Official Report 569KB pdf
I should make it clear that I have decided to go against the running order in the agenda and will now move to item 5, mainly to accommodate the Cabinet Secretary for Rural Affairs and the Environment, who has found it difficult to get back from Brussels where he has been for the past few days. He is here—I have seen him in the building—but I suggest that in the meantime we carry on with evidence taking from Government officials on the Reservoirs (Scotland) Bill.
The aim of the bill is to protect the public from flooding from reservoirs by modernising Scotland’s reservoir safety regime. It makes substantive provision to introduce a risk-based approach and to require managers of reservoirs greater than 10,000m3 to register those reservoirs; for the Scottish Environment Protection Agency to classify reservoirs according to their risk; and for reservoir managers to comply with the requirements of each risk category, which can include the appointment of engineers to supervise and inspect the reservoirs.
Why has it been decided that we need to do something about reservoirs of less than 25,000m3?
A number of incidents over the past few years have shown that reservoirs of less than 25,000m3 can pose a risk to the public. In 2008, overtopping at the Maich reservoir in Renfrewshire made the structure unsound, which could have resulted in quite a lot of damage to property and loss of life. In 2007, the potential for a serious incident at the Ulley reservoir in Yorkshire led to a large number of properties downstream being evacuated and the M1 being closed.
How many reservoirs are currently regulated under the 1975 act?
Around 650.
Have there been any incidents on any of those in the past five or 10 years?
There have been no serious incidents related to any reservoirs that are currently regulated. There are occasionally problems with reservoirs, but, because they are regulated, those problems are spotted and the reservoir manager has to resolve them.
What are the shortcomings of the current system, particularly with regard to risk classification?
At the moment, the risk classification does not apply to how the reservoirs are regulated. The current legislation simply requires all reservoirs of more than 25,000m3 to comply with the same regulatory and supervisory regime. No matter what risk the reservoir poses, it has to have the same level of inspection and supervision as every other reservoir.
Part 7 of the Flood Risk Management (Scotland) Act 2009 transferred enforcement responsibility from local authorities to SEPA, required the production of flood plans and extended enforcement authority powers. I understand that part 7 has not yet commenced. Will it ever be commenced? Will the bill, if it is passed, supersede it?
If the bill is passed, it will supersede part 7 of the 2009 act. The provisions in the 2009 act have been incorporated into the bill.
My question is more to do with sludge than with water. I have had issues with sludge being discharged from reservoirs and causing significant environmental damage. How will that be affected by the bill? In my case, the sludge completely wiped out the fish stocks in two rivers.
Sludge reservoirs that hold back more than 10,000m3 will be covered by the legislation. Is that right?
Yes.
You said that there have been no serious incidents with the regulated reservoirs. There was an incident with an overtopped reservoir in Renfrewshire, which I presume means that it ended up with more water than expected.
It does mean that, partly, but it also means that there was a problem with the dam—it was failing.
So there was a problem with the dam. Okay. I wanted to work out how regulation would have made a difference, but presumably if the dam was failing that answers my question.
Yes. The reservoir was not coping with the amount of water that had gone into it.
But it should have been able to cope with that amount of water.
Yes.
In trying to make the system more proportionate, what is the reason for moving to 10,000m3 from the 25,000m3 limit? Is there a scientific reason for that?
It is based on advice from the Institution of Civil Engineers, which regulates the panel of reservoir engineers who are responsible for supervising and inspecting reservoirs throughout the United Kingdom. Its advice was that 10,000m3 was the limit at which a reservoir was likely to pose a risk to life or property if there was a breach.
And if it was close to property and population.
Yes.
Okay. I presume that that will bring into the regime a significant additional number of reservoirs.
It will bring in a number of additional reservoirs. We are carrying out an exercise to identify how many additional reservoirs that will be. At the moment, we do not know how many additional reservoirs of more than 10,000m3 there are in Scotland, which is one of the reasons for producing the bill.
What is the best estimate?
The current estimate is between 150 and 1,000. We are narrowing it down at the moment through a desk-based exercise that is looking at maps to identify bodies of water that may be greater than 10,000m3. We will then cross-refer those against SEPA’s controlled activities regulations database, as every impounding reservoir should have a CAR licence. That should give us a much better idea of the actual number.
Does SEPA currently have data on every reservoir or only on those of more than 25,000m3?
SEPA will have data on every reservoir that has an impoundment licence—a CAR licence.
What determines that? What requires a reservoir to have such a licence?
Any sort of impoundment or dam that has an impact on the water environment requires a CAR licence.
So, theoretically, every reservoir in the 10,000m3 category should be in that database.
Yes.
But we will find out.
Yes.
This may be a daft question, but how big is a 10,000m3 reservoir? I have no feel for that. It is a ridiculous question, as it depends on how deep the reservoir is. I assume that we are talking about very large bodies of water.
We are. Such a reservoir is the size of a number of Olympic swimming pools, but I cannot remember exactly how many.
It would be helpful if you provided that information for us.
I can do that.
That might give us a feel for it.
But then you would just ask what size an Olympic swimming pool is.
No, I know what size an Olympic swimming pool is—I have seen one. Thank you for that helpful suggestion.
Generally, I think so, yes.
It has been reported that a lot of the original plans for the reservoirs, many of which are more than 100 years old, have been lost or no longer exist. What process will be followed to determine whether a reservoir falls into the new regulated category?
There is provision in the bill for regulations to be made on that. We will take advice from the Institution of Civil Engineers and from panel engineers on the best way of determining that.
Who will ultimately bear the cost of that? If the question arises whether a reservoir is in that category, who will bear the cost of determining that? Will it be the owner or the public authority?
Initially, we will do our best to identify all those reservoirs in Scotland. SEPA will probably then be required to visit some of the ones that we are not sure about, so the cost will fall on SEPA. If an owner disagrees with SEPA’s identification of their reservoir as being greater than 10,000m3, it will be up to them to prove that it is not. We will set out the criteria by which the identification will be made and the owner will have to show that the reservoir specifically does not fall within the criteria. The idea is to make the criteria as clear as possible.
Who, ultimately, will make the determination?
SEPA will decide, but there will be an appeals process.
To whom will appeals be made?
Initially to SEPA but, ultimately, to the Scottish ministers.
Okay. You have talked about wanting the system to become more proportionate. On the face of it, moving the threshold from 25,000m3 down to 10,000m3 will capture a lot more reservoirs. Has any consideration been given to the idea that low-risk reservoirs in that category might in some way be exempted from regulation because they are low risk?
If they are low risk, the impact of the bill will be very small. The owner will not have to appoint a supervising engineer or carry out inspections; all they will have to do is have emergency information on a board, in case there is a problem with the reservoir, so that people have a number to call if they think that there is a difficulty. The reservoir will also have to be registered, so that we know where it is, in case its status changes in the future.
If somebody wants their reservoir to be classified as low risk, and therefore for a less onerous regime to apply to them, what will be the process for their making that case? Will they make the case to SEPA?
They will make the case to SEPA in the first instance, and ultimately there will be an appeal process.
There is an issue about the natural level and the surrounding land and how that might apply to flood storage on agricultural land. Are you familiar with that issue? Are there difficulties with the definitions of the terms “natural level” and “surrounding land”?
There is a provision in the bill to allow those terms to be defined with more precision subsequently. However, I am not aware of any particular difficulty that has arisen with those terms.
Do you intend to clarify the terms, or is that provision in the bill simply as a fallback in case it is required?
It is a fallback in case further specification is needed.
How would that be done? Would it be by order or in guidance?
If you bear with me, I will check that.
Perhaps I can move on and you can come back to that.
No. The idea of having a nominated lead manager of a reservoir is to reduce bureaucracy, so that all the individual managers do not have to carry out the same work, which would be repetition. However, each individual manager will be responsible for their reservoir. The provision on a lead manager is just for the administrative purposes of informing SEPA and keeping it up to date.
I cannot imagine that there will be many volunteers for that.
You would be surprised, actually.
Yes, I would.
It depends on who is in that group. If a major organisation is involved, the chances are that it will be the obvious choice. For example, if Scottish Water was in a group with a number of small reservoir managers, I imagine that it would be the obvious choice.
The issue arose at the reservoirs stakeholder group meeting in early July. The group consists of bodies such as local authorities with current enforcement responsibilities, SEPA and representatives of owners, ranging from small-scale private individuals to large-scale organisations such as Scottish and Southern Energy. There was general agreement that the provision is sensible and will generally work well. There will always be certain cases that stand out as different, but setting out the provision in legislation will make it easier for people to engage with one another to identify who should be the lead.
How will any difficulties be resolved? If, for particular reasons, nobody steps forward to take responsibility, how will that be resolved?
If the managers cannot reach agreement, they will all still have individual responsibility for their reservoir.
So that will simply mean that the bureaucracy will be multiplied by the number of people involved.
Yes. It is in their interests to work together.
Is it clear that failure to appoint a nominated person will mean that everybody remains liable?
Yes.
Fine—thank you.
I take you back to the issue of flood storage on agricultural land, for which, as I am sure you remember, provision was made in the Flood Risk Management (Scotland) Act 2009. How will the bill affect those temporary flood storage areas, many of which involve bodies of water a great deal bigger than 10,000m3?
Temporary flood attenuation reservoirs are covered by the bill if they are bigger than 10,000m3.
What liabilities will attach to landowners in that regard?
If they own the reservoirs, they will have to undertake all the requirements of the bill. However, because most of the time a flood attenuation reservoir is empty, it is unlikely to be a high-risk reservoir.
I suppose that that is self-evident. However, if a huge amount of bureaucracy is attached to such reservoirs when they contain water, that will be an additional burden for landowners that was not foreseen in the 2009 act.
I imagine that it is unlikely that flood attenuation reservoirs will fall into a high-risk category.
Or a medium-risk category.
Yes. I cannot guarantee that until we consider the potential impact of a breach of water from those reservoirs, but they hold water only for short periods and only to reduce the impact of a flood downstream. If a flood attenuation reservoir were breached, the impact would be the same as the flood, so I cannot imagine that it would be considered to be a high-risk reservoir.
In response to a question from Peter Peacock, you made a point about duplication and suggested that people should get together and put forward someone to speak on their behalf. However, there are both single and multiple managers. Will the guidance documents on the legislation have to be sent out to and filled in by both single managers and organisations such as Scottish Water and local authorities? That would seem to be overprovision of information.
Everyone who manages a reservoir will be able to access guidance on the legislation, but not all of it will necessarily be sent out. However, everyone who manages a reservoir will be responsible for providing the documentation to enable it to be registered. It is entirely up to them to decide whether to provide that directly to SEPA or via a lead reservoir manager, if they are in a group.
Given that the bill provides for quite high penalties—we will come on to that issue—is it not incumbent on us as legislators to ensure that the guidance documents are given to people? On whom will the onus lie if someone with only a small interest in a reservoir that floods is fined under the bill and they say that they did not know the procedures because they were not sent guidance?
We can look at whether guidance should be sent to every reservoir manager. We will certainly ensure that every reservoir manager is informed that certain responsibilities go with that role. Every reservoir manager will be written to and informed that, because they own a reservoir that is over a certain size, they are required to register with SEPA by a certain date. I do not know whether they will want to read through a lot of guidance on what that means, but guidance on various aspects of the legislation will be available. Normal practice is to make it available through the internet, but it can be distributed in other ways if that is thought to be necessary.
Ms Tracey, you said that you do not know how many reservoirs there are in the 10,000m3 to 25,000m3 category—there could be anything from 150 to 1,000 of them. Mr Ritchie, you mentioned that you have had a meeting with stakeholders. Correct me if I am wrong but, some time in the past, Scottish Water or some other organisation gave away smaller reservoirs, and it virtually had to plead with some people to take reservoirs that were on or near their land. Those people are probably completely unaware of the situation. Potentially, hundreds of people will come under the legislation and at some point in the future—perhaps after a breach—they will find out that they were responsible and are liable, despite not knowing about it beforehand. Is there not a big job to be done in that regard?
You are right that there is a big job to be done. Taking the bill through will be an important tool for us to identify who those reservoir owners are, under the initial registration process. That will allow us to target information to those people and to identify what their responsibilities are. Most responsibilities for taking action will involve best practice for what people should be doing with regard to their reservoirs anyway.
There is a provision in the bill for the Scottish ministers to direct SEPA to publish guidance on the management of controlled reservoirs by reservoir managers. There is also provision for situations where there is a transfer of reservoir manager. Where a person ceases to be a reservoir manager, they must notify SEPA. Under the bill, SEPA will have a duty to take such steps as it considers appropriate to inform the new reservoir manager of their duties. That provision covers only part of the issue—it does not address the informing of existing reservoir managers when the bill comes into force, but it covers the issuing of guidance and dealing with the transfer of reservoir managers.
I have a point arising from the convener’s question about people becoming liable. Under the present law, if there was overtopping because of incorrect maintenance and damage was caused in, for example, Renfrewshire, would the owner of the reservoir be liable for that damage?
Regardless of the provisions of the bill?
In the present circumstances—before the bill comes into force. Let us say that a reservoir was not properly maintained and there was overtopping and damage to houses in the flood path. Under the present law, would the owner be liable for that damage?
My understanding is that they would be liable under the law of delict. If a body of water is held back, a duty of care is owed, I imagine, to those in its path, which means ensuring that the water is not released in such a way as to cause a danger to them. If damage were caused, that would be a breach of that duty of care.
So, although the bill places new duties on owners of reservoirs of more than 10,000m3, it does not impose a new liability, because the liability already exists.
That is correct. The intention of the bill is to ensure that such reservoirs are inspected so that, ideally, no water is released and no damage is caused. If there were a release of water, the ordinary delictual duties under the common law would apply.
Thanks.
Can you give us some insight into chapters 2 and 3 please?
Chapter 2 requires SEPA to set up and maintain a comprehensive register of all controlled reservoirs in Scotland. The register is to include information such as location, risk designation, details of any appointed engineers, any reports and certificates, and an inundation map. In addition, every reservoir manager will be required to register their reservoir with SEPA and must notify SEPA of ownership or management changing hands. SEPA is then required to inform the new manager or owner of their duties under the bill. The chapter also requires local authorities to provide such information and assistance as is necessary to enable SEPA to take over the enforcement role. It also makes it an offence for reservoir managers not to register their reservoir.
Is that chapters 2 and 3?
I am sorry; that was just chapter 2.
How easy is it to calculate the probability of failure of a reservoir? Under what circumstances might it occur? I appreciate that there could be a million and one circumstances, but could you give a brief outline, please?
The probability of failure of a reservoir is very low in almost all cases. Reservoirs do not fail often, and this legislation is designed to avoid that even further.
That is the more important element of risk.
Yes.
Could you tell me about planning applications on nearby developments? If a reservoir has hitherto been low or medium risk, and a planning application is granted that turns it into a high-risk reservoir, because of the increased level of building in the flood plain below it, who is responsible for that? Does it automatically become a burden on the owner of the reservoir?
If a development is given the go-ahead downstream of a reservoir that could have an impact on that reservoir’s category, the reservoir owner will have been able to object to the planning application during the planning process. Their reasons for objecting to the planning application would be the potential impact on the reservoir. We are in discussion with planning colleagues about whether that would require a change to the development regulations—I cannot remember the name.
They are general permitted development orders.
That is it. We do not think that a change would be required, because reservoir undertakers would have the same opportunity to object and to give good reasons for their objection. Because of SEPA’s new duties under the bill, we imagine that SEPA—which is a statutory consultee for planning purposes—will, when advising a planning authority on any proposed development, take into account the impact on a reservoir of a downstream development.
The risk would be covered under planning legislation but, notwithstanding what you have said, if the main evaluation of risk is the consequence of a failure and if a low-risk reservoir were turned into a medium or high-risk reservoir, that would create definite burdens in the meantime, simply because a planning application might have been granted. If that burden is given to someone, how does that fit with the European convention on human rights and all such matters?
If a proposed development would lead to costly safety improvements because it would change a reservoir’s risk status, the planning authority would be expected to take that into account, or certainly to consider the reservoir operator’s views, and to be informed of any cost implications by SEPA.
That is helpful. To what extent is the proposed regime integrated with the Water Environment and Water Services (Scotland) Act 2003, controlled activities regulation and flood risk management? Do synergies exist?
Synergies certainly exist. I have said that the bill has been drafted to take into account the flood risk management planning process. That is why the review of the risk status will take place every six years, to take into account any change or information that has arisen via the flood risk management planning process.
The intention is to integrate the regimes as fully as possible.
Yes.
We will move on to chapters 4 and 5 of part 1.
Chapter 4 retains a successful and well understood aspect of the 1975 act—the involvement of specialist reservoir engineers. The chapter requires the Scottish ministers to set up panels of engineers for Scotland after consultation with the Institution of Civil Engineers. Suitably qualified engineers will be appointed to the panels by the Scottish ministers in consultation with the Institution of Civil Engineers. Under chapters 5 and 6, those engineers will be appointed by reservoir managers to carry out all necessary supervision and inspection of the construction and operation of reservoirs.
I presume that with 150 to 1,000 new reservoirs, we will need quite a few sufficiently qualified engineers. How many engineers are we liable to need?
There is already a panel of reservoir engineers. We would be using the reservoir engineers who are already on that panel.
So, is there is no requirement for any new engineers, even given the expansion.
There should not be a requirement for new engineers. There is always a difficulty with panel engineers in that there is a very small pool of experience and we are conscious that we do not want to limit it any further. We have tried to align the bill as closely as possible with the legislation in England and Wales and to continue the operation of the panels through the ICE, so that the same pool of reservoir engineers who operate throughout the UK at the moment can continue to operate throughout the UK.
You said that you had tried to keep the bill as consistent as possible with the English legislation. However, I noticed that British Waterways Scotland said that some terms that are used in the bill, including “discontinuance” and “abandonment”, differ from terms that are used elsewhere in UK legislation.
They do, but we changed them because we felt that the terms as defined in the bill are clearer than those in the previous legislation.
Do you mean that the terms were not clear in England and Wales?
The terms that are used in England and Wales are the terms that were used under the existing 1975 act. They have not changed. England and Wales are still working with the 1975 act; they have made some amendments to it, but they have not brought in an entirely new bill. If they produce consolidating legislation at some point over the next few years, which I understand is the intention, the terms might well be changed.
That is okay, but if you require engineers from England—which you kind of implied you might end up doing—will that difference in language create any difficulties for them?
It should not. The engineers operate throughout the UK: there are panel engineers in Scotland who operate in England and Wales and vice versa and we do not want to restrict that practice. We are confident that, as it stands, the legislation is sufficiently close that it should not cause any difficulties.
The engineers have not expressed any reservations when you have spoken to them.
No.
How does the panel influence the construction, alteration and on-going supervision of controlled reservoirs? Do those engineers turn up and have a look at the reservoir?
The person who is appointed as the constructing engineer is responsible for ensuring that the reservoir is constructed properly.
Does the panel oversee that engineer, or is the panel engineer that engineer?
The panel engineer is that engineer.
Their role is hands on.
Yes. The panel is simply a panel of all the engineers in the UK who are suitably qualified to be a construction engineer, a supervising engineer or an inspecting engineer for reservoir safety purposes.
Okay. Can you tell us about chapter 6, please?
Chapter 6 sets out the differing supervision and inspection requirements for reservoirs that are designated in the medium-risk and high-risk categories. Low-risk reservoirs have no regular supervision requirements. The chapter requires managers of medium-risk and high-risk reservoirs to appoint a supervising engineer at all times to monitor regularly the condition and performance of the reservoir. It sets out the duties of supervising engineers in relation to the reservoir and requires them to produce an annual written statement for the reservoir manager, which has to be copied to SEPA.
You have just drawn our attention to the fact that the bill appears to require a single inspecting engineer to be appointed “at all times”. How do you define “at all times”? Is that a resident engineer? Are ICE and SSE correct in their interpretation of section 43, which is in the evidence that they have submitted? Does that need to be addressed?
There are a couple of issues around the way in which we have defined when an inspecting engineer must be appointed, and we are addressing those. It is an unintentional consequence of the drafting. There must be a supervising engineer appointed at all times, but not an inspecting engineer.
Is it wise to have just one person? I suppose that that is really what we are asking.
The supervising engineer will have responsibility for looking after the reservoir at all times. It will be their professional duty to ensure that the reservoir manager maintains the reservoir properly.
The expression “at all times” seems a bit vague.
I am not sure that I understand.
The resident engineer has to be—
The engineer is not “resident”. They are not on site at all times. It just means that that engineer is the person who is responsible for the reservoir, and will make a professional judgment about how often they need to look at the reservoir or visit it. They will certainly visit it if they think that there is a problem or that the reservoir manager is not carrying out appropriate maintenance. They will tell the reservoir manager whether they think that the reservoir manager is doing what needs to be done to ensure that the reservoir is maintained properly.
The aim is to ensure that there is on-going access to professional support for the reservoir owners.
Okay. Thank you.
Can you give us a breakdown of chapters 7 and 8 now, please?
Chapter 7 covers some aspects of the bill that were previously specified in part 7 of the Flood Risk Management (Scotland) Act 2009. Those include provisions for Scottish ministers to make regulations to introduce a mandatory post-incident reporting regime, whereby any information relating to any incident concerning safety must be reported to SEPA. That will help panel engineers to understand better some processes that are associated with reservoir maintenance. Where information is not willingly provided by reservoir managers, SEPA will have the power to investigate actively.
The requirements for the preparation of detailed flood plans will be set out in regulations and the Scottish ministers will have to consult on those. However, concern has been expressed by people who have responded to the consultation and to our call for evidence—this refers to the point that John Scott made earlier—that there could be a fair degree of bureaucracy and expense involved in the preparation of some of those plans. What different degrees of flood planning do you think will be required, depending on the level of risk of the reservoir?
A sliding scale of flood plans will be required. The flood plan will be minimal for a low-risk reservoir; it will probably just have contact details of who needs to be contacted in the event of a difficulty with the reservoir. Medium-risk reservoirs will require a more detailed flood plan. The idea of the flood plan is to ensure that if there is a potential risk or a potential breach to the reservoir, there are procedures to be followed regarding who needs to be contacted, who is the supervising engineer, when they need to be contacted, what process needs to be undertaken, whether there needs to be any draw-down of the reservoir and whether any work needs to be done to clear the spillway. Those are the sorts of things that will need to be put into any flood plan. It is very much an on-site flood plan, so it is very much to the benefit of reservoir managers to have plans for how to manage their reservoirs in the event of a problem.
Have you any idea of the cost that might be incurred? Obviously, that will be on a sliding scale as well.
We have a sliding scale of costs in the financial memorandum. Low-risk reservoirs are expected to have a one-off cost of about £250 per reservoir for the production of simple flood plans; medium-risk reservoirs will have annual costs of between £225 and £600; and high-risk reservoirs will have a cost of approximately £3,000 for the production of flood plans.
I must say that £250 seems to be rather expensive for just having the name and contact details of the person who must be contacted if there is a flood. It seems to imply that something a bit more bureaucratic is involved.
There may well have to be something more. That cost is just an average; it depends on what the reservoir manager deems would be necessary in the event of a potential breach.
It could put off, say, a farmer from using land as a flood plain if they felt that they would have to pay £250 or more to get their name on a piece of paper. One of the concerns is that there is a conflict between what we are trying to achieve in this bill and what was intended to be achieved in the Flood Risk Management (Scotland) Act 2009 and, indeed, through some of the biodiversity duties. There could be a temptation either not to create the flood plain or, indeed, to drain a reservoir rather than have the hassle of going through the flood plan procedure. Many reservoirs are important habitats for various creatures, so there could be a negative effect on a biodiversity duty.
The intention of the bill is to ensure the safety and the safe maintenance of reservoirs. A balance must be struck—there will be some cost for reservoir owners, but the bill is intended to be proportionate. It has been drafted in such a way as to try to ensure that any impact on reservoir managers is proportionate to the risk that the reservoir poses to the public.
Do you envisage a grant scheme that will give people financial assistance with the costs of preparing plans?
There is nothing in the bill at the moment in that regard, but it was something that we put in the consultation, so we could take it into consideration.
On the information that will be held in the flood plan, who will be able to access that? In the passing of the 2009 act, we recognised that there could be some sort of security risk sometimes in public access to information about reservoirs. How secure will the information be?
The security of reservoirs is deemed to be an issue of national security, which is a reserved matter. So, on any security issues, we will follow the advice that the Westminster Government gives to us.
Will that be the intention for whoever has access to the information in the flood plans and so on?
It could be.
Given that we are talking about bodies of water that are sitting doing nothing, what the bill proposes will represent an increased burden, so some landowners might be tempted just to drain their reservoirs, but that might be incompatible with their biodiversity obligations as regards wildlife. Could a situation be envisaged in which Scottish Natural Heritage or the Scottish Government refused to allow an owner to drain a reservoir because, for example, it was a wintering ground for greylag geese? An owner might want to drain a reservoir but not be allowed to do so without having a further biodiversity financial obligation imposed on them. Is it unreasonable to envisage such a scenario?
There is a possibility that some small private reservoir owners may want to decommission their reservoirs, but that is not just a matter of draining them. A process has to be gone through. It is likely that a controlled activities regulations licence would have to be granted for that. The potential impact on the environment of a reservoir being decommissioned would have to be taken into account; it would not simply be a case of a reservoir manager deciding to drain it.
I return to the point about the costs. The figures that we have provided are the best estimates that we could come up with on the basis of discussions with stakeholders. As part of the development of the bill, we will develop guidance on what will be required, as far as information is concerned, with a wide range of stakeholders. We will seek to draw into that process other bodies such as SNH and SEPA, which are working with us on the Flood Risk Management (Scotland) Act 2009 to ensure that wider interests are reflected and to make all the connections that are possible to issues such as sustainable flood management.
John Scott raised the possibility of someone draining a reservoir. Another possibility that occurs to me is that someone might decide to reduce the volume of their reservoir from 10,000m3 to 8,000m3 so that it would no longer be between 10,000m3 and 25,000m3 and therefore would be outwith the scope of the bill. Is that possible?
That is possible.
I presume that that would not require a controlled activities regulations licence.
Such a person would probably still need a controlled activities regulations licence because they would be carrying out work on a water body. If they brought the reservoir down to below 10,000m3, the chances are that it would fall outwith the requirements of the bill.
I presume that a reduction of 1,000m3 would not have a significant effect on biodiversity, but you cannot really answer that.
I add that if a landowner decided that they no longer wanted to have a flood attenuation reservoir because they felt that the requirements under the bill were too onerous, it would be open to them to enter into discussion with the local authority. Under the Flood Risk Management (Scotland) Act 2009, there will be a local flood risk management plan. If the local authority wanted to retain that flood attenuation reservoir, compensation arrangements could be discussed.
Will you tell us about chapters 9 and 10, please?
Chapter 9 will enable Scottish ministers to make provision, by order, for SEPA to have access to a toolkit of sanctions in the event of non-compliance by reservoir managers, which will include stop notices, enforcement undertakings, fixed financial penalties, the ability to publish details of enforcement action and, when such measures are unsuccessful in securing compliance, the ability to take forward criminal proceedings.
Chapter 9 expands SEPA’s enforcement powers, yet there were no direct questions on that in the consultation. Why not?
There was a general question about expanding the toolkit of options that are available to SEPA, but you are right to say that there was nothing specific about the sanctions. As we developed the bill, we wanted to ensure that we were acting along the lines of better regulation as set out by the Macrory report, and we felt that, in giving SEPA a toolkit of options that it could use for enforcement purposes, we were acting in line with the move towards better regulation.
What about local authorities? What powers do they have to enforce reservoir safety?
The only enforcement powers that they have are to write a letter or to follow criminal proceedings.
Could a case not be made that they should have access to a toolkit of other options as well?
If the bill is passed, local authorities will not be the enforcement authorities.
They will lose their role.
Yes. SEPA will be the enforcement authority.
Does SEPA have similar powers under existing legislation?
Yes. It does not have all the powers that we have included in the bill, but it has the power to issue fixed-penalty notices under the greenhouse gas emissions trading scheme regulations, the Environmental Protection Act 1990 and the Transfrontier Shipment of Waste Regulations 2007.
What will happen if a dispute arises? To whom will the dispute be referred if SEPA has a disagreement with a reservoir owner about what it has been doing?
If a reservoir owner decided not to comply with any of the civil sanctions, the matter would transfer to criminal—
But if the reservoir owner believes that SEPA is unjustified in what it is doing, will they have a mechanism to appeal?
Well, they would have the option not to comply. The matter would then have to go to court and a decision would be made there.
To follow up on Elaine Murray’s questions on enforcement, will you clarify under what authority in the bill SEPA will charge reservoir managers? That does not seem clear. The policy memorandum states:
The authority is set out in the bill. SEPA will have the authority only if the bill is passed.
You mentioned that there will be some costs for reservoir classification and for work that requires to be done. Do you have a general idea of what the charges will be? It was mentioned that there would be some costs, but we did not get a definitive figure.
Do you mean the charges for registration?
No, I mean the charges for classification and for work that requires to be done under the new powers that SEPA will have if the bill is passed.
The cost of the work to be done will depend entirely on what the work is. It is not a matter of SEPA charging the reservoir manager to undertake work. If a supervising or inspecting engineer identifies that a certain amount of work needs to be done to bring a reservoir up to standard, the reservoir manager will have to pay for that work to be done. The payment will be made not to SEPA but to the contractor who does the work.
It is possible for SEPA to carry out the work if the reservoir manager fails to do so and to recover the costs from the reservoir manager.
Should the bill make provision for SEPA to advise reservoir managers to take out insurance policies?
It will certainly be open to reservoir managers to take out insurance policies. It is always advisable for those who own such assets to be properly insured. However, on the advice of the Association of British Insurers, we have not gone down the road of compulsory public liability insurance.
Forgive me for butting in, but why has the Association of British Insurers said that those who own bodies of water should not have public liability insurance? I should have thought that that would be necessary.
Public liability insurance is available, but the association advised against making it compulsory, partly because it was not sure how many insurance providers would be willing or able to provide it and how such provision would be policed.
In its evidence to the committee, the ABI set out three reasons why it did not think that compulsory liability cover would be helpful. They were:
I invite you to tell us quickly about parts 2 and 3 of the bill.
Part 2 allows offences to be set out in support of regulations that were specified in the Water Environment and Water Services (Scotland) Act 2003. Such regulations exist to enforce the European Community water framework directive’s requirement for water bodies to meet a “good status” objective. However, fully enforcing the regulations is difficult without offences to back them up. Such offences were omitted from the original piece of legislation. The bill has been identified as the most appropriate vehicle to introduce the necessary measures.
I have some questions about the offences that are being created. Can you provide us with more detail on the type of offences that you propose to create?
I apologise for the fact that we can go into only limited detail, as our expert on that front has been snowed in and has been unable to join us.
It would be useful if you could provide the committee will some written evidence on the issue.
We will do that.
As there are no further questions, I thank the witnesses for attending and for their evidence. We would be grateful if you could submit your written evidence to the clerks as soon as possible. I will suspend the meeting briefly to allow for a changeover of witnesses.