1846 plan in their preparation, the exact boundaries were finalised using the experience and knowledge of Mr Guest as a qualified surveyor and experienced commissioner.

On 11 December 2017, your clerk drew my attention to an archival website called ScotlandsPlaces, where copies of the documents that you have before you can be viewed. That was the first time that the promoters were aware of those documents and that they were available and could be examined. Those documents are: a copy of the 1848 plan; a copy of the book of reference and expense, which is dated 1847; and a copy of the estimate of increased value, which is dated 1851. Those are the three documents that the promoters were unaware were available.

The 1848 plan having been checked against the 1846 plan, it was noted that they were substantially the same, although the 1848 plan is certified as having been adjusted from the 1846 act. That may be the one that we should use, but I will return to that point when I consider Mr Symon’s latest submission, which I read just earlier this morning.

After the promoters gave evidence on 13 December 2017, your clerk drew my attention to a submission by Mr Symon that is dated 12 December 2017, which provides for an assessment of benefited land having regard to all three documents that I just mentioned. A copy of Mr Symon’s submission was subject to a preliminary examination, Mr Guest arranged to meet Mr Symon and a meeting duly took place between them on 20 December 2017. At that meeting, the potential for an amendment of the existing bill plans became clear in the light of those newly available documents. I then called your clerk on 20 December 2017 to advise him of the matter. In fact, I spoke with him on 21 December and summarised the outcome of the meeting between Mr Symon and Mr Guest.

It is, of course, vital that the replacement plans be as accurate as they can be. The commissioners have, therefore, sought an opinion of counsel on the correct interpretation of the 1846 act, which has been circulated today and was sent to your clerk on Monday this week. In particular, the commissioners asked counsel to provide advice as to how the 1846 act defines land in respect of which assessments are made in order that the commissioners can provide detailed instructions to their surveyors for drawing up replacement plans to identify benefited land for the purposes of the bill.

11:00

As you will know, counsel examined the 1848 plan, a copy of the book of reference and estimate of expense and a copy of the estimate of increased value, copies of which members have before them. Counsel’s opinion describes the broad purposes of the 1846 act, which include the provision of powers to the commissioners to undertake works to the pow and to appoint surveyors to undertake an accurate survey of the lands adjacent to the pow.

A plan and book of reference were to be made once the works were completed, and the commissioners were to complete a second survey in order to establish the extent to which the land had increased in value as a consequence of those works. All the expense of the works was to be recovered

“by way of an assessment raised and levied on the owners of the land”.

That is, in summary, the way in which the 1846 act operates.

Counsel’s opinion indicates limitations inherent in the work that was done under the 1846 act. Although the schedules of land and valuations would allow one to know the extent of the land, no precise boundary lines are given in the sense of a red line. Counsel states:

“There is no consistent clear ‘red line’ identification of the boundaries of the land that has benefited from the works”.

Professional judgment is, therefore, required to establish precisely the red line.

Counsel notes that some buildings appear on the 1848 plan and that it is “a reasonable inference” that they would not benefit as they would not have been built on a site that was affected by drainage problems. It is, therefore, the promoters’ intention to exclude such buildings. Further, counsel notes that

“the penultimate page of the Report accompanying the Book of Reference states that”

the works to Dollerie farm should be excluded because of an agreement made between the then owner and the commissioners. For that reason, the promoters wish to adhere to that approach.

Counsel is clear that, in drawing up replacement plans to identify the benefited land, the promoters’ surveyors must have regard to the 1848 plan, a copy of the book of reference and estimate of expense, a copy of the estimate of increased value and the buildings that existed in 1846. Counsel is also clear that the Dollerie lands ought to be excluded.

Counsel advises that

“Where there are ambiguities ... it would be reasonable ... to resolve the ambiguity by reference to what can be ascertained on the ground.”

Counsel has further identified three residential properties at Nethermains of Gorthy that require to be included in the replacement plans together with a house at Millhill. Notification will be required for those new heritors.

It is important to make it clear that, although the 1846 act identifies land that has been improved as a result of works to the pow and provides for valuations on what I will describe as a plot-by-plot basis, the bill uses the land that was improved under the 1846 act as a proxy to identify the red line for the benefited land in the bill. The bill does not provide individual assessments on a plot-by-plot basis but uses valuations that are based on the categories of land, such as agricultural, commercial, woodland, residential and amenity.

If the committee is content with that methodology, it is the promoters’ intention to instruct Mr Willett, in particular, to draw up the replacement plans in line with the methodology endorsed by counsel. Mr Guest will also be involved in that exercise.

From a preliminary assessment, four residential properties require to be included and notified: the three houses at Nethermains of Gorthy and the house at Millhill. Further agricultural land, including land at Nethermains of Gorthy, will require to be included and its owners to be notified. Some agricultural land will now be excluded.

There will be no change to the residential benefited land at Balgowan. The plans having been looked at again, it is also considered that there will be an additional requirement to notify the owners of amenity land at Balgowan, but no such assessment is made against amenity land—it is a nil assessment.

We have been given a copy of Mr Symon’s latest submission only this morning, so we have not had time to fully digest it, but my broad take on what he is saying about counsel’s opinion is that he broadly endorses it. The last sentence of his comments is of some significance, because he refers to a further plan of 1851, which he says is currently unavailable. The promoters were not aware of that plan, and nor was I until we saw that submission this morning. To deal with that issue, it is important that the promoters urgently contact the National Records of Scotland to see whether that plan throws up a different situation. It is expected that it will follow the 1848 plan, perhaps with some minor adjustments, but beyond that, without having seen it, we cannot comment.

I finish by repeating the promoters’ and my own sincere apologies. We await your questions.

The Convener

11:15

The Convener

Are you aware of any other plans, in addition to the 1851 plan?

Jo Guest

Not unless another rabbit comes out of the hat.

The Convener

Given that rabbits have been coming out of the hat with alarming regularity, have you undertaken any work to establish whether there are any further plans?

Alastair McKie

Following today’s meeting, the promoters will make urgent contact with the National Records of Scotland to obtain a copy of the 1851 plan. Mr Symon seems to be very knowledgeable about these matters, and the promoters would like to liaise with him in future on methodology. I do not know how he became aware of that plan. He could have mentioned it in his most recent two or three submissions, or drawn it to our attention last week, but he has mentioned it at the last minute today. You might ask why we are relying on Mr Symon. We are not necessarily relying on him, but he seems to have not inconsiderable local knowledge.

What is the justification for retaining the provision?

Jo Guest

Mary Fee

Had no work been done at Dollerie, what would the impact have been on Mr Murray’s property?

Jo Guest

It would have made no difference to him at all. If the work had not been done, he would not have had to put up with all that disturbance and mess.

Going upstream, we have been able to deepen the pow by about 2 feet, which does not sound like much, but is very significant. It has added considerable benefit to everybody upstream, all the way up to Balgowan.

Mary Fee

So if no work had been done at Dollerie, it would have had absolutely no impact on Mr Murray?

Jo Guest

No. I do not think that it would have had—

Mary Fee

You do not think, or you know?

Jo Guest

I know. He derived no benefit from the work that we did in 1995.

Hugh Grierson

Jonny Willett

We acknowledge that our original plans were based on the 1846 plan, which was a photocopy, but too much subjectivity was put into them and local knowledge adapted to them. Since Mr Symon’s revelations, we have acknowledged that we have been weak and poor in this area and we intend to liaise with Mr Symon to find out his sources and work with him to ascertain whether the 1851 plan is the final plan that should be followed. We will map that to the red line boundary as far as we can tell from the 1851 plan.

Any areas of subjectivity will use an element of local knowledge or expertise. We will look at Mr Symon’s opinions on it and that will be reported. Any area of subjectivity will be documented and highlighted to the committee.

We think that that is the best way to rectify what has been a mistake on our part.

Mary Fee

What work will you undertake to ensure that the evidence that Mr Symon has brought to light is accurate?

Jonny Willett

First, we need to have sight of the 1851 plan to make sure that it is authentic and in a workable condition. We will then do our own independent research along with Mr Symon’s input to ascertain that there are no more plans. The 1846 act refers to the 1846 plan, the 1848 plan and the 1851 plan and to no other plans. I am just looking for confirmation of that.

Alastair McKie

I believe that to be the case, but it is something that we need to verify.

Mary Fee

We have always striven for that.

Hugh Grierson

Yes. We are definitely in favour of finding a system of apportioning our costs that is fair, transparent and agreed by all and, so far, we have given that our best attempt.

Alison Harris

Are you concerned that so many heritors—a third of the total number and a large proportion of the residential heritors—have expressed such levels of concern about and unhappiness with the bill?

Hugh Grierson

Obviously, that is a setback. The main point in the recent letter seemed to be about double charging. That is what people at the development talk to me about. They believe that, if Scottish Water were to charge them to take over the sewage works, they would be charged on their council tax bill as well as being charged for the commission’s costs, and they consider that to be double charging. We do not consider that to be double charging, as we do not see any overlap in our services. Scottish Water would be processing dirty water, treating it and releasing it into the pow. Our job would be to take it uphill and out of the catchment. Unfortunately, we think that Scottish Water’s charges are applicable throughout the country and that, for people who live in the pow benefited area, that is an additional charge which it is fair and reasonable for them to pay.

Jo Guest

We also have to consider the fact that the properties of the people on the Manor Kingdom development are connected to the waste water treatment works, which is currently being run by the developer’s successors at no charge. If we compare their situation with that of all the other people with residential properties on benefited land who have septic tanks, we see that they pay the pow assessment and also the costs of maintaining and emptying their septic tanks. To get a septic tank emptied costs about £250. If the septic tank needs to be replaced, a typical septic tank for a domestic property costs between £3,000 and £4,000 to replace. Those costs have to be met entirely by the house owner. That means that they are paying the cost of their sewage treatment, so to speak, and they are paying the pow commission for their outfall.

If the Manor Kingdom residents end up having to pay the pow assessment for the outfall and the council tax supplement for the maintenance of the sewage works, it seems to me that they will be in exactly the same position. It would be inconsistent, compared with the people who have septic tanks, if they did not pay the pow assessment.

Alison Harris

Okay. I will move on and ask a couple of questions about rights of appeal.

I certainly think that it is good practice.

Jo Guest

The Convener

The Convener

I thank the promoters and their associates for attending. Clearly, there is a lot to consider and reflect on. The committee will await the outcome of the mapping exercise, correspondence regarding Mr Guest meeting the Association of Drainage Authorities to discuss a potential future assessment and correspondence regarding other matters, including which method of indexation the commission will seek to use. The correspondence on mapping and a potential future assessment will help to inform our understanding of the commissioners’ position with regard to the Dollerie area.

I again thank the witnesses for coming along and suspend the meeting to allow them to leave.

12:05 Meeting suspended.

12:06 On resuming—

The Convener

Agenda item 2 is consideration of the three objections to the bill. In light of this morning’s evidence on the land plans, I propose that we defer further consideration of the objections until the situation with the land plans has been clarified. Is that agreed?

Members indicated agreement.

The Convener

Given the circumstances that we now find ourselves in, the date of the committee’s next meeting is not yet known. We will provide notification of that on our website once the date has been confirmed.

Meeting closed at 12:07.

24 January 2018

Fourth meeting at Consideration Stage

Fourth meeting at Consideration Stage transcript

The Convener (Tom Arthur)

Good morning and welcome to the second meeting in 2018 of the Pow of Inchaffray Drainage Commission (Scotland) Bill Committee. The only agenda item is consideration of a recent written submission from the bill’s promoters, following the oral evidence session at our last meeting, which was on 24 January 2018.

Members will recall that, at that meeting, the promoters acknowledged that the land plans that were submitted by them when the bill was lodged were not accurate. As the plans fundamentally underpin the bill by showing the benefited land, and therefore who should pay towards the pow’s upkeep, it is critical for them to be as accurate as possible.

At the meeting, two possible options for next steps were clarified. Under the first option, the promoters would commission Savills to redraw the land plans, using all the available information—the plans from 1846 and 1848 and the two books of reference and valuation from 1847 and 1851. The promoters also stated that they would try to gain access to a plan from 1851 that they had not seen but which was held by the National Records of Scotland. The second option was to undertake a complete new reassessment of the land, and the promoters were going to meet the Association of Drainage Authorities to explore the viability of that option. The promoters stated they would write to the committee once they had decided which option they wished to pursue.

We have now received a written submission from the promoters confirming their conclusion, following the meeting with the ADA, that the second option would be prohibitively expensive and unnecessary and that the best way forward would be the first option—in other words, Savills would be commissioned to redraw the land plans based on all the available information. The submission includes a note of the meeting with the ADA, as well as a memorandum from Jonny Willett at Savills confirming that the 1851 plan—which is actually from 1850—has now been accessed and can be used in the preparation of the new plans.

The submission also comments on the Dollerie lands issue, asks the committee for a view and confirms that the promoters are content for the bill to be amended to allow up to three Balgowan section commissioners, which gives a total of nine commissioners and a quorum of five, and that it is proposed that the retail prices index be used to link the budget in terms of the right to appeal an index-linked annual budget in excess of £60,000.

We will now address the action points that are set out in our papers. First, do members have any views on the promoters proceeding as proposed and commissioning Savills to redraw the land plans based on the available plans and books of reference?

Alison Harris (Central Scotland) (Con)

I think that that is a very positive way of moving things forward.

Mary Fee (West Scotland) (Lab)

It is a sensible approach.

The Convener

Are we content to invite the promoters to submit the new plans and explanatory report to the committee by 6 April, if possible, to give time for them to be prepared?

Members indicated agreement.

The Convener

Do we agree to invite the commission to submit an explanatory report along with the new plans detailing the points that are set out in the paper?

It certainly represents progress.

Do members have any comments on the promoters’ intention to use the RPI to index-link the budget for the purposes of an individual right to appeal an annual budget in excess of £60,000?

Mary Fee

I agree with the approach.

Alison Harris

As do I.

The Convener

If there are no other matters that the committee wishes to discuss, I thank members for attending. The clerk will communicate the outcomes to the promoters.

At its next meeting, the date of which will be determined in due course and communicated on the Parliament’s website, the committee will consider the new land plans and the accompanying draft report.

Meeting closed at 10:09.

7 March 2018

Fifth meeting at Consideration Stage

Fifth meeting on amendments transcript

The Convener (Tom Arthur)

Good morning and welcome to the third meeting in 2018 of the Pow of Inchaffray Drainage Commission (Scotland) Bill. The only item on the agenda today is to consider the new land plans and accompanying explanatory report submitted by the promoters of the bill. Members will recall that, at the previous meeting, on 7 March 2018, which followed the promoters’ acknowledgement that the land plans submitted by them when the bill was lodged are not accurate, the committee noted the promoters’ intention to commission Savills to redraw the land plans, and agreed to invite the promoters to submit an explanatory report, as set out in the committee papers, alongside the new plans.

The new land plans and accompanying explanatory report have now been submitted to the committee and are contained in the papers for this meeting. I would therefore welcome comment from members on the new plans and explanatory report.

Before I do that, however, I would like to note that the explanatory report that is included in the papers contains an error that the commissioners have since drawn to the clerk’s attention. I can confirm that the commissioners’ intention is to write to all heritors to invite them to a public meeting to explain and discuss the issue, rather than writing only to new heritors, as the report states. Members should therefore ignore paragraph 17 of the paper, which asked us to consider that issue. I should also note that that is ultimately for the commissioners to determine, at this stage in the process, before any formal objection period that may follow.

The committee may also wish to consider advising the commissioners on any references that they make in communications to heritors to the committee, its timetable and the process of its remaining consideration stage scrutiny, including confirming that the length of any formal future objection period will be for the committee to decide.

Are members content with that approach?

Meeting closed at 10:07.

9 May 2018

Sixth meeting at Consideration Stage

Sixth meeting at Consideration Stage transcript

The Convener (Tom Arthur)

Good morning and welcome to the fifth meeting in 2018 of the Pow of Inchaffray Drainage Commission (Scotland) Bill Committee.

The only item on our agenda today is for us to screen the amendments to the bill that have been lodged and to apply two tests. The first test is whether the committee is of the view that any of the amendments adversely affects private interests. If any such amendment is identified, the committee will apply a second test: we will consider whether the amendment has sufficient merit that there is a possibility of its being agreed to after further scrutiny. If the committee is of the view that any amendment passes both tests, consideration of the amendments will be paused to allow for a notification and objection period.

I invite members to consider whether any of the amendments adversely affects private interests.

Alison Harris (Central Scotland) (Con)

Amendment 9 meets the test.

Mary Fee (West Scotland) (Lab)

I agree.

The Convener

We agree that amendment 9 meets the test. Do other amendments adversely affect private interests?

Mary Fee

No. The other amendments are sensible amendments that relate to matters on which we have been working with the promoters, to strengthen the bill.

Alison Harris

I agree.

The Convener

Okay. The committee agrees that only amendment 9 adversely affects private interests. Amendment 9 relates to the new land plans that the promoters of the bill have brought forward.

We move on to the second aspect of the screening process. Do members agree that amendment 9 has sufficient merit that there is a possibility of its being agreed to after further scrutiny?

Alison Harris

Yes, I agree that that is the case.

The Convener

Okay. I confirm that it is the committee’s view that amendment 9 adversely affects private interests and has sufficient merit that there is a possibility of its being agreed to after further scrutiny.

As amendment 9 was lodged on behalf of the promoters, it is the promoters’ responsibility to notify people who are affected about the implications of the amendment and how to lodge an objection. However, the committee may specify how that should be done, including how long the objection period should be.

In paragraph 13 of committee paper POI/S5/18/5/1, there is a suggestion that the promoters should contact all heritors whose private interests would be adversely affected, that is, new heritors and heritors who are potentially facing a substantial increase in their assessment. What are members’ views on the suggestion?

Alison Harris

That seems fair.

Mary Fee

It is a sensible approach, convener.

The Convener

Okay. We are content with that approach.

On the objection period, as it says in paragraph 14, given that the committee is not scheduled to meet until 12 September, we could consider allowing a 60-day period for objections, which would mirror the preliminary stage objection period.

Mary Fee

I agree that we should do that.

Alison Harris

I agree.

The Convener

Okay.

That concludes our consideration of the amendments. The clerk will liaise accordingly with the promoters of the bill and the committee’s web page will be updated.

A letter and updated schedule of heritors has been received from the promoters and has been published on the Parliament’s website.

The committee’s next meeting will take place on Wednesday 12 September 2018 at 10 am. We will take evidence on any objections lodged to amendment 9 or, if no objections are lodged, begin proceedings on the amendments to the bill.

Meeting closed at 10:03.

20 June 2018

Seventh meeting at Consideration Stage

Seventh meeting at Consideration Stage transcript

The Convener (Tom Arthur)

Good morning and welcome to the sixth meeting in 2018 of the Pow of Inchaffray Drainage Commission (Scotland) Bill Committee.

The first item on our agenda is to take evidence on the objections to amendment 9 to the bill. Two objections to the amendment were received; objectors are here today to speak to those objections. Given the specific nature of each objection, we did not consider grouping them, but will take evidence on each in turn. We will hear first from Mr and Mrs Watkins, who will speak to objection 1. When that has concluded, we will hear from Mr Macgregor, who will speak to objection 2.

Before we proceed, I will briefly explain the process and how the meeting will proceed. We have concluded phase 1 of consideration stage, in which we considered and disposed of objections to the bill, and are now in phase 2, which is the legislative phase.

Fifteen amendments to the bill were lodged, and the committee determined that one of them, amendment 9, which relates to the new land plans that were submitted in April 2018, would adversely affect private interests. A new notification and objection period was therefore allowed for, and the committee set a deadline of 20 August 2018 for objections to amendment 9. Two objections were received and today, as we did with the objections to the bill, we meet in a quasi-judicial capacity to consider those objections.

Once consideration of the objections has concluded, the committee will consider and dispose of the amendments that have been lodged and will consider each section, schedule, and the long title of the bill. At today’s meeting, the objectors and promoters will have the opportunity to set out their arguments and to test those arguments through cross-examination. I will manage proceedings.

Committee members will predominantly listen to both sides, but might come in at times to seek clarification or to help to move things along. I will first invite Mr and Mrs Watkins to set out the points that they wish to make in relation to their objection. The promoters will then have an opportunity to cross-examine them. After that, the roles will be reversed, and the promoter will respond to the points that have been made in the objections and make any other points, and Mr and Mrs Watkins will have an opportunity to cross-examine the promoters.

When we reach the end of the session, there will be an opportunity for each party to make a brief closing statement. The committee will then reflect on what we have heard and come to a view when we meet on Wednesday 26 September 2018. We will then repeat the process with Mr Macgregor.

We now move to the formal evidence session. I encourage all speakers to be as concise as possible. I invite Mr and Mrs Watkins to open proceedings by setting out the points that they wish to make regarding their objection.

Mr Watkins (Objector)

Thank you, and good morning everyone. We thank the parliamentary committee and promoters for inviting us to give evidence today. We have lived alongside the pow for 18 years and have paid our dues for its maintenance regularly.

Our objections are basically as set out in the letter and in appendix 1. As everyone will have seen in the letter, we do not own the Inchaffray abbey site; it is owned by the Earl of Kinnoull. The original planning consent clearly states that the house site, which includes access from the road and the front lawn, is restricted to 0.1 of a hectare, which is just under a quarter of an acre.

I quote from Perth and Kinross District Council planning consent condition 6:

“The site shall be used for residential purposes only and no agricultural or industrial development will be permitted on the site or the immediate vicinity of Inchaffray Abbey.”

I refer the committee also to appendix 1 to the letter from Perth and Kinross District Council planning department that gives the reason for that as being

“In the interests of amenity and in order to protect the setting of Inchaffray Abbey which is category B listed building of Architectural or Historical Interest and is a Scheduled Monument of national importance.”

Historic Scotland classified the abbey site and surroundings as a scheduled monument, protected by the Ancient Monuments and Archaeological Areas Act 1979. As such, further development is extremely unlikely. The scheduled area was moved back from the pow to the south-west corner of the remaining abbey wall after an archaeological excavation was undertaken to facilitate the planning consent for a house in 1987. That excavation was conducted by Mr Gordon Ewart and was published in the Proceedings of the Society of Antiquaries of Scotland. I am showing the committee the paper now.

The proposed house site was altered after the results of the archaeological investigation were known because a large building, the position of which is shown on the little plan in the paper, was discovered. It is just to the west of our house. I am sure that the promoters could have a copy of the paper.

Alastair McKie (Anderson Strathern)

That would be helpful. I do not believe that I have seen that.

Mrs Watkins (Objector)

We got it very recently.

The Convener

It would be helpful if that document could be circulated. Do you have copies with you?

Mr Watkins

No. We just have this copy.

The Convener

I suspend the meeting briefly to give everyone the opportunity to study the document.

10:15 Meeting suspended.

10:31 On resuming—

The Convener

I invite Mr Watkins to continue.

Mr Watkins

I apologise for the delay.

You will see that area 1, which is positioned just to the west of our house, was quite a large area that was excavated by Gordon Ewart and his team. The final summary in the archaeological papers states that

“The evidence still remains largely underground”

and concludes that

“there is little doubt that Inchaffray may yet yield more crucial evidence.”

As a result of the survey, the potential position of the house was moved east to be nearer the road, in an area of 0.1 of a hectare, which could be built on without causing too much damage to the underlying archaeology. The original house plans revealed that all waste water is routed from the west side of our house to the east, then down past the garage to the septic tank in order to avoid area 1 and any other archaeology.

Even though the scheduled area was moved back from the pow to the abbey wall, we were and are required to obtain consent for any disturbance to the ground. Historic Scotland required us to have an archaeological watching brief for the erection of a fence around our proposed vegetable plot, which is at the south-western end of our land, together with raised beds.

Permission for the fence was granted, subject to 10 conditions in the letter that you now have before you. I will not read all 10 conditions, because the most relevant one is that the posts of the fence that are to be constructed around the cultivated area should be inserted by driving them into the ground rather than by their being placed into excavated holes. The reason for that, of course, is to ensure that damage to any archaeological deposits is minimised.

We feel that the assumed value per acre for the land is also too great, as we are not in a housing development situation, and that the promoter’s residential assessment of 0.855 acres is inaccurate.

The area that is outlined in pink on your Ordnance Survey plan is not correct. The actual scheduled area should be from the south-west corner of the abbey to the north-west corner of the vegetable plot and then down to the pow. Neither the vegetable plot nor the front bit in the front garden nor the part of the pond should be in the scheduled area, apparently. The area that we have outlined in blue, which—if you are looking at a photocopy—is between the house and the road, is the 0.1 hectares for residential use. The rest of the land should, we feel, be classed as amenity land.

We have based our original figures for the annual costs on the spreadsheet that we were sent in June by McCash & Hunter LLP, and I understand that those are now incorrect. We also note that the rate has changed, which will affect all the figures.

Our original objection was because the new method for assessing properties had triggered a massive increase of 500 per cent in our annual costs of drainage. We note from the new schedule for heritors, which we were able to look at only yesterday, that the assessment is now £440.78 plus VAT. That still represents a 59.68 per cent increase, and comes to £528.86 including VAT. Together with the annual charge of £280 for emptying the septic tank, the actual cost to us for waste-water disposal comes to £808.86, because we cannot reclaim VAT. We feel that the increase of nearly 60 per cent is still a large burden for two people.

We are also concerned about the possible financial consequences of updating the bill for all heritors, especially as it may mean a doubling of the initial annual payment after the bill has been passed, to pay for the promoter’s legal costs. If it were doubled, we would be paying £1,057.72 including VAT. Adding the septic tank cost to that would take the total cost to £1,337.72. We do not feel that that potential charge is fair.

The new figures, which we looked at yesterday, do not seem to be correct. On checking column I multiplied by column J, for Inchaffray abbey, we discovered that the figure should be £440.445, as opposed to £440.78, which is 33.5p in the promoter’s favour. When I checked the cheapest annual assessment for 5 Eden Square, which also has two people registered on the electoral roll, I noted that it was £15.47. That is incorrect by 2p: it should be £15.45. I checked some of the other figures for the residential properties and discovered that all the ones that I checked were incorrect by varying amounts, mostly pennies. I then checked the agricultural spreadsheet and discovered similar inaccuracies with the figures when multiplying column 16 by column 17. I used a calculator to do that, so I presume that the spreadsheet has a small glitch in it. Apart from the figures being incorrect for the heritors, that obviously has implications for VAT returns.

Finally, as our house is built on the driest piece of land in the Strathearn valley, we argue that the benefit to us is minimal.

To summarise, in view of Perth and Kinross District Council’s planning restrictions for the residential footprint of 0.1 hectares and the limitations that were imposed by Historic Scotland, we feel that the new method for assessing our property is incorrect. Not only will our private interests be affected by the financial burden—it will also cause difficulty should we decide to sell the property.

I just want us to understand what the dispute is about.

I want to take you through and ask some questions about the pack of documents that I lodged this morning and which you should have had sight of. I should point out that lodged with these papers is the schedule of ancient monuments, which I think that you lodged with your objection, and a copy of your planning permission, which I assume that you will be familiar with.

Mr Watkins

Yes.

Mrs Watkins

I should say that we did not actually build the house—it is the original planning permission.

Alastair McKie

That is understood.

Document 1 is an excerpt from the Ancient Monuments and Archaeological Areas Act 1979. If I have understood it correctly, your case is that the scheduling of the ancient monument—Inchaffray abbey—places a considerable constraint on what can or cannot be developed on your land. That is why you have produced these documents for this morning’s meeting. We see that section 2(1) of the 1979 act says that if anyone

“causes or permits to be executed any works”

that affect the monument without getting consent, it is a criminal offence.

Mr Watkins

It is.

Alastair McKie

And that is how the system of control operates.

Mr Watkins

Yes.

Alastair McKie

Okay. I thought that we would just go through that.

Document 2, which you have produced as part of your objection, is the entry in the schedule of ancient monuments under the 1979 act. The first page mentions

“The monument known as Inchaffray, abbey and early monastic site”,

while over the page, we see the actual legal entry for the monument. At the bottom of the page, we see the registration of that document in the register of sasines, showing that it has been recorded against your title and therefore has effect.

Yes.

Alastair McKie

That is the imperial measurement of that metric.

The condition uses the expression “house site”. What do you understand to be “the house site” for the purposes of your objection?

Mr Watkins

I understand it to mean the house and the garden. I have to say that the area—the footprint—of the actual house and the garage is approximately 438 square yards, which is a lot less than 0.1 hectares.

I think that the people who built the house moved it towards the road, so that the area could be excavated without further damage to any archaeology that may be under the ground to the west of the house. Did what I said make sense?

That is very fair of you.

You also refer to condition 6 of the planning permission, which does not use the term “house site”, but just “site”. It says:

“the site shall be used for residential purposes only and no agricultural or industrial development will be permitted on the site or the immediate vicinity of Inchaffray Abbey.”

That does not place a restriction on use for residential purposes, does it?

Mrs Watkins

Leaving aside the restrictions that you discuss, what is considered to be your garden ground? Why should your garden ground be restricted to 0.247 acres?

Mr Watkins

Because we are not allowed to dig in to any of the scheduled area at all. As I mentioned earlier, area 1, which was excavated, is just to the west—we think—of the house, and it is quite a large area, encompassing 9m by 13m. We certainly would not be able to build anything on that.

Most of this area now is down to grass, which Historic Scotland was pleased with, and it encouraged us to keep it fairly short.

Alastair McKie

Document 5 shows various photographs of your house. Am I correct in saying that we can see some of the outbuildings in the first of the larger photographs?

Mr Watkins

Yes. The greenhouse is on the left, and the workshop is hidden by the trees.

Alastair McKie

The Convener

That means that we will have to suspend briefly.

10:52 Meeting suspended.

10:58 On resuming—

The Convener

I invite Mr Watkins to continue.

Mr Watkins

I am not quite sure where we were.

Our understanding is that the area that I have outlined in blue on that piece of paper and which is nearest the road—the trapezoidal area that includes the house, the front lawn and the access—is the 0.1 hectares and that the rest of the non-scheduled area, which I have put a dotted red line around, should be classed as amenity land. Does that make sense?

Alastair McKie

I can understand your arguments, Mr Watkins. That is helpful.

Could you briefly look at the plan that is attached to document 2? That is the one with the two areas that are outlined in red.

Mr Watkins

Yes. It shows the scheduled area.

Alastair McKie

The area that we are concentrating on is the left-hand area, which is slightly smaller.

You dispute what those boundaries are, but I put it to you that the promoter has sought to draw those boundaries from quite a difficult scale of map and translate them into a larger scale for the purposes of the proceedings today. That is just to explain where we have come from.

In your assessment, leaving aside what you think should be your house and garden area—the dotted blue area—what you have done, using the promoter’s methodology, is increase the blue area to include the pink triangle beneath the abbey, and some additional area that is currently scheduled. What you are saying is that the scheduling is in fact smaller than it appears on the promoter’s plan number 7.

Mr Watkins

I do not think so.

With regard to the logic of what the promoter has done, the promoter is trying to say to you that it is prepared to take a reasonable approach with regard to the area of assessment and say that what you own, minus the scheduled area, is what should be your area of assessment.

Mr Watkins

We would disagree with that, because we think that it should be this 0.1 hectares at the front—the blue area.

Alastair McKie

Yes. I know that we are disagreeing, but I am trying to understand our respective decisions, because we now have slightly conflicting plans.

The promoter is saying that everything that you own, minus the scheduled area, should be part of the assessment of the residential area. That is where the 0.855 acres figure comes from. That area may have to be increased if we were to follow the lines on your new plan. I am saying that that would be the case if you were to follow that same logic. I appreciate that you are disputing it, but that would be the natural consequence.

Mrs Watkins

We are claiming that the bit that I am pointing to here is amenity land rather than—

Alastair McKie

I appreciate that; I am just trying to ensure that we understand our respective positions.

Mary Fee (West Scotland) (Lab)

I would like to ask for a point of clarification. You have redrawn the blue line. When you say that that should be the area that is included for assessment for your property, why do you say that? I am not quite clear about the actual reason why there is a difference between what you say and what promoter is saying.

Mr Watkins

Originally, the planning people said that the house site, which I take to mean the house, the front garden and the access, should be 0.1 hectares. I think that 0.1 hectares is about the size of the plot at the front, although it might actually be slightly bigger than that.

Mary Fee

You have taken the measurement of 0.1 hectares and roughly calculated where that would be in relation to your house.

Mr Watkins

I have tried to triangulate this, yes.

Mary Fee

I understand now. Thank you.

Alastair McKie

I have to put it to you, Mr and Mrs Watkins, that the position of the promoter is not an unreasonable one in terms of identifying what is the beneficial residential area for the purposes of the assessment, which is, in simplistic terms, the area that is coloured blue in document 7, but perhaps nuanced by your redrawing of the boundary of the scheduled ancient monument.

We proposed it as an alternative method and produced alternative workings on that basis. Ultimately, however, it is not for us to decide; it is for the committee to decide.

Mr Watkins

I am sort of getting away from that, really.

We are interested to know how you define residential property, as many of the farms previously had accommodation for agricultural workers.

Jonathan Guest

That is true but, in 1846 or 1851, when the benefited land was defined, there were no residential properties on the benefited land—none at all.

Mr Watkins

If the properties were let or sold to people who are not involved in farming, would the occupants pay the residential rate, would the properties still be combined with the farms or would they have a private arrangement?

Jonathan Guest

All the houses on the benefited land were built after the improvements that were carried out under the Pow of Inchaffray Drainage Act 1846. There were no houses before.

The commissioners consider that the area of assessment should be about 0.855 acres, although there might be a nuance to that once we finally determine the boundary of the scheduled ancient monument, as I said. That should be the area, rather than the 0.247 acres that Mr and Mrs Watkins suggested. The lesser area that they suggested is derived from the terms of their planning permission, which refers to 0.1 hectares, which is 0.247 acres. The commissioners’ view is that that does not form a reasonable basis on which to restrict the assessment.

The promoters have sought to take a reasonable approach. They accept that the scheduled ancient monument creates a restriction—although it has not affected the tree felling and the polytunnel—so that area has been excluded from the assessment. If the area of assessment were restricted to 0.247 acres, that would be about three and a half times smaller than what the promoters think is reasonable use of the garden ground, and one can see from the aerial photograph that it is being used.

That is correct.

Alastair McKie

I just wanted to clarify that with you.

That is fine.

I am just getting to that.

Plan 10 appears to be a plan from 1864, but going back for a moment to plan 9, can we agree that your properties are not shown on the 1850 plan?

Mr Macgregor

That is correct.

Alastair McKie

So they must have been built subsequent to that.

Mr Macgregor

Not necessarily. It depends on when the survey for the land was done. I got in touch with Historic Scotland, but it cannot confirm the exact date for the construction of my property.

Alastair McKie

But the properties are not on that plan, which is the certified one. It is a matter of fact that they are not on it.

I think that you were going to make a further observation about the Carsehead Mill burn and the Downie burn going into the pow.

We will perhaps turn to that in some of the other plans.

Please have document 11 before you, Mr Macgregor, and turn to paragraph 6. I will introduce the context of the document, which is important. It is an opinion of counsel, which the promoter obtained to guide them in the proper interpretation of what should or should not be benefited land. It was unfortunate that your property was not picked up in the first assessment of benefited land, but I reassure you that that has been checked. I will read to you paragraph 6 of counsel’s opinion. It says:

“There was an area of land at Nethermains of Gorthy containing three houses”

—one of which is your cottage, in the centre—

“which was identified at the consultation as having been excluded from the original plans”.

Those are the original plans that we put in. Today, we are dealing with the replacement plans, which include your land as benefited land.

Counsel also talks about

“a further area of land at Millhill”

and goes on to say:

“In respect of both these areas of land, none of those houses are shown as existing buildings on the 1848 plan. They are both areas of ground which can be identified from the Book of Reference, the Estimate of Increased Value and the 1848 plan as having been improved by the works under the 1846 Act. In my opinion both areas ought to be shown on the replacement plans as benefited land. The owners of the houses on that land will require to be notified”,

which is where we are today, as you have been notified.

That is just an explanation and something of an apology—a sincere apology—to you that it was not picked up first time round.

Mr Macgregor

Can I just add something?

Alastair McKie

Yes, by all means.

Mr Macgregor

It says:

“The owners of the houses on that land will require to be notified of the change.”

There are three houses there, but only two owners have been notified. The third has not been notified.

Alastair McKie

I am not in a position to answer that.

Mr Macgregor

I am just saying: if they have not been notified, how accurate is the writing on all these things? Mistakes have been made all over the place.

Alastair McKie

You are entitled to your opinions, but I do not necessarily agree with them.

Mr Macgregor

There were red lines put on a map earlier on, which I believe that Mr Willet was made aware of at the committee meeting, that were in totally the wrong place. I do not know whether you have amended them or not.

Mr Macgregor

Yes.

Alastair McKie

And if you go over the page, the entry that is five up from the bottom on there shows that the rate per acre is 9 shillings. Beside that it says that the increased annual value is £3 8s 3d. I put it to you that, if we look at the document that shows that plot 130 had increased in value, and then go back for a moment to document 9, which demonstrates that your house, Centre Cottage, is built on plot 130, we can see that, in accordance with the documents that are associated with the 1846 act, plot 130 increased in value as a result of the works and therefore your house is on benefited land.

I appreciate that you may not previously have received assessments. The promoters’ position is that it may be that, when the farmland was sold off a contribution was taken from the farmer on it and that, unfortunately, no assessment was made of your property. However, that does not change the fact that your property has been built on benefited land.

I have no further questions, convener.

The Convener

Do the promoters wish to make any other remarks at this stage?

Alastair McKie

I have just one comment, which relates to the document that Mr Macgregor kindly lodged this morning.

12:00

Please look at that document, which shows particulars of sale. On page 3, there is an outgoing for lot 2, which says:

“Pow of Inchaffray Drainage Commission dues to be allocated.”

Lot 3 is my property, and there is no mention in the particulars under lot 3 of any bill for the Pow of Inchaffray drainage commission. That bill is purely for lot 2 and not for lot 3.

I refer back to papers 15A and 15B. Once again, I apologise that I do not have the document with me, but I have seen it. Mr Tait and I worked out the figures and two of the sums on the document are wrong, although I cannot be 100 per cent accurate about which ones they are—I cannot remember, but I can get back to you about that if you need them. The maths for two of them do not add up but, as I said, I do not know which they are. If those sums are incorrect, that needs investigating—it might be for my property at plot 130, but I am not sure. They are wrong though. If such documents are relied on in order to decide whether my property is on benefited land, I expect them to be correct.

As far as maintenance of the Downie burn is concerned, I have lived in my property for 15 years and not once have I seen any maintenance being done on it or in the field down to the pow.

I refer to my original point: I believe that the fact that an altitude of 39.05m is used in the south and an altitude of 39.4m is used in the north means that it is not fair to treat my property as benefited land. What is “benefited land”? Is it somewhere that benefits financially, one that benefits from drainage or one that benefits from flood alleviation? If that is the case, why are the levels at different heights in the north and the south?

I could make a lot of points, especially about inconsistencies in minutes of meetings and so on, but unless they are absolutely necessary I will not do so. I have nothing further to ask. I thank the committee.

The Convener

Thank you, Mr Macgregor. I ask that you write to the committee to set out in more detail the concerns that you raised on documents 15A and 15B. We will ensure that those are also circulated to the promoters and put on the Parliament’s website.

I invite Mr Macgregor to make any closing remarks.

Mr Macgregor

I have one final point. I request that the commission carries out a survey of the entire area that it defines as benefited land. It should include the whole of the pow, use modern techniques, technology and surveying equipment, and determine precisely what is benefited land and what is not. Perhaps that could be done in conjunction with the Scottish Environment Protection Agency’s flood plans, on which our property appears as having zero risk of flooding. In the past, it has been mentioned that the issue here is not about flooding but about drainage, but there have been instances—I referred to them in my original objection—in which flood alleviation has been mentioned.

The Convener

I invite the promoters to make any closing remarks if they wish to do so.

Alastair McKie

I will pick up on the point that Mr Macgregor has just made. The commissioners did consider whether they should carry out a detailed survey to establish the benefited land. They looked into that in some detail and took the decision that it was acceptable for them to rely on the work that had been carried out pursuant to the 1846 act. That is the basis on which the plans have been drawn. There may be issues with how long ago that was, but they were believed to be accurate. Carrying out a survey of all the properties would not be financially viable—it might not even be possible because of land changes and the fact that works have now been carried out. Therefore the promoters are content to rely on the 1846 act. From the assessment of the preparation of the plans that were submitted by Savills in April, the committee will have seen that that is the basis on which they were progressed.

The promoters have demonstrated that Mr and Mrs Macgregor’s house, Centre Cottage at Nethermains of Gorthy, was constructed after the improvement works had been undertaken, and therefore has a dependency on those works having been undertaken. There is therefore no question but that it was built on benefited land. If one looks at the 1850 plan, one can see that Mr Macgregor’s house is not there. It is also not present on the 1846 plan that we went through. There is no doubt that plot 130 was subject to an increase in value as a result of the works, which is the basis for reaching a conclusion that the land has been benefited and is thus benefited land. That is demonstrated by documents 15A and 15B.

In my view, the promoters were correct to include the house. The objectors have the promoters’ sincere apologies for not including it in the first place, but that came to light only as a result of a further assessment earlier this year.

The issue about the Downie burn, the Carse Mile burn or whatever they are called is something of a red herring, because they both drain into the pow. The plans indicate quite powerfully that, historically, works have been carried out to them, as is shown by the dotted line on the 1846 plan of the burn. We can also see that the burn—such as it is—is on a dead straight line, which I think indicates that it is not a natural course of water and has been altered. In the promoters’ view, it has been altered in order to improve its flow. The Carse Mile burn and the Downie burn were included in the 1940 plan so, at some stage, they have had attention from the commissioners. On the current land plans they are identified as being part of the feeder network to the pow.

In summary, therefore, although it is regrettable that the objectors’ property was not included in the land plans earlier, it is correct to include it at this stage. The promoters’ approach on that is consistent with the overall methodology for the entire redrafting of the land plans and the identification of benefited land across all the properties, all of which is set out in the explanatory report that was submitted by the promoters’ agent, Savills, in April of this year.

That is all that I have to say. Thank you, Mr Macgregor.

The Convener

It only remains for me to thank Mr Macgregor and the promoters for attending this morning.

The committee’s next meeting will be on Wednesday 26 September 2018 at 10 am, when we will consider the objections and our second consideration stage report.

The committee will now move into private session.

12:11 Meeting continued in private until 12:32.

12 September 2018

Eight meeting at Consideration Stage

Eight meeting at Consideration Stage transcript

Members indicated agreement.

The Convener

Therefore, the committee rejects the objection in full.

That concludes our consideration of the objections. Objectors will be contacted by the clerk and informed of the decisions taken.

Our next item is consideration of a draft report in private. At the committee’s next meeting, which will be on Wednesday 24 October at 12 pm, we will consider amendments to the bill at consideration stage.

12:04 Meeting continued in private until 12:20.

26 September 2018

Ninth meeting at Consideration Stage

Ninth meeting at Consideration Stage transcript

The Convener (Tom Arthur)

Good morning, and welcome to the eighth meeting in 2018 of the Pow of Inchaffray Drainage Commission (Scotland) Bill Committee. The only item on our agenda today is to consider the bill at consideration stage. We will consider 15 amendments, which have all been lodged in my name on behalf of the promoters. In addition, we are formally required to agree each provision of the bill at the appropriate point. Only members of the committee are permitted to participate in proceedings.

Members should have with them the bill, the marshalled list of amendments and the groupings. In each debate on a group of amendments, I will speak to and move the lead amendment in the group. I will invite other committee members to contribute if they wish before I put the question on the lead amendment. With other amendments, I will move the amendment formally and then put the question.

Section 1 agreed to.

Schedule 1 agreed to.

Section 2—The Commissioners

The Convener

Amendment 1 is grouped with amendments 2, 3 and 14. These amendments concern the number of commissioners and the areas represented. They respond to concerns, which were raised during the committee’s deliberations, that the bill provides for insufficient representation for the Balgowan estate. Amendment 1 increases the total number of commissioners from seven to nine, and amendment 2 increases the number of Balgowan commissioners from one to three. Consequent to that increase, amendment 3 increases the number of new appointments to the commission, following commencement of section 2 of the bill, from four commissioners to six. Amendment 14 increases the quorum of a meeting of the commission from three commissioners to five.

I move amendment 1.

Alison Harris (Central Scotland) (Con)

These amendments enhance accountability and representation over the whole area, and I certainly support them.

Mary Fee (West Scotland) (Lab)

I agree.

Amendment 1 agreed to.

Amendment 2 moved—[Tom Arthur]—and agreed to.

Section 2, as amended, agreed to.

Sections 3 and 4 agreed to.

Schedule 2—Commissioners

The Convener

Amendment 11 is grouped with amendments 12, 13 and 4. The bill as introduced contains some dubiety as to the status of a commissioner who ceases to be a heritor, or a heritor’s representative where the individual represented ceases to be a heritor. The committee took the view that it may therefore be possible for an individual to retain the position of commissioner even if they, or the individual whom they represent, cease to own benefited land. Amendments 11 and 13 therefore ensure that the commission must terminate the appointment of a commissioner where the commissioner, or the individual who is represented by the commissioner, has ceased to be a heritor.

A second issue concerning the termination of a commissioner’s appointment, which the committee considered, was the lack of mechanism available for heritors to dismiss a commissioner for their particular section. Amendments 12 and 4 therefore make provision for heritors to call a meeting whereby a commissioner’s appointment may be terminated on the vote of a simple majority of heritors attending from a particular section.

I move amendment 11.

Mary Fee

The issue of accountability has been raised a number of times during our deliberations on the bill, and there has been a strong feeling that it must include some kind of mechanism that would allow heritors to terminate a commissioner’s appointment. These amendments are very sensible; they strengthen accountability in the bill, and they will give heritors the right to terminate a commissioner’s appointment. I fully support them.

Amendment 11 agreed to.

Amendments 12 and 13 moved—[Tom Arthur]—and agreed to.

Schedule 2, as amended, agreed to.

Section 5—First appointments of Commissioners

Amendment 3 moved—[Tom Arthur]—and agreed to.

Section 5, as amended, agreed to.

Section 6 agreed to.

Schedule 3—Meetings of the Commission

Amendment 14 moved—[Tom Arthur]—and agreed to.

Schedule 3, as amended, agreed to.

After schedule 3

The Convener

Amendment 15 is grouped with amendments 5 and 10. The bill as introduced makes provision for the preparation of annual budgets and the levying of assessments, but an area of concern for the committee was the lack of provision for an appeal process or referral to an independent review. Amendments 15 and 5 seek to address those concerns through the introduction of new schedule 3A and the modification of section 10.

The combined effect of the amendments is to place a duty on the commission to consider heritors’ representations on the budget. Furthermore, they provide a mechanism for the budget to be referred to an independent review process. That can be effected either through formal notification to the commissioner by 10 or more heritors or when the budget exceeds the budget review threshold. Under the bill, the threshold would be set at £60,000 for the first year and then adjusted annually by the percentage increase in the retail prices index of the previous year.

Amendment 10 provides for a definition of RPI in section 27, which relates to interpretation.

I move amendment 15.

Alison Harris

I agree with these amendments. It is essential for annual budgets and assessments to be prepared, and this allows for accounting to be done correctly. It is also correct for the bill to ensure the involvement of an independent process and that the commissioners have a duty in that respect. These amendments are therefore essential to the bill.

Amendment 15 agreed to.

Section 7—Heritors’ meetings convened by the Commission

Amendment 4 moved—[Tom Arthur]—and agreed to.

Section 7, as amended, agreed to.

Sections 8 and 9 agreed to.

Section 10—Calculation of annual assessments

Amendment 5 moved—[Tom Arthur]—and agreed to.

Section 10, as amended, agreed to.

Schedule 4 agreed to.

Sections 11 to 14 agreed to.

Section 15—Land plans

The Convener

Amendment 6 is grouped with amendment 7. A central theme of the committee’s consideration of the bill has been transparency and accessibility, and amendments 6 and 7 seek to simplify access to the land plans and the register of heritors respectively. As introduced, the bill obliges the commission to share the aforementioned documents only to current heritors, but, under these amendments, the land plans and the register of heritors will be made available to non-heritors. That measure will be of benefit to prospective heritors, estate agents and the legal profession. The amendments also ensure that both sets of documents will be made available electronically.

I move amendment 6.

Mary Fee

As you have said, convener, one of our main concerns in our deliberations on the bill has been to improve openness and transparency, and although the amount of detail in these amendments might be quite small, they are nevertheless extremely important in increasing both aspects. Making the land plans freely available will ensure that everyone can see who the heritors are, and people will be able to check them in a number of ways. The amendments are therefore crucial to improving transparency in the bill.

Alison Harris

I absolutely agree. The amendments definitely increase transparency, accessibility and openness.

Amendment 6 agreed to.

Section 15, as amended, agreed to.

Section 16—Register of Heritors

Amendment 7 moved—[Tom Arthur]—and agreed to.

Section 16, as amended, agreed to.

Sections 17 to 19, schedule 5, sections 20 to 24, schedule 6 and sections 25 and 26 agreed to.

Section 27—Interpretation

The Convener

Amendment 8 is in a group on its own. This short amendment changes a reference to the first year of assessment from 2018 to 2019, updating the bill to reflect the first full assessment year under the bill’s provisions, should the bill be agreed to by Parliament.

I move amendment 8.

Amendment 8 agreed to.

The Convener

Amendment 9 is in a group on its own. This short but important amendment updates the definition of “land plans” in section 27 to reflect the revised set of land plans that were lodged with Parliament at consideration stage. It is disappointing that inaccurate land plans were initially lodged with the bill, leading to a protracted legislative process, but it is to be welcomed that the bill’s promoters have reflected on concerns that were raised and have now provided revised land plans.

I move amendment 9.

Mary Fee

Concerns were raised almost at the very beginning of our deliberations about discrepancies in and the validity of the land plans. We understand that this is a very historical piece of legislation—indeed, I think that the land plans that were used were from 1846—and the promoters have undertaken extensive work to ensure that the plans are accurate. I therefore fully support amendment 9.

Alison Harris

I absolutely agree.

Amendment 9 agreed to.

Amendment 10 moved—[Tom Arthur]—and agreed to.

Section 27, as amended, agreed to.

Sections 28 and 29 agreed to.

Long title agreed to.

The Convener

That ends the consideration stage of the bill. It will now progress to its final stage, when it will be considered by Parliament in the chamber. Are members content for me to lodge a motion on behalf of the committee that the Parliament agrees that the bill be passed?

Members indicated agreement.

The Convener

It is with heavy heart that I say that this is expected to be the committee’s final meeting, and I thank everyone who has assisted the committee in its deliberations and who has made a contribution over the past 18 months. In particular, I thank the promoters and agents, the objectors, all who submitted evidence and all members of the committee. I also thank the Scottish Government, particularly the minister Paul Wheelhouse. Finally—and, in many respects, most important—I want to say that I personally owe a huge debt of gratitude to the clerks, who have done a tremendous job, and I thank them.

With that, I close the meeting.

Meeting closed at 12:15.

24 October 2018

Pow of Inchaffray Drainage Commission (Scotland) Bill as amended at Consideration Stage

Debate on the proposed amendments

MSPs get the chance to present their proposed amendments to the Chamber. They vote on whether each amendment should be added to the Bill.

Documents with the amendments considered at this meeting on 13 December 2018:

First Marshalled List of Amendments for Final Stage

First Groupings of Amendments for Final Stage

Debate on proposed amendments transcript

The Deputy Presiding Officer (Christine Grahame)

The next item of business is final stage proceedings on the Pow of Inchaffray Drainage Commission (Scotland) Bill. In dealing with the amendments, members should have the bill, SP Bill 9A, the marshalled list and the groupings of amendments. The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. Members who wish to speak in the debate on any group of amendments should press their request-to-speak button as soon as possible after I call the group. Members should now refer to the marshalled list of amendments.

Schedule 3A—Preparation of annual budgets and heritors’ rights to require review etc

The Deputy Presiding Officer

Group 1 is minor and technical amendments. Amendment 1, in the name of Tom Arthur, is grouped with amendments 2 to 4.

Tom Arthur (Renfrewshire South) (SNP)

The amendments in this group are minor and technical. Amendments 1 to 3 refer to schedule 3A to the bill, which was inserted as the consequence of an amendment at consideration stage and makes provisions for an independent review of assessment. Amendments 1 and 2 make a change with regard to one of the review bodies, the Association of Drainage Authorities. In the bill, reference is made to “the Chairman”. Amendments 1 and 2 remove that reference, future proofing the bill and allowing for any future restructuring that may occur.

Amendment 3 makes reference to another body to which reviews can be referred: the Royal Institution of Chartered Surveyors. The amendment allows for referrals to other bodies in the future. Again, that is a prudent and sensible measure, because of the need for future proofing.

To illustrate the need for future proofing, amendment 4 changes a reference to the original Pow of Inchaffray act, which dates back to 1696—it was an act of the pre-union Scottish Parliament. The amendment changes “the Act of Parliament” to “the Act of the Parliament of Scotland”, as it is a convention that “act of Parliament” refers to an act of the United Kingdom Parliament.

The amendments are very minor and technical, and I am sure that they will be welcomed by the chamber.

I move amendment 1.

Amendment 1 agreed to.

Amendments 2 and 3 moved—[Tom Arthur]—and agreed to.

Schedule 4—Calculation of Chargeable Values

Amendment 4 moved—[Tom Arthur]—and agreed to.

The Deputy Presiding Officer

That ends consideration of amendments. As members will be aware, at this point in the proceedings, the Presiding Officer is required, under standing orders, to decide whether, in his view, any provision of the bill relates to protected subject matter—that is, whether it modifies the electoral system and franchise for the Scottish Parliament elections. In this case, the Presiding Officer’s view is that no provision of the Pow of Inchaffray Drainage Commission (Scotland) Bill relates to protected subject matter. Therefore, the bill does not require a supermajority to be passed at this stage.

13 December 2018

Final debate on the Bill

Once they've debated the amendments, the MSPs discuss the final version of the Bill.

Final debate transcript

The Deputy Presiding Officer (Christine Grahame)

The next item of business is a debate on motion S5M-14447, in the name of Tom Arthur, on the final stage of the Pow of Inchaffray Drainage Commission (Scotland) Bill.

16:34

Tom Arthur (Renfrewshire South) (SNP)

As convener of the committee, I am pleased to open the final stage debate on the Pow of Inchaffray Drainage Commission (Scotland) Bill. Before I comment on what has been an eventful and involving 18 months of work, I thank all those who have contributed to the process, including the promoters of the bill, some of whom join us in the public gallery today; those who objected to the bill and submitted written views; and my fellow committee members, Mary Fee and Alison Harris, whose hard work and commitment made my job as convener that bit easier. Last, but certainly by no means least, I thank the clerks and researchers for their hard work and support throughout the bill’s rather longer than expected journey through Parliament. It has been, and remains, an honour and a privilege to work alongside all our brilliant Scottish parliamentary staff.

Anyone who read Philip Sim’s recent article on the BBC website, which was titled “Dull as ditchwater? Inside Holyrood’s forgotten committee”, will know that what might have been expected to be something of a dry and technical subject has proved to be anything but. Ditch water it certainly is, but it has never been dull—I am sure that my committee colleagues will testify to that in their speeches.

I will give a brief reminder of the background, as we have been called the forgotten committee by some—of course, I made sure that no one in my group forgot that I am on the committee. The private bill was introduced on 17 March 2017, and it is promoted by the Pow of Inchaffray Drainage Commission, which has responsibility for the management, maintenance and improvement of the pow. I am sure that everyone knows what a pow is by now, but, for anyone who is still in the dark, “pow” is a Scots word meaning a ditch or slow-running stream or channel of water.

The Pow of Inchaffray provides drainage to approximately 2,047 acres of surrounding land near Crieff, in Perth and Kinross. The pow and its tributaries have a total length of 13.7 miles. The land that it drains is defined as “benefited land” in the bill, and those who own that land or property are called “heritors”, who must pay the commission a share of its annual budget. The bill seeks to modernise the arrangements for managing the pow to reflect changing circumstances, including the building of many new houses on benefited land.

The focus of the committee’s scrutiny remained consistent throughout: is the bill proportionate, reasonable and fair to the commission and to heritors, and does it make the commission transparent, accessible and accountable? From the start, it was clear that there were concerns about some of those issues, and about who actually benefits from the drainage that the pow provides. There was obviously a great deal of interest from local people about who should pay and how much they should pay. It was clear to us that there was a division between some agricultural and residential heritors. We had a great deal to wrestle with to try to resolve those issues.

The previous time that the bill was debated in the chamber—at preliminary stage, more than a year ago—we knew that there were three objections to it. We knew that there were some complex issues to be grappled with, but the committee was confident in saying that the bill was generally to be supported as an improvement on the Pow of Inchaffray Drainage Act 1846.

The consideration stage was lengthier and more complicated than we expected, because, thanks to the endeavours of an interested member of the public, it came to light that the land plans, which are fundamental to the bill, were not accurate. Acknowledging that to be case, the promoters commissioned surveyors to draw up new plans, using more robust methodology.

The new plans had some significant differences from those that were submitted originally. The acreage of the benefited land increased by almost 100 acres, all heritors’ estimated annual assessments changed, several new residential and agricultural heritors were identified and one previously identified heritor was removed from the schedule of assessments.

Once the land plans were finally settled, we considered the three objections to the bill. All objectors were invited to attend a quasi-judicial hearing, and one objector took up that opportunity. During the meeting, the objector and the promoters made their respective cases, and they cross-examined each other. The committee rejected two of the objections in full, because we were not convinced of the arguments that were put forward on why the objectors should not be heritors. We upheld part of the third objection, which related to the lack of any rights for heritors to appeal the level of the annual budget.

We then moved to the amending part of the process. The promoters responded to issues that were raised throughout the scrutiny process and proposed amendments to address them. That resulted in 15 amendments being lodged, all by me, as convener, on behalf of the promoters.

I will briefly comment on the most substantive amendments. One concern that was raised with us was that there was to be only one commissioner for the Balgowan section, where many new houses have been built in recent years, and where more than 70 per cent of all heritors live. The promoter responded by proposing an amendment to increase the number of Balgowan commissioners to three. The committee agreed that that was a much fairer position.

Another group of amendments sought to improve accountability by ensuring that commissioners could not continue in their role if they cease to be heritors and, crucially, if a majority of heritors from a particular section agree that a commissioner for that section should be dismissed.

In response to part of an objection that was upheld, and to concerns that were expressed by many throughout the process, there were amendments that introduced new appeals processes. Those important amendments improved accountability and the balance of power between the commission and the heritors. The bill now has two possible routes for heritors to appeal the amount of the annual budget: a single heritor can appeal if the annual budget exceeds a threshold, which is set initially at £60,000; and ten or more heritors can appeal the annual budget, whatever the level at which it is set. In both cases, appeals will be considered by an independent body.

There were amendments that improved transparency and accessibility by requiring the commission to publish the land plans and the register of heritors electronically, making them freely accessible to anyone who wishes to see them. The pow may date back centuries, but it is important that it operates in a way that is fit for the 21st century.

There was also an amendment that gave effect to the new land plans. That amendment led to a parliamentary first: using new procedures introduced in 2016, we became the first private bill committee to determine that an amendment adversely affected private interests. As a result, the consideration stage was put on hold to allow objections to be made to the amendment.

We received two objections to the amendment and heard from the objectors and the promoters, again in a quasi-judicial setting. We partially upheld one objection and rejected the other before going on to agree all 15 amendments.

The bill before us today, as amended at consideration stage, is improved in terms of transparency, accessibility and accountability. It is fairer and it more appropriately balances the rights and needs of the commission and heritors, while ensuring that the valuable work undertaken by the commission can continue effectively.

I conclude by returning to Philip Sim’s article for the BBC. He observed that although the pow may not attract wide interest, it involves the complex administration of a communal resource, and that

“This is precisely what elected representatives are for. It’s textbook stuff.”

I move,

That the Parliament agrees that the Pow of Inchaffray Drainage Commission (Scotland) Bill be passed.

16:42

Mary Fee (West Scotland) (Lab)

I begin by thanking the convener, Tom Arthur, and add my thanks to his to all the people who have contributed so valuably to our work over the past 18 months: those who have appeared before us, sent us their views—including drawings, maps and plans—and everyone who was involved in the interesting and informative visit that we made to the pow last September.

I also thank the clerks for their diligence and support throughout the process, and I welcome the promoters of the bill to the gallery.

When I look back over the past 18 months, I see that it became clear to us very early in the process that the bill is important to many people. It is important to the commissioners who give up their time, without recompense, to manage and maintain the pow for the benefit of surrounding land and property owners, because no other body wants the responsibility. It matters to the heritors—agricultural, residential and commercial—who live and work on the land that benefits from the pow, and who are required to pay annual contributions to the commission.

Furthermore, we discovered that beyond those who are directly impacted, the bill also seemed to strike a chord with people whose interest is piqued by community issues that can fall between the cracks, or who are familiar with either the local area or the issues that the bill highlighted.

As the convener said, we had many issues to grapple with and to try to resolve to ensure that the bill that is before Parliament now was fit for approval at the final stage. It was a fascinating and challenging experience that we all took very seriously, and to which we gave our full commitment. We learned more along the way than we might ever have expected to know about ditches and drainage.

As the convener said, much of our work involved listening, on one hand, to the views of the promoters, and on the other, to the views of the objectors and people who sent in critical written comments, as well as trying to facilitate and encourage exchanges of views and compromises that addressed concerns on both sides.

It is evident that there are different views among those who live on the benefited land—in particular, there are differences between the views of agricultural heritors and those of residential heritors. One argument was that the bill benefits agricultural heritors more than it benefits residential heritors. Another argument was that it benefits some residential heritors more than it benefits others. Some heritors also told us that the bill does not, in fact, benefit them at all. Although the process provides for all sides to be heard, it is, of course, always possible—and perhaps even inevitable—that some of the people involved will not agree with or be happy about the outcome. It is difficult to please all of the people all of the time.

However, I believe that the bill that is before Parliament today is a testament to the parliamentary process. Although perhaps not everyone with an interest is happy with the bill, it is a significant improvement on the bill as introduced. It is also preferable to there being no bill at all, in which case the 1846 act would continue to be in force and be enforceable, and the majority of heritors would not have the rights that are being extended by the bill. There would be no representation on the commission for new home owners. There would be no right to dismiss commissioners and no requirements for land plans and lists of heritors to be published. There would be no clarification of what constitutes benefited land, and there would be no right to appeal the annual budget to an independent expert.

I also take this opportunity to comment on the promoter—the Pow of Inchaffray commissioners. I am sure that this has not been the easiest process for them. It has been time consuming, costly and, at times, very challenging. The committee has, at times, been critical of the commission, and stressed the need for it to engage more effectively with all heritors, and to take a little more care in some aspects of its affairs. However, I commend the efforts that the commissioners have made to listen to, to understand and to take on board concerns, and to propose and support reasonable solutions.

As the process continued, the commission showed a growing awareness of the perspective of heritors and others who raised concerns. The commission needs, and will need in the future, dedicated commissioners who are generous with their time and efforts. Should Parliament pass the bill today, I truly hope that the commission and heritors—we should not forget that the commissioners are heritors, too—can put past disagreements behind them and move forward as positively and collaboratively as possible.

I hope that the new powers that are afforded by the bill will make a real difference to the people who are directly affected, and that Balgowan residents will take up the three commissioner posts that will be available. I hope that the new-look commission works well together, for the benefit of all heritors, where possible, and that the commission operates more openly than it has perhaps done in the past.

Finally, I hope that this piece of legislation will stand the test of time and allow the pow to flow effectively for generations to come. I support the motion in the convener's name.

16:48

Andy Wightman (Lothian) (Green)

I am delighted to speak in this final stage debate on the Pow of Inchaffray Drainage Commission (Scotland) Bill. First of all, I thank Tom Arthur, Mary Fee, Alison Harris and the committee clerks for their diligent work. As someone who has a long-standing interest in land governance, I have followed the bill closely. Following Tom Arthur’s comments, I also pay special thanks to Philip Sim of the BBC for his work in publicising the subject effectively, and for illuminating work that Parliament undertakes that perhaps does not receive the attention that it should receive.

If it is passed this evening, the bill will be the 17th private bill to have been enacted by the Scottish Parliament. About half the 16 bills to date have dealt with major infrastructure projects—such projects can now be dealt with in other ways following the Transport and Works (Scotland) Act 2007. Two of the previous private bills dealt with land issues: the National Galleries of Scotland Bill, which authorised use of common good land, and the City of Edinburgh Council (Portobello Park) Bill, which also dealt with common good land. Those bills are reminders that the law on common good is archaic, with its origins going almost as far back as the Pow of Inchaffray, in the Common Good Act 1491. Private bills are unavoidable where the intention is to review, update or amend older private acts.

According to work that was undertaken by the Scottish Law Commission and the Law Commission in England and Wales, there were, as of 1974, 26,000 local acts and 11,000 private acts still on the statute books across Great Britain. Local and private acts passed in the same year as the Pow of lnchaffray Drainage Act 1846 included an act for “Burdening or Selling the Estate of Cumbernauld (Dumbarton) for payment of debt” and the Airdrie and Bathgate Junction Railway Act 1846.

Historically, the most voluminous enactments were, of course, acts for works to build Britain’s railways, canals and other infrastructure. Since the 2007 act, the vast majority of infrastructure in Scotland no longer requires private acts, but where drainage schemes such as the pow, with its ancient origins and governance, are still extant, there is obviously still a need for such legislation.

Throughout the middle ages, the abbey of Inchaffray was known as Insula Missarum, or the Isle of Masses. It was one of a number of islands rising above the flooded marshland. As early as 1218, the monks had reclaimed parts of the marsh and, following the battle of Bannockburn, when the abbot reportedly led mass for the Scottish army, further work was undertaken as a mark of appreciation and thanks by Robert Bruce.

At one level, this is a fascinating story of how private enterprise has, over an area of 2,000 acres, secured drainage of valuable land under a governance scheme that makes it clear where the benefits and liabilities fall. That function is being updated through the bill. As Mary Fee correctly pointed out, such bills are balancing acts that will not always be agreeable to all parties. However, that illustrates Parliament’s importance in balancing competing interests that always arise with bills, whether private or public.

I once again thank the committee for its work. I hope that the Pow of lnchaffray will be well governed in the future, and that there will be no need for the promoters to come to Parliament again for at least another 150 years.

The Scottish Greens will support the bill at decision time.

16:52

Alison Harris (Central Scotland) (Con)

I thank the convener, Tom Arthur, and Mary Fee for their contributions and, like them, I thank the many people who have assisted with the committee’s deliberations. This has very much felt like a community endeavour, with the committee learning about the pow and those whom it affects, listening to the varied views of commissioners, heritors and interested other parties, and proposing possible solutions to areas of disagreement.

From the start of our work, we were keenly aware that the pow and the commission are historic and unique aspects of Scottish life, but not many of us would have been aware of them before the bill was introduced. I was certainly one of those people—I knew nothing about the Pow of Inchaffray until I joined the committee.

The pow dates back many centuries and the commission has been subject to legislation since an act of the Parliament of Scotland in 1696. There is even a document from 1641 entitled “Ratification of the mutual bond amongst the heritors adjacent to the Pow of Inchaffray”, which relates to the management and obligations involved in the upkeep of the pow. That document can be viewed via the University of St Andrews online archive of records of the Parliaments of Scotland to 1707. It seems that Parliaments have been considering and debating the pow for well over 300 years.

The fact that the most recent legislation was passed in 1846 highlights that history, but it also probably explains why the bill was deemed necessary by the promoters. The pow and the commissioners are being governed by legislation that is now 172 years old—and, as we know, much has changed in that time. The maps that were drawn up in the 19th century to confirm the land that benefited from the pow show fields, woodlands and farm holdings, but not many houses. Centuries of drainage via the pow have been so successful and have improved some of that land to such an extent that, in more recent times, many residential properties have been built on the benefited land. The promoters felt that, as the 1846 act predated the building of the majority of those properties, it was therefore no longer fit for purpose. They wanted powers to revalue the land and to spread the costs of maintaining the pow more fairly.

Because of outdated plans and methodology, some people who benefit from the pow are not contributing to its upkeep. They benefit from the pow because both foul and surface water from their properties drain into it, directly and indirectly. The bill allows the commission to ensure that people who are in that position, some of whom are not charged by the local authority for drainage, are appropriately charged for a proportionate contribution to the commission’s annual budget.

As well as directly uncovering the errors in the original land plans, as detailed by my committee colleagues, the process helped draw attention to other historic anomalies that might otherwise have remained hidden. For example, there is a piece of land that has always benefited from the pow but whose owners have never been charged as a result of an agreement between the then owner and the then commissioners. One of the benefits of the scrutiny process is that it allows a light to be shone on such historic agreements and allows people to consider whether such arrangements are still appropriate. In this instance, the promoters agreed that applying the methodology for identifying benefited land consistently meant that the arrangement should not continue and that the owner of the land should now be charged.

At the preliminary stage, the committee agreed that a private bill was appropriate to modernise the arrangement of the pow commission. The focus of our work at the consideration stage, as set out by Tom Arthur and Mary Fee, was to consider objections to the bill as introduced and to respond to the other concerns that were raised. We did so by facilitating discussions and suggesting possible solutions.

It was good to see the process working as it should when objectors and the promoters attended public sessions that were managed by the committee to put their views and to cross-examine each other. The committee learned a great deal from those sessions and better understood both points of views and the possible solutions that might offer an appropriate compromise. Although most objections were eventually rejected, two were upheld in part and led to an amendment to the bill to include an appeals process and to the promoters making adjustments to the categorisation of some land. Even with the objections that we rejected in full, some of the issues that were raised led to debates that helped our understanding of the dynamics between the commission and the heritors and of how best to resolve some of the concerns. I commend the objectors who attended committee sessions—I recognise that it can be daunting, as a member of the public, to attend a public committee meeting to argue a case.

I am also pleased that, as Mary Fee said, the commissioners were receptive to the concerns raised and that the bill, as amended at consideration stage, addresses many of the concerns that were raised with the committee during its scrutiny. I support the motion in Tom Arthur’s name.

13 December 2018

Final vote on the Bill

After the final discussion of the Bill, MSPs vote on whether they think it should become law.

Final vote transcript

The Presiding Officer

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Ewing, Annabelle (Cowdenbeath) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Scott, Tavish (Shetland Islands) (LD)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)

Abstentions

The Presiding Officer

The result of the division is: For 89, Against 0, Abstentions 24.

Motion, as amended, agreed to,

That the Parliament reaffirms its long-standing commitment to human rights and human dignity and to the principles of equality, democracy and the rule of law; notes with approval that 2018 is the 70th anniversary of the adoption by the UN of the Universal Declaration of Human Rights; further notes similarly that Scotland has enjoyed 20 years of the vitally-important human rights safeguards that are contained in the Human Rights Act 1998 and the Scotland Act 1998; expresses its wish that all of Scotland should work in concert to promote and vindicate human rights for all, keeping pace with progressive international standards and demonstrating global leadership; notes the publication on Human Rights Day 2018 of the report and recommendations of the First Minister’s Advisory Group on Human Rights Leadership; welcomes the report and recommendations of the Equalities and Human Rights Committee, which was published on 26 November 2018, following the human rights inquiry that it carried out and notes the balance of support within the committee for the report’s conclusions; agrees that the Scottish Government should now take action, in partnership with civil society, the Parliament and all parties, to ensure that Scotland continues to lead by example across the full spectrum of civil, political, economic, social, cultural and environmental rights, and welcomes the Scottish Government’s commitment to incorporate the UN Convention on the Rights of the Child into law and its move to meet the minimum age of criminal responsibility specified by the UN Committee on the Rights of the Child, both of which are prerequisites in establishing Scotland as an international human rights leader.

The Presiding Officer

The next question is, that motion S5M-14447, in the name of Tom Arthur, on the Pow of Inchaffray Drainage Commission (Scotland) Bill, be agreed to. Because this is a bill, members need to cast their votes now.

For

13 December 2018

Pow of Inchaffray Drainage Commission (Scotland) Bill as passed

This Bill was passed on 13 December 2018 and became an Act on 17 January 2019.

Find the Pow of Inchaffray Drainage Commission (Scotland) Act on legislation.gov.uk

Pow of Inchaffray Drainage Commission (Scotland) Bill

Overview

Why the Bill was created

Becomes an Act

Introduced

Pow of Inchaffray Drainage Commission (Scotland) Bill as introduced

Related information from the Promoter on the Bill

Scottish Parliament research on the Bill

Preliminary Stage - General principles

Have your say

Committees involved in this Bill

Who examined the Bill

Who spoke to the committee about the Bill

First meeting transcript

The Convener

Alastair McKie (Anderson Strathern)

The Convener

Alastair McKie

The Convener

Alison Harris (Central Scotland) (Con)

The Convener

Alastair McKie

The Convener

Alastair McKie

The Convener

Alastair McKie

Jo Guest (Pow of Inchaffray Commission)

The Convener

Jo Guest

The Convener

Jo Guest

Mary Fee (West Scotland) (Lab)

Jo Guest

Mary Fee

Jo Guest

Mary Fee

Jo Guest

Mary Fee

Hugh Grierson (Pow of Inchaffray Commission)

Mary Fee

Jo Guest

Mary Fee

Alison Harris

Alastair McKie

The Convener

Alastair McKie

The Convener

Alastair McKie

The Convener

Alastair McKie

Jo Guest

Alastair McKie

The Convener

Alastair McKie

The Convener

Alastair McKie

The Convener

Alastair McKie

Alison Harris

Jo Guest

Alison Harris

Alastair McKie

Shirley Davidson (McCash & Hunter)

Alison Harris

Shirley Davidson

Alison Harris

Shirley Davidson

Alison Harris

Shirley Davidson

Alison Harris

Alastair McKie

Alison Harris

Alastair McKie

The Convener

Alastair McKie

Alison Harris

Shirley Davidson

Mary Fee

Alastair McKie

Jo Guest