Reservoirs (Scotland) Bill: Stage 1
Good morning. The first item of business is a debate on motion S3M-7769, in the name of Richard Lochhead, on the Reservoirs (Scotland) Bill.
09:15
The Reservoirs (Scotland) Bill will introduce a new regime to better protect the people of Scotland from the risk of flooding from reservoirs.
In recent years, incidents at reservoirs here and in other countries have led us to review Scotland’s legislative framework for reservoir safety. For instance, in August 2008, a near failure of the dam at the Maich fishery in Renfrewshire required the evacuation of residents downstream, the closure of public roads and the activation of emergency works to prevent an uncontrolled release of water. That near miss had the potential to cost lives and to cause extensive damage to property and infrastructure but, as the Maich was less than 25,000m3 in capacity, it was not regulated under the Reservoirs Act 1975.
The 1975 act is based solely on capacity. Under it, all reservoirs of more than 25,000m3 in capacity have the same inspection and supervision requirements. The bill will introduce a new system of regulation that is based on the level of risk that each reservoir poses. That makes sense for two reasons. First, reservoirs with no communities downstream will be subject to less regulation and will benefit from significant savings. Secondly, reservoirs that are close to businesses and communities will be more rigorously assessed to provide the highest level of protection.
We have set the minimum volume for regulation at 10,000m3 on advice from the Institution of Civil Engineers that that is the level above which an uncontrolled release of water could cause injury or death. All managers of reservoirs that have a capacity of more than 10,000m3 will have to register their reservoir with the Scottish Environment Protection Agency. Registration will be free for the first six months to encourage reservoir managers to register early. Once a reservoir has been registered, SEPA will classify it as high, medium or low risk. If reservoir managers are unhappy with the risk classification of their reservoir, they can appeal.
Managers of low-risk reservoirs will need only to register, to keep basic records, to put up an emergency information board and to produce a simple flood plan. Managers of medium-risk reservoirs will, in addition, have to appoint a qualified civil engineer to supervise the reservoir and will have to have the reservoir inspected when that is recommended by the supervising engineer.
High-risk reservoirs will have to be inspected regularly. With high and medium-risk reservoirs, the reservoir manager will have to carry out any mandatory repairs and maintenance works that are specified by the inspecting engineer to maintain the safety of the reservoir.
The role of the Institution of Civil Engineers has been a central feature of reservoir safety for more than 30 years. The knowledge of the engineers will continue to be invaluable to reservoir managers and to SEPA, which will take on the enforcement role for reservoir safety from local authorities. SEPA will hold a central register of all reservoirs in Scotland and will receive details of any maintenance and construction work that is taking place from the appointed engineers.
Under the 1975 act, local authorities are constrained by the limited enforcement mechanisms that are available to them. Professor Richard Macrory’s 2006 review on improving regulatory compliance found that, in many cases, criminal prosecution may not be the most effective sanction. The report concluded that flexible and risk-based tools were more likely to achieve the desired outcome. That is why we are creating a more flexible and dynamic system of enforcement, in line with the Scottish Government’s aim of better regulation. That will give SEPA access to a more appropriate and effective range of tools to encourage compliance, which should further guarantee the safety of the public.
During the bill’s development, we have taken steps to engage with the public, key stakeholders and other experts. The overwhelming majority of respondents to our public consultation were in favour of the implementation model that is set out in the bill. Our reservoir safety stakeholder group has provided crucial insight into reservoir safety issues and has contributed to the bill’s development.
I take the opportunity to thank the Rural Affairs and Environment Committee for its diligent scrutiny of the bill and for its support for the bill’s general principles. I also thank the many individuals and organisations who gave evidence to the committee. I would like to mention some of the key points that the committee raised in its stage 1 report and some of the amendments that the Government intends to lodge at stage 2.
The committee highlighted the potential costs that may be incurred by individuals, but the cost of maintaining a reservoir properly should be balanced against the potential cost to a reservoir manager of dealing with the consequences of the failure of a poorly maintained dam. The bill is designed to reduce the risk to the public and to reservoir managers.
We are open to considering whether provision for financial assistance should be made but, for the reasons that I have mentioned, we will do so only in the limited circumstances in which the costs of bringing a reservoir up to the required standard are clearly impossible for a small business owner to pay.
The committee also highlighted areas in which some unintended practical problems could arise as a result of the current drafting. To that end, I confirm that we are considering lodging amendments at stage 2 to resolve those issues. The proposed amendments will, for example, require SEPA to consult the ICE before publishing guidance on the risk designation process; remove the requirement for an inspecting engineer to be appointed at all times; and make it clearer that routine maintenance that does not affect the safety of a reservoir is not mandatory.
I have given a rapid account of the bill’s main features and some of the key changes that we expect to introduce at stage 2. We will work closely with local authorities, SEPA, Scottish Water and others to put in place the appropriate regulations, guidance and resourcing to take that forward.
In conclusion, the Reservoirs (Scotland) Bill represents a crucial step towards achieving our aspiration of managing effectively the risk of flooding in Scotland. Through the bill, Scotland will introduce a modern system of risk-based reservoir management that puts public safety first.
I move,
That the Parliament agrees to the general principles of the Reservoirs (Scotland) Bill.
At this stage, I advise members that I am in a generous mood and can offer all speakers an extra minute.
I call John Scott to speak on behalf of the Rural Affairs and Environment Committee.
09:22
Every so often, a committee of the Parliament has the privilege of considering a bill that captures the imagination of the Scottish people and provokes excited debate across the land but, on other occasions, a committee considers a bill such as the Reservoirs (Scotland) Bill. In case that sets too flippant an opening tone, let me add that it is undoubtedly a very important bill that one day might save lives. It is also a bill with possible drawbacks, including the challenging financial implications that it might have for some individuals. That is a serious business, to which I will return later.
I can sincerely declare that I enjoyed the stage 1 scrutiny, in part because of the illuminating testimony of our expert witnesses and in part because I am a civil engineer by training and find such matters fascinating anyway. I got the impression, though, that other committee members perhaps enjoyed themselves more than they had expected to, tapping into hitherto unexploited reserves of enthusiasm on issues such as the relative merits of concrete and puddle-clay dams, and the statistical probability of a peat slide. I expect that some members will wish to refer to such issues in more detail, and we all look forward to that.
The committee has produced a thorough report, and I thank my colleagues for their diligence. I thank Maureen Watt, who chaired proceedings in her usual efficient and good-humoured way. As she is away on parliamentary business this week, I have stepped into her shoes, as it were. I also thank the Scottish Parliament information centre and the clerks, who, as usual, have done a sterling job.
The committee took evidence from SEPA, Scottish Water, the Institution of Civil Engineers, an energy company, an angling club operator, an insurer and the Minister for the Environment and Climate Change and her officials. We received more than 20 written submissions from councils, charities, landowners and large and small businesses, for which I thank them all. I reiterate that our scrutiny of what is a long and technical bill has been thorough.
In evidence, engineers, in particular, raised concerns about various technical issues. I did not sense that any of them was hugely important, but they underline a key recommendation of the committee, which is that the Government must maintain a dialogue with the ICE during the amending stages and, if the bill is passed, in the lead-up to implementation. It is crucial that the technical provisions—the nuts and bolts of the legislation—appear to be workable to the people who rely on them. It is only fair to add that the Government has so far demonstrated a willingness to listen, which is encouraging.
It is also important for the Government to maintain a dialogue with reservoir managers. I appreciate that there is a stakeholder working group that serves as a forum for stakeholders to air their views and as a conduit for the Government to relay information. I suggest that the information-relaying role needs to be stepped up, particularly in relation to the cost implications for reservoir managers, because there are some worried people out there.
One of our witnesses was a gentleman who runs an angling business. He ended up owning a reservoir as an indirect result of water authorities selling off redundant reservoirs to the public some years ago. He raised the prospect of the bill leaving people like him unable to meet the maintenance costs that will arise under the new regime, and equally unable to afford the eye-watering one-off cost of reservoir decommissioning. Our report described that as a catch-22 situation. We might also have said that such people are damned if they do and damned if they don’t. I hope that the minister will be able to address that issue. It is to be hoped that only a tiny minority of reservoir owners will be in that position, in which case the way might be open for the Government to provide help, as the minister hinted in the committee and—if I heard him correctly—commented this morning. I would certainly welcome that.
As the minister was keen to stress, most reservoir managers might not incur significant extra costs and, in some cases, bills might go down. I certainly hope so, but the stage 1 evidence was contradictory on the point. An example is the annual subsistence fees that SEPA proposed to charge reservoir managers. It emerged that the authority to charge those fees is missing from the bill. There is also uncertainty about the level of fees. SEPA indicated the low hundreds of pounds, but the financial memorandum suggested a far greater range. There is a slight sense of policy being made on the hoof, which also concerned the committee.
I conclude by noting that Scotland has a good reservoir safety record, with no fatalities in almost a century. That is despite having some of the oldest working dams in the world—splendid feats of engineering such as Loch Thom and the Greenock Cut above the Firth of Clyde. That is a tribute to generations of Scottish engineers and, I suppose, an indication that the current legislation has not served us too badly. However, the committee has been persuaded that the bill should proceed on the basis that it will take a more flexible approach, with the level of risk matching the level of inspection. As our report says, we expect SEPA’s overall regulatory regime to be
“as light touch as possible without compromising safety”,
so that costs to managers are driven down.
I note that the minister expressed an interest in lodging stage 2 amendments. I restate the importance of on-going Government dialogue with the experts in order to improve the bill. I hope that that leads to a steady trickle of Government amendments rather than an uncontrolled dam burst but, either way, the committee looks forward to reconsidering the bill at stage 2.
09:28
Labour members, too, support the general principles of the bill, which requires all reservoirs with a capacity of more than 10,000m3—we were told that that is four Olympic swimming pools—that lie above the natural level of any part of the surrounding land to be risk assessed and categorised by SEPA according to risk. The bill maintains consistency with the United Kingdom Flood and Water Management Act 2010 and modernises the regulatory regime, which is currently fragmented. Although there have been no fatalities in Scotland due to reservoir flooding since the 1920s, there have been serious incidents, as the cabinet secretary said. Climate change and increased precipitation will also increase risk, so a more consistent approach is to be welcomed.
As others have said, the bill is technical and does not involve many policy issues. However, because of its size and technicality, a number of drafting issues were picked up by witnesses who gave evidence to the committee and they will have to be clarified by amendment at stage 2. For example, the bill appears to require all water-bearing structures that are attached to a controlled reservoir to be inspected, which could be interpreted as meaning that all the kilometres of tunnels that are attached to a reservoir are also to be inspected, which would be very onerous. It is important that those drafting issues are rectified at stage 2. It is also a matter of concern that they were picked by external consultees and not by the bill team. I seek the cabinet secretary’s assurance that all amendments will be thoroughly checked for any further inconsistencies. I realise that we are all galloping towards 22 March, but it is important to get the bill right.
The committee debated the proposal from some witnesses that the only factor that should be considered is the risk to human life. Although that should be paramount, Labour members strongly support the retention of environmental and cultural heritage as aspects that must be considered. I would be concerned if risk to the environment were excluded from consideration when assessing how the risk of a reservoir should be categorised.
The bill will have implications for some reservoir owners who are currently excluded from the 1975 act but who will be caught by the new legislation. Some reservoir owners might be uncertain about whether their reservoir exceeds the threshold volume and the bill is not clear about who will pay for the inspection that will be required to assess whether the reservoir requires to be risk assessed. We would welcome clarification on whether SEPA will provide that service and, if it will, what the financial implications are for SEPA, as they are not included in the financial memorandum
The Minister for the Environment and Climate Change also suggested that there might be some financial support for owners, and the cabinet secretary referred to that again today. There might be assistance for some reservoirs that are included in the regulation for the first time and I am interested to learn further what those provisions might be. I appreciate that such assistance should be available only in particular limited circumstances when the reservoir owner cannot afford the cost of registration or the cost of decommissioning the reservoir.
I would also like to see some consideration of SEPA’s budget. We know from the draft budget that SEPA’s budget will decrease in 2011-2012 by 11 per cent to £4.9 million. I know that SEPA is in the process of consulting on better environmental regulation with the aim of developing a proportionate risk-based approach that would reduce complexity and introduce efficiencies. I support that approach in principle and I wish SEPA every success with the consultation and further implementation of its approach. However, a budget reduction of 11 per cent when SEPA has already been given additional responsibilities in flood risk management, for example, will make things difficult.
The financial memorandum states that the costs to SEPA are difficult to estimate at the moment because we do not know how many new reservoirs will be included under the legislation or what category they might fall into. It estimates that there will be a one-off cost of between £1.7 million and £2.9 million, and staffing costs of £2.19 million for the implementation period up to 2016. Thereafter, there will be revenue costs of £0.41 million per year. SEPA will be able to charge reservoir owners to fund its administration costs, but the financial memorandum still estimates that the cost to SEPA could be around £4.12 million until 2016. That is almost as much as next year’s budget reduction, so I would welcome reassurance from the cabinet secretary that the money can be found without detracting from SEPA’s other responsibilities, which are quite onerous in some respects.
Overall, we are supportive of the bill. I suppose that we are looking forward to stage 2, although I suspect that it might be a rather technical process.
09:34
I am pleased to speak for the Scottish Conservatives in the debate. It might not be the most controversial debate, but it is important. I put on record my thanks to the members of the Rural Affairs and Environment Committee, including my friend the deputy convener, John Scott, for a thorough and useful stage 1 report, which has helped me to prepare for the debate. Thanks should also be recorded to the committee’s clerking and support team, and to all those individuals and organisations who gave written or oral evidence to the committee. SPICe’s Alasdair Reid produced a helpful briefing paper on the bill and the Law Society of Scotland also submitted a briefing for the debate.
The Scottish Conservatives share the Scottish Government’s recognition of the specific need to enhance reservoir safety and to seek a clear legal and administrative framework for the construction and management of controlled reservoirs so that the risk of uncontrolled releases of water and their consequences can be reduced.
The debate is of particular importance to my region of the Highlands and Islands. The Highland Council area has the highest number in Scotland of reservoirs holding 25,000m3 or more of water—127—while my native Argyll and Bute has the second highest number, at 76. I expect that both areas will remain near the top of the tables for the most reservoirs when the bill brings all the smaller reservoirs above 10,000m3 under the auspices of the new system. With the push towards new hydro schemes, there may also be pump storage areas that are made into new reservoirs.
I will ask the minister to comment in more detail on two specific areas. The first relates to whether the probability of an uncontrolled release of water from a reservoir or just the consequences of such a release should be considered. Alex Macdonald of the Institution of Civil Engineers raised the issue in his evidence to the committee, and I have sympathy with the view that the consequence should be the key driver.
Secondly, given the concerns that have been expressed about the impact on small businesses and not-for-profit organisations that run reservoirs from both compliance and decommissioning costs, what if any costings has the Scottish Government done on the options for taking reservoirs off small operators’ hands? I was interested in the committee’s comments on the issue in its report. At paragraph 40, it states:
“There is uncertainty over the status and likely level of annual or subsistence charges likely to arise under the Bill. The Committee recommends that this be addressed as a matter of urgency, so as to provide greater certainty to stakeholders, particularly those persons who anticipate becoming managers of medium or high-risk reservoirs under the Bill and who are confused by the financial implications of this.”
At paragraph 44, it states:
“The Committee notes the Minister for Environment and Climate Change’s recognition that the Bill might lead to difficulties for some reservoir managers, and welcomes her tentative indication that the Government might consider providing some sort of assistance in extreme cases.”
Like the committee, I seek further clarification on what sort of assistance the minister and the Scottish Government might have in mind.
09:37
I am pleased to contribute to the debate. I should probably begin by declaring an interest as I live just a few miles downstream from the Megget reservoir, which has a capacity of 61,400,000m3 and, being nearly 1,100ft deep, is deeper than any Scottish loch or British lake. I take more than a passing interest in reservoir safety as any breach of the Megget would most likely result in my home ending up at Berwick-upon-Tweed.
Joking aside, I note that the regulation of our numerous reservoirs is an important matter due to our reliance on many of them and the close proximity of settlements to some of them. Indeed, the example that the cabinet secretary gave of the Maich fishery in Renfrewshire is cited in the policy memorandum and serves as a reminder that complacency on reservoir safety is not an option. In that regard, I welcome the Government’s attempt to look more closely at the matter.
The bill has particular relevance to my region, the South of Scotland. I believe that all of Edinburgh’s water comes from the region, and there are numerous reservoirs dotted around the area, with 38 in Dumfries and Galloway and 26 in the Borders. Of course, not all reservoirs are used for drinking water and many of them are utilised for recreation. As members will know, Penwhirn near Stranraer and Alemoor near Hawick are both excellent fishing locations that are enjoyed by many.
I plan to touch on a few aspects of the bill that I feel are worth highlighting, the first of which is the relatively contentious issue of the proposed threshold volume. Members will be aware that the Reservoirs Act 1975 is largely responsible for setting the current safety requirements surrounding large raised reservoirs. It was that legislation that introduced the 25,000m3 threshold but, interestingly, the act still did not cover the Skelmorlie reservoir in Ayrshire, the failure of which in 1925 resulted in the sad loss of five people.
The bill puts an extra burden on to SEPA and, as Elaine Murray said, there will be a cost to that organisation. The cost is estimated at more than £4 million in the next five years, so I would be interested in hearing how the cabinet secretary foresees funding that cost, especially in the light of SEPA’s diminishing budget. Will we see an increase in fees from SEPA across the board, or will an extra burden be passed on to consumers through water rates?
Clearly, a reservoir need not be greater than 25,000m3 to have the ability to cause great harm to life and property. The Government has realised that and sought to address the issue in the bill, for which I am grateful. I am aware that RSPB Scotland and the Association of British Insurers have opposed the lowering of the threshold, but I think that we need to be guided by those who have direct experience in the field. That is why I am comfortable supporting a threshold that was set largely thanks to professional advice from the Institution of Civil Engineers and which has been supported by SEPA, local authorities and even the Scotch Whisky Association.
I note that the committee supports the lowering of the threshold, but I share its concerns that the Government failed during stage 1 to articulate adequately the rationale behind the use of the 10,000m3 figure. The fact is that each reservoir is unique, and increased capacity of a reservoir does not equate to greater risk. Indeed, some reservoirs in excess of 25,000m3 will pose no risk to life or infrastructure because of their remoteness, but a 10,000m3 reservoir that is being held back by an embankment dam near a village certainly does pose a risk.
The Liberal Democrats support the bill at stage 1, but I look forward to some clarifications in the minister’s summing up.
09:41
At the start, let me comment on and condemn the inconsiderate behaviour of the cabinet secretary towards the back benchers who will speak in the debate. There has been little disagreement on the bill: all parties are supportive and there are but a limited number of points on which there is any disagreement. There were of course some technical issues, but the cabinet secretary has already informed the committee of steps that will be taken to resolve several of them.
When there is little disagreement and therefore only a limited number of discussion points, is it not rather inconsiderate of the cabinet secretary to reduce further the discussion points by agreeing with the committee’s proposals? A cabinet secretary who listens to the committee can clearly make it very difficult for humble back benchers such as me to find points of discussion.
Although the bill is uncontroversial, recent events in Renfrewshire show the importance of reservoir safety: four Olympic swimming pools can do a fair bit of damage.
It is fair to say that, barring a few quibbles here and there, we all broadly agree on the bill. Therefore, let us quibble.
It was suggested by some witnesses that, in determining the risk status of a reservoir, only human life should be considered and that other factors—cultural, archaeological and ecological—should not feature in the calculations. I note that the Government has given an assurance that risk to life will be the paramount consideration, and rightly so. However, I believe that there is no need to specify that in the bill. It would be necessary to do so only should there be a possible conflict between the needs to protect archaeological, ecological or cultural sites and human life, but such a conflict clearly cannot arise. At least, it should not arise, and it is certainly easy to ensure that it does not do so.
In order for such a conflict to arise, it would have to be the case that a low level of hazard to ecological or cultural factors would result in a downgrading of risk. In effect, we would balance disparate factors in a form of arithmetic, giving so many points for each factor and subtracting points if there is little risk to any given factor. That would surely not be a logical way to determine the aspect of risk, and I am sure that it is not one that would be used by those doing so.
If a substantial number of people live in the inundation area, the risk category should be high, regardless of the lack of risk to other factors. However, if there are few or no people living within the inundation area, should the reservoir automatically be low risk, even if a major archaeological site lies in the inundation area? Let us imagine a dam built near Skara Brae. Even though no lives might be at risk, is the risk to such a major archaeological site not enough to raise the level of risk by which the dam is defined? There is a real possibility that specifically raising one factor higher than all the others might result in the other factors being downgraded. That would be necessary if there were a potential conflict between the factors, but there is not and nor should there be.
A second point of concern for me is the designation of reservoirs as posing a low, medium or high risk. Risk is determined by two factors: the probability of the dam failing and the likelihood of the loss of human life or damage to significant sites within the inundation area. Herein lies the problem. When people see the word “risk”, they are likely to think of the risk of dam failure. What will be the impact on those who live below a dam if they suddenly find that the dam is labelled as high risk? One morning, they think that they are safe; the next morning, they are told that the dam above them is a high-risk dam. Of course, a high-risk dam may have an almost zero probability of failure; indeed, our history of limited dam failures suggests that that is the case. However, inadequate or malicious reporting—far be it from me to suggest that our press ever report inadequately or maliciously, but let us imagine for a second that some might—could easily result in an unpleasant psychological shock to those living below the dam.
I therefore urge the cabinet secretary to reconsider the use of the word “risk”. If the dams were labelled as category 1, 2 or 3, any reporting of a dam’s category would have to be accompanied by a clear explanation of how a categorisation is arrived at. Furthermore, a label such as category 1, 2 or 3 would not of itself be alarming, as opposed to someone suddenly finding that they are living below a dam that is described as high risk—which might prove very alarming indeed. I appreciate that this may seem a rather minor point, but it is one with considerable potential to impact both on an individual’s sense of security and on house prices.
This is a worthy bill and the committee is agreed that it is a commonsense bill. I have chosen to concentrate on a few specific areas mainly because, to be brutally frank, there is not much to be terribly excited about. It is a sensible bill containing sensible, uncontroversial measures. I urge the cabinet secretary to try not to introduce too many of them—it does not make for exciting debate.
09:46
I am grateful—I think—for the opportunity to speak in the debate. The cabinet secretary set out clearly the reasons for the bill, including the incident in Renfrewshire that gave rise to recognition that there was a gap in the armoury of reservoir protection. John Scott carefully and clearly set out the committee’s considerations of the bill, which have been thorough. They would not have been as thorough had it not been for the contribution that John Scott made, which on balance was very helpful. There were times, such as when he was explaining the intricacies of Mohr’s circle, when I began to wonder how valuable his contribution was, but it genuinely proved to be so. As a civil engineer, he was able to pick up on issues that lay members such as I were unable to and he made a big contribution to improving the committee’s stage 1 report.
As Bill Wilson said, Governments would generally not introduce such a bill unless there were an absolute need to do so—the Scottish Government has certainly not done it for fun. In many respects, it is just a technical bill, and there is no reason why we should not support it. In so doing, however, it is our job to point out areas where further clarity may be required, such as the definitions in the bill. Bill Wilson made a rather interesting point about the risk categories that are used in the bill. That is one of the areas that the Government might have another think about.
As Jamie McGrigor said, the Highlands and Islands region that I represent has more reservoirs than any other part of Scotland—indeed, any other part of the United Kingdom, I imagine—because of our history and topography. Therefore, the implications of the bill are of particular interest for the region that I represent.
As John Scott rightly said, the industrial revolution gave rise to the creation of many of the structures that we are now having to regulate and think more about. He mentioned Greenock, which has a number of reservoirs around it that fed power to industries there. In today’s world, however, those structures, which were originally conceived and constructed for engineering purposes and to drive industry, have assumed new significance in society and are used for recreational purposes, principally fishing. They have also become havens for wildlife and for improving biodiversity. In maintaining those functions, the current reservoir managers face different challenges.
Also, as Bill Wilson and John Scott have pointed out, since the construction of many of the reservoirs we have built housing and other forms of occupation below them, potentially in inundation areas, if there were to be any catastrophic breaches of the reservoirs in the future. Given that history and the age of the structures, some of which are 150 years old or older, it is important that we review our laws to make sure that we have the required protection to ensure people’s safety into the future.
As other members have said, the bill takes a risk-based approach, whereby the higher the risk, as defined by the number of people who would be affected by a breach or any other problem with the dam, the more regulation is imposed. The lower the risk, the more light-touch the regulation will be. That seems entirely appropriate as a way of dealing with the matter.
The size of the reservoirs that are to be regulated is coming down from 25,000m3 to 10,000m3. I probed that in the committee and, on the basis of the evidence that we received, it seems to be an entirely reasonable level for regulation—nobody particularly disagreed with it. I was concerned that there might be implications for the promotion of modern small hydro schemes as part of our renewables drive, which might be caught up in unnecessary regulation that would add cost and be a disincentive to the creation of more of those schemes. However, I am glad to say that I have been reassured, through the committee’s scrutiny of the bill, that that will not be the case for the most part.
Elaine Murray raised an important point about the nature and extent of the inspection regime. Scottish and Southern Energy gave us evidence on the potential interpretation of the current provisions, which could include all pipes and inlets to a reservoir. If that were the case, that could cause significant difficulty for SSE and other energy companies. When the Minister for Environment and Climate Change gave evidence, however, she indicated that the Government will consider issuing guidance on the matter, which is what Scottish and Southern Energy is looking for. That guidance will be provided and will helpfully clarify the situation.
The thing that I found most difficult to come to terms with in the bill, if that is the right way of putting it, was the problem that was identified by one witness who inherited a reservoir and is looking after it so that it can be used for recreational purposes. That is a laudable social objective, as the reservoir provides good recreational enjoyment for many people. Suddenly, however, that person could be faced with bills that they would find difficult to contend with. The best option for them might be to decide not to continue to allow use of the reservoir and to decommission it. However, they would then find themselves in the catch-22 situation to which John Scott referred, as they would not have the cash to do that either. That is a genuine problem, and I hope that the cabinet secretary will continue to explore ways of solving it.
Presiding Officer, I am happy to stop now, but I am also happy to continue if you want me to fill more time.
I am happy for you to have another minute, Mr Peacock.
In that case, I will make another couple of points.
Another point that was raised with the committee was the significance of the planning authority in giving consent for development below existing reservoirs or for reservoirs to be constructed above existing developments. There was quite a lot of debate about the need for the right balance to be struck. I take the view that planning authorities would act responsibly and would always take into account the increased risk either in constructing properties below a high-risk reservoir or in allowing development to take place in circumstances in which there would be a risk to people. We should leave it to the good judgment of planning authorities to make the right decisions. Nevertheless, I would not be against further guidance being issued to planning authorities in the light of the bill to ensure that they correctly interpret their duties.
The bill is a sensible measure and I am happy to support its general principles.
09:54
As we know, the Reservoirs (Scotland) Bill is a technical bill that has been drawn up through need. For example, there is no central database covering reservoirs in Scotland. Currently, each of the 32 local authorities in Scotland is responsible for regulating the reservoirs in its area, which has led to a fragmented and inconsistent approach to record keeping and enforcement across the country. However, given the fact that we are in the business of making sure that registration leads to regulation, we must be careful that the bill does not add to the costs of reservoir owners and users. At the same time, we should not increase the bureaucracy that is likely to arise from classification, enforcement and giving advice.
We all recognise that the committee’s work on the bill has been carried out with a desire to ensure that people are safe, that the reservoir structures, which are quite old, are well maintained and that we can find ways in which to incorporate reservoirs as a natural part of how Scotland looks. We must recognise that, although some of their uses have changed, reservoirs are very much a part of the landscape of Scotland.
Concerns about flooding and the potential for breaches in dams cannot be too far from the minds of those of us in the Highlands. For example, anyone who drives on the road between Dingwall and Ullapool and passes Loch Glascarnoch dam—one of the great hydro dams of the 1950s—will recognise that the houses and the inn at Aultguish that are just below the dam are in the kind of place that Peter Peacock talked about, which was not covered by detailed planning regulations when the dam was constructed. I am not saying for one minute that there are dangers in the structures there, as they are well maintained, but it is important to recognise that there has to be a clear understanding in civil engineering terms of the capacity of the relevant dams.
The fact that the bill will increase the number of dams that Scottish and Southern Energy has responsibility for from 80 to 90 means that the structure of and safety issues around more and more structures will be examined. I welcome that. Most people recognise, when they drive along the roads, that a lot of the structures are quite old, and we all hope that they are maintained in the best possible fashion.
It is interesting that people are creating new dams. I want to speak about an example of one such dam, although I am not sure whether I can confirm that it is the size of four Olympic swimming pools. Last summer, Lighthouse Caledonia, one of Europe’s leading producers of farmed salmon, wanted to safeguard water supplies to its salmon hatchery at Loch Carron, on the Applecross peninsula, and lower rainfall meant that it wanted to increase the size of the reservoir by 30 per cent. It was able to carry out the necessary work, including the installation of a new pipe system, in six weeks. It is a fairly small dam, but it has an effect on the areas around it, and its environmental impact will be measured. I am delighted that it will be possible for us to ask SEPA to consider such developments, as the relevant parliamentary committee in future will be able to consider how the process of regulation, registration and enforcement is taken forward. The bill will allow that to happen, and I am delighted that we will be able to place something on the statute book before the end of March—I hope—that will be of use to many people across the country.
09:58
Like other colleagues, I thank the committee’s witnesses and clerks, as well as the committee members, for their work on the bill. We also had some useful briefings from the Royal Society for the Protection of Birds and Scottish and Southern Energy.
Although, as everyone has said, the bill is technical, that does not mean that it is not important, and there is a job to be done over the coming weeks to ensure that the issues that colleagues and witnesses have raised are dealt with.
Elaine Murray acknowledged the importance of climate change, noting that we will have stormier and more unpredictable weather. We therefore need to examine structures that people might not have thought about for decades and ensure that risks are properly assessed.
The background to and purpose of the bill are straightforward. What emerges from the committee’s report is the range of details that need to be pinned down at stage 2. That will be a difficult job because of the short time available. The committee makes the striking point that it was a challenge to scrutinise every aspect of the bill in the limited time that was available to it. The fact that the bill is not seen as being exciting does not mean that that scrutiny does not need to take place, so I hope that that will happen. I ask the cabinet secretary to make clear before stage 2 what he believes will need to be changed at stage 2. Ministers have not had much time to consider that since the report was published last week. We all took notes during the cabinet secretary’s opening speech, but a written comment would be helpful.
I will focus on the questions that are not answered in the committee’s report. It would not be surprising if those who own or manage reservoirs were nervous about the implications of the report, some of which are fundamental to their work, such as knowing whether a reservoir is or is not within the threshold. Having a threshold seems eminently sensible, but it will be challenging for people to find out whether they have crossed it. Other important issues include timescales and the cost of studies. There will be costs to people who manage reservoirs, and we could do with more clarity from ministers about that.
There are particular issues about responsibility. Responsible owners will manage their reservoirs well and ensure that they are kept to a high standard. However, we should understand people being nervous about the process. Like Elaine Murray, I agree that giving SEPA responsibility for managing the process makes a huge amount of sense, because of its existing flooding expertise, the fact that flood maps are already being drawn up for river basins and the fact that flood catchment areas are being extended. However, as Elaine Murray pointed out, SEPA is undergoing cuts, and even though, in the big scheme of things, it does not seem that the work that the bill will give to SEPA will involve a lot of money, it will either push other priorities aside or it will require changes to be made. We would like ministers to confirm that they do not think that the new responsibilities will be a problem for SEPA or that they will dislodge other important work.
There are concerns about the cost of the legislation. We need to make clear exactly what financial support the Government is prepared to offer. The cabinet secretary mentioned that in his opening remarks, and I would welcome more detail. For example, there is a need to pin down exactly what the cost implications would be for community groups in situations in which Scottish Water offered a community a reservoir that it no longer needed but which the community wanted in order to take advantage of the recreational opportunities that it provided. In that situation, would there be a dowry from Scottish Water? Who would be responsible for registration and for any works that happened after the reservoir was transferred? Such communities would need to be aware of the financial implications. There is also a question about smaller businesses that exist on a shoestring and do not make a lot of profit. John Scott and Peter Peacock spoke effectively about that.
This is a technical bill. I remember sitting through the debates on the Water Environment (Controlled Activities) (Scotland) Regulations 2005, which involved discussions of the cost of implementing the regulations. Such matters might not look huge in the big scheme of things, but the related issues of costs and timescales can be important to those who are affected by them. We need clarity about such matters before stage 2.
I want to end on planning issues. If developments are built downstream, there is a question about costs and who takes on the bigger risk. That is fundamental. The committee is clear that the developer should be responsible and that there should be clear planning guidance. We all know that planning guidance cannot be wished out of a hat instantly. Dealing with such issues takes time. In implementing the bill, consideration must be give to responsibilities. From the minister’s evidence to the committee, it seems that the Scottish Government’s view is that, once the regime is in place and reservoirs that are over the 10,000m3 threshold are covered, it will be up to those who build below a reservoir to take on the risk. I take Bill Wilson’s point about the word “risk” flagging up concerns, but I think that developers will have to factor that into new developments. People must consider the issues carefully.
I am concerned that, because the bill has been labelled as technical, everyone thinks that it can be rushed through Parliament. The fact that we were all delighted to hear that another debate was being scheduled for this morning exposes that view. However, stage 2 of the bill will be important in teasing out the issues that I have mentioned, which are important to those who will be affected. The committee has recorded that it felt rushed at stage 1. I hope that we can make stage 2 a meaningful stage in the progress of the bill, so that we can get the detail right. In that regard, it would be helpful if, before then, ministers were up front about the amendments that they intend to make and their views of the committee’s recommendations.
Once stage 2 has begun, it is hard for members to plug gaps if the Government does not deal with matters that it has been assumed it will deal with. Anything that the cabinet secretary can do today to allay people’s fears, clarify points of detail and give the committee more certainty before it gets into the nitty-gritty of stage 2 will do the Parliament and the owners and managers of reservoirs a great service.
10:05
This has been a productive and fairly consensual debate, with some worthy contributions from members on all sides of the chamber. Peter Peacock, Rob Gibson and Jamie McGrigor all mentioned that reservoir safety is very important in the Highlands and Islands. I noted its relevance to my own region of the South of Scotland, which has many reservoirs that feed Edinburgh, and thereby affect Sarah Boyack’s constituency.
Sarah Boyack and Elaine Murray mentioned climate change and its effect on reservoir safety. To go back to my example of the Megget reservoir, the earth dam there was recently reinforced with more stone, because the winds and waves have been higher and stronger than originally calculated when the dam was built.
Several members have noted that when the bill receives royal assent, SEPA will acquire many additional powers as the recognised enforcement authority for reservoirs. Those powers will include serving enforcement notices on reservoir managers, appointing relevant engineers and imposing monetary penalties when an offence has been committed.
It is clear that SEPA will be burdened with many new responsibilities on top of its already extensive remit, and that will be costly, as Elaine Murray, Sarah Boyack and I pointed out. The Government’s own figures reveal that the full implementation of the bill will cost SEPA £4.2 million in the period up to 2016. It is expected that £0.34 million of that will be spent in the next financial year alone on recruiting just five new staff members—I hope that that is not an example of high pay coming into Government again. I am interested to hear from the cabinet secretary the Government’s plans for how SEPA will meet those additional costs. That is important, particularly when one considers that the spring budget revision for 2010-11 showed that SEPA’s spending was £48.2 million, and its budget for 2011-12 is £10.4 million less than that.
I am aware that an enabling power could allow Scottish ministers to let SEPA recover some revenue by transferring some of the costs to reservoir managers. However, that would only slightly reduce SEPA’s resource figure, and it would risk higher water rates. I would be grateful if the cabinet secretary addressed that point.
There is a wider issue in terms of burdening managers of reservoirs that are not regulated by the 1975 act with costs that they will find difficult to meet. Now that the threshold will rightly be lowered, many smaller and perhaps privately owned reservoirs that are used for angling will be included. Peter Peacock gave examples of such reservoirs, and I mentioned some that exist in my own region.
A glance at the committee’s recommendations in its report reveals that it is awaiting clarification on a number of points relating to costs. It would be unfair to expect some reservoir managers to absorb all the costs without assistance, and I am glad that the cabinet secretary has stated that the Government is considering assistance in certain cases. I would like to know where we are with that. Many of those reservoir managers operate without the luxury of extensive resources or deep pockets, and we must be mindful of overburdening them. Like the committee, I await further clarification.
However, there is certainly much to be lauded in the bill, and it has clearly benefited from a consultation exercise with high-quality responses. The bill is important for safety. Peter Peacock mentioned that many dams are more than 50 years old. In fact, many are more than 100 years old. Lowering the threshold and creating a central register of reservoirs are sensible ideas.
Ultimately, I support the general principles of the bill. However, we require further clarification from the Government on a few issues, with a particular focus on whether assistance will be provided to reservoir managers and how SEPA will operate as an enforcement authority despite the cuts to its budget. I look forward to scrutinising the bill as it progresses through the Parliament, and I will support it at stage 1.
10:10
This short debate has been useful, and has contained some good speeches. As I suspected at the beginning, it has been consensual, as befits the subject. However, I am sure that the cabinet secretary will want to address a few points.
Reservoir safety is the key aim of the bill. I live on Loch Aweside in Argyll, and I well remember the events of 1992, when a combination of circumstances led to an 18ft wall of water being released from the Loch Awe barrage dam. A dam does not have to break to cause damage—there can just be an exceptional release. In that case, it washed away a three-arch-span Thomas Telford bridge and did untold damage to the banks of the river and to angling interests. The rubble of the bridge and the damage to the banks can still be seen today.
We have seen the power of water and flooding recently in news bulletins from Australia and South America, and we must not forget the collapse of the reservoir that held toxic waste in Hungary. Those incidents must all make us very aware of the danger of the collapse of reservoirs, and the bill is important in that respect.
I will not add a great deal to my earlier remarks, but I ask the cabinet secretary to give a clear assurance—for which the Rural Affairs and Environment Committee has also asked—that the Government remains committed to substantial dialogue with the Institution of Civil Engineers and other key stakeholders in the subsequent stages of the bill.
On the finances, and the extra charges that may come from the bill, there seems to be a huge discrepancy. According to the financial memorandum, the SEPA charges and costs for supervision and reviewing and testing flood plans vary from £525 to £21,000. Supplementary evidence from SEPA states that the annual subsistence charges will be in the region of £100 to £300. There is a vast disparity in the figures, and I hope that the cabinet secretary can clarify what the charges for small businesses—which they have not previously had to pay—are likely to be.
The Scottish Conservatives are otherwise happy to support the bill and to allow it to move to stage 2.
10:13
Peter Peacock referred in his speech to John Scott’s role on the committee, given his experience as a civil engineer. I concur with those remarks: John Scott exhibited an enthusiasm for the bill that was possibly not mirrored by all his colleagues on the committee, and he certainly brought some extremely useful expertise. I also acknowledge the role that Peter Peacock and Sarah Boyack played in filling up some of the time in this debate by exceeding their five minutes.
The bill is technical, and generally consensual. However, Jamie McGrigor was quite right to remind us in his closing speech of the serious consequences of flooding that we have seen across the world, even in the past year. It is easy to be flippant about consensual matters, but the issue at stake is serious, and we should bear that in mind.
Sarah Boyack, Peter Peacock, John Scott and other members referred to the concerns of reservoir owners. It is not just big companies that own reservoirs; private individuals, small groups and non-governmental organisations are also among those that do. Owners are worried that the bill will place new regulatory burdens on them if they happen to have one of the estimated 1,150 new reservoirs that are likely to come into its scope. That is not a reason to oppose the bill, but RSPB Scotland, in its briefing for the debate, points out that some bodies of water that will be captured by the bill are managed for wider public benefits such as biodiversity, rather than for commercial gain.
As the cabinet secretary said, consideration is being given to how to assist reservoir owners, but has consideration been given to some sort of scale of charges for different types of reservoirs that are managed for different reasons? Sarah Boyack mentioned that community groups have taken on land, including reservoirs, from Scottish Water, without realising that there might be extra financial burdens.
Public liability insurance has not been mentioned in this debate, but we considered it in the committee. There was general agreement in the committee that reservoir owners should be encouraged to take out public liability insurance if at all possible, and should possibly even be obliged to do so. The costs of that should decrease and the availability of insurance should increase if all reservoirs in Scotland are in such a scheme. Currently, 662 reservoirs are regulated under the 1975 act. As I said, the bill’s financial memorandum estimates that 1,150 reservoirs will fall under the scope of the new regulation. That number of reservoirs could be the basis for an insurance scheme, which would assist reservoir owners and those who might be affected by the consequences of any breach of regulation.
Bill Wilson, Peter Peacock and Sarah Boyack made important points about planning. Bill Wilson was concerned about the consequences of designation and Peter Peacock talked about the consequences for subsequent development. It is unclear how the designation of a reservoir will affect subsequent planning decisions or how subsequent development might affect the designation of a reservoir. A reservoir might become higher risk if somebody builds downstream of it, which could result in the reservoir owner incurring additional expenditure through no fault of their own. We would like clarification of whether a developer would be liable for the additional costs if a development caused an increase in costs to a reservoir owner. The committee suggested that that would be a good idea.
We also touched on the assessment of the risk of failure. Jamie McGrigor asked whether it is the probability of failure or the consequences of failure that have to be taken into account, or whether it is a combination of the two, and, if so, how those are weighted. There was disagreement during the evidence sessions about whether examination of the structures of a reservoir and its maintenance are sufficient to assess risk appropriately. We have talked a little about climate change. Climatic factors such as increased rainfall and events such as peat slides, which we were advised are fairly common in Scotland, can change the level of risk that is associated with a reservoir.
Jim Hume touched on the consultation on the guidance. Chapter 9 of the bill, which is entitled “Civil Enforcement, Emergency Powers and Further Offences”, gives SEPA the powers that it requires to enforce regulations. Many of the provisions are framework ones that give ministers the powers to create civil enforcement measures. Section 85 requires SEPA to publish guidance on how it will use the powers. Several organisations expressed concern about the breadth of the powers and said that they would welcome consultation on their implementation. As I think John Scott said, it would be helpful if SEPA consulted civil engineers and others before publication of the guidance so that, when the act is implemented, the guidance is available and stakeholders and reservoir owners are aware of their responsibilities.
I have probably used up my time, Presiding Officer.
There is no necessity to speak for the sake of it.
I was wondering about that.
I look forward to stage 2, when I hope we will address the various technical issues that have been raised.
10:19
I have been instructed to speak slowly, so I am sure that this will be at a good pace, Presiding Officer.
I am pleased that we have had an opportunity to debate the Reservoirs (Scotland) Bill, which ultimately will make Scotland’s reservoirs much safer. We have more than 1,000 reservoirs in Scotland, of which about 660 are currently regulated. The bill will capture many of those that are not currently regulated, to protect the public.
As John Scott said, we all like bills that capture the public’s imagination. Although we cannot pretend that this bill does so, the consensus is that it is an important bill nevertheless, given the consequences of flooding for communities and property. In the past few days and weeks, we have seen such consequences from around the world on television. When a reservoir collapses or is breached, it can devastate communities, as we know from our history and from events around the world, most recently in Hungary, where there was the dreadful incident to which members have referred.
As Elaine Murray said, the bill complements the Flood Risk Management (Scotland) Act 2009. That shows that the Scottish Parliament is taking account of extreme weather conditions, our changing climate and the potential impact of flooding. Wherever possible, we must provide a safeguard against those.
I am pleased with the debate and I am grateful to all the members who have spoken for their insights. I assure the Rural Affairs and Environment Committee that the Government and I, as the cabinet secretary, will respond to its stage 1 report. As Sarah Boyack said, we have not had much time to do so, as the debate has happened rather soon after the publication of the report. The debate has been helpful, but I intend to give a much more detailed response to the committee in the coming days. I hope that that gives members some comfort.
I am confident that our proposed stage 2 amendments will go a long way towards meeting the majority of the committee’s remaining concerns. It has been good to explore some of those concerns in more detail during the debate. We will reflect on the concerns that have been expressed as we prepare the stage 2 amendments.
Further thanks are due to the various stakeholders who have helped to shape the bill through their expertise and active participation in the consultation process and all the meetings that have taken place. All that good work emphasises the widespread support for the bill, which is important, and the agreement on the need to put in place a new and robust system for managing reservoir safety in Scotland. As members have requested, we will continue to work with all stakeholders as we proceed.
I will address some of the issues that members have raised. The issue of costs crept up in a number of speeches and we heard about the potential for those who own or run reservoirs to incur more costs. I am keen to point out that, if someone cannot afford to maintain their reservoir in a safe condition, they should perhaps not own a reservoir in the first place. As a society, we want only those who can afford to own and run reservoirs to do so—they need to be able to put in place the measures that must be taken to protect the public and local communities. If someone cannot do that, perhaps they should not own a reservoir in the first place.
The new regime will help reservoir owners who, because their reservoir is low risk, have perhaps been paying a bit more than they need to. They might not have to pay so much in regulatory costs in future because the new regime will be risk based. Whereas some people will have lower costs, others who are brought into the regime will face costs for the first time. We do not want any business to go bankrupt because of the potential costs of keeping a reservoir safe. That is why I indicated in my opening speech that, as the Minister for the Environment and Climate Change said to the Rural Affairs and Environment Committee, we will consider whether there is a case for assisting people in the specific circumstances in which they have a small business that would be made bankrupt because of the regulatory costs that they have to pay.
If a risk designation changes from low to high because of the bill, who will be responsible for the extra cost burden?
There will be costs for owners and managers of reservoirs that have a higher risk designation under the new regime. SEPA will work with all owners of reservoirs to address issues of extra cost. Much effort will be put in to ensure that we minimise the costs, but someone has to pay somewhere.
Many members mentioned the financial burden on SEPA of taking on board responsibility for the bill. The Government will work closely with SEPA to ensure that it has the necessary resources. As we all know, SEPA has been going through several changes in recent months and years. In effect, those changes are making it a good-value and hyper-efficient organisation, which is what we all want.
Will the cabinet secretary clarify whether SEPA will pick up the cost of the initial risk assessment?
A lot of work is taking place between SEPA and the Government. Much of the cost to which the member refers will be picked up by SEPA and the Government. However, as the member knows, SEPA will be able to recover much of those costs from reservoir owners and managers—that is only right—and the fee scales are laid out in the bill’s financial memorandum.
I have a lot of sympathy with the cabinet secretary’s arguments about the need for people to be able to pay for the maintenance of their reservoirs. However, the issue is to do with those people who do not know whether their reservoir holds 10,000m3 or less. Who pays for the assessment of whether they need to be captured by regulation—SEPA or the reservoir owner?
I know that costs are of great importance to many committee members. I will clarify that point, as well as the numerous individual debates within it, when I write to the committee in response to its stage 1 report.
Bill Wilson said that there was total agreement on all issues between the Government and members in the chamber. It was perhaps unfair of him to say that, because it meant that we did not have much to debate. However, I assure him that, although I welcome the positive stage 1 report, there are a couple of issues in it on which the Government does not agree.
The first is recommendation 13, which suggests that weirs
“should be excluded without qualification”.
We do not think that that is appropriate because in Scotland, certain large structures that hold back large quantities of water are commonly described as weirs rather than dams. We do not want weirs to escape regulation so it is important that we do not rule them out.
The second is recommendation 19. In response, I note that although we would encourage reservoir managers to take out public liability insurance, we do not support making that compulsory because it would place additional ancillary costs on some reservoir managers. Indeed, our position is supported by the Association of British Insurers. I say to Bill Wilson that there are some issues on which there are grounds for debate in the weeks ahead.
Peter Peacock discussed the implications of the bill for the planning system in respect of the role of reservoirs. “Scottish Planning Policy” already states:
“Planning authorities must take ... flooding from all sources ... into account when preparing development plans and determining planning applications.”
Reservoir flood inundation maps and flood risk management plans will therefore inform decisions alongside other planning considerations. We have to keep a close eye on that. If there is further need to update guidance to local authorities, we will ensure that that happens.
Bill Wilson discussed the weighting of the various criteria that are considered when the level of risk posed by any individual reservoir is being looked at. I put it on record that risk to life will always be of paramount consideration, but environmental and cultural heritage also have to be considered because they are important factors when the risk posed by any individual reservoir is looked at.
Jim Hume mentioned the threshold of 10,000m3 and asked how that threshold was decided and what its significance is. The threshold is based on advice from the Institution of Civil Engineers and others, but regulations under the bill will allow any reservoirs with a smaller capacity to be brought within the bill’s ambit.
We do not want to bring reservoirs into public ownership—Jamie McGrigor touched on that, among other issues. We prefer reservoirs to be owned and managed by the private sector, organisations or individuals, as long as they are aware of their responsibilities to keep their reservoirs safe. That is the really important point.
Ironically, I see the Presiding Officer indicating that I am now running out of time, so I will finish. We all recognise that the bill is an important one that will protect the public. We recognise that work is still to be done, which is why the bill will be implemented in a couple of stages and why the new reservoirs that it will capture have until 2015 to be registered—we have a few years between now and then to capture them.
The bill is also about taking on board the potentially devastating consequences for communities, life and property of flooding caused by a breach or collapse of a reservoir.
I commend the bill to Parliament and thank members for their contributions today.