Meeting of the Parliament

Meeting date: Thursday, November 16, 2017

Official Report 901KB pdf

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Pow of Inchaffray Drainage Commission (Scotland) Bill: Preliminary Stage

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I move,

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

14:37  

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

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

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

It goes on to say:

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

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

14:38  

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

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

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

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

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

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

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

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

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

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

14:44  

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

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

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

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

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

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

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

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

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

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

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

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