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Pow of Inchaffray Drainage Commission (Scotland) Bill

Overview

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

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

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

 

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

Why the Bill was created

The promoters of the Bill believe that the legislation in place to govern the management of the pow is out of date and no longer fit for purpose. 

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

 

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

Becomes an Act

The Pow of Inchaffray Drainage Commission (Scotland) Bill passed by a vote of 112 for, 0 against, 0 abstentions. The Bill became an Act on 17 January 2019.

Introduced

The Promoter sends the Bill and related documents to the Parliament.

Preliminary Stage - General principles

The Committee examines the Bill. Then MSPs vote on whether it should continue to Consideration Stage.

Have your say

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

Committees involved in this Bill

Who examined the Bill

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

It looks at everything to do with the Bill.

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

Who spoke to the committee about the Bill

Video Thumbnail Preview PNG

First meeting transcript

The Convener

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

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

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

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

Alastair McKie (Anderson Strathern)

That is correct.

The Convener

I understand that 73 per cent of the heritors live on the Balgowan estate, which means that 73 per cent of heritors are represented by one commissioner and the remaining 27 per cent are represented by six commissioners. Do you think that that is equitable or fair?

Alastair McKie

The matter has been considered in detail by the commissioners. The commissioners will produce an amendment that would allow up to two commissioners to represent the Balgowan section of benefited land. That would increase the number of commissioners from seven to eight, so it would consequently be important to increase the quorum for meetings of the commission from three commissioners—as is set out in paragraph 4 of schedule 3—to four. That would ensure that 50 per cent of commissioners would be necessary to form a quorum—four out of the total of eight. We would be content with that.

The Convener

Do colleagues have any comments on that?

Alison Harris (Central Scotland) (Con)

No.

The Convener

Another matter that has come up is the role of the heritors in dismissing a commissioner. Having had the opportunity to reflect further on the issue over the summer, what are your current views on whether the bill should include a mechanism to allow that?

Alastair McKie

Under the bill, there is no right for the heritors to dismiss commissioners directly. Paragraph 13(2)(c) of schedule 2 states:

“The Commission may ... terminate a Commissioner’s appointment if ... the Commissioner is ... unable to perform the functions of a Commissioner, or ... unsuitable to continue as a Commissioner.”

That is the commissioners’ right. It is felt that, in practice, if heritors were extremely dissatisfied with a commissioner and the other commissioners did not take prompt action, the heritors could convene a meeting under section 7(1)(b) and make a motion at that meeting to request that the commissioners use their powers to dismiss a commissioner under paragraph 13(2)(c) of schedule 2. We accept that such a motion would not be binding on the commission, but it would be very difficult to ignore.

That is the position under the bill as it stands, but we have considered the point in more detail. If members do not consider that the provision that I have outlined goes far enough, the commission would offer an amendment that would give a simple majority of heritors on a particular section of benefited land—whether it be the lower, middle, upper or Balgowan section—the right to dismiss a commissioner, but only in relation to their particular section. Under such an amendment, the heritors for the Balgowan section, which includes the Balgowan properties, could dismiss commissioners for the Balgowan section but not the commissioners for the lower, middle or upper sections.

The reason why a majority of heritors for all the sections should not be able to dismiss the commissioners for a particular section is that each commissioner represents an identified section of benefited land and is appointed by that section; therefore, if a commissioner does not fulfil his obligations properly, that section should be able to dismiss them. That is an amendment that the commissioners would be prepared to offer.

The Convener

Another area that I wish to clear up is the potential discrepancy between section 8 and paragraph 13(2) of schedule 2, with respect to a commissioner’s being able to continue in post when they are no longer a heritor. Are you willing to consider an amendment to the effect that a commissioner who ceases to be a heritor can no longer continue to be a commissioner?

Alastair McKie

You have read my mind slightly. Yes—we are happy to consider that. The word “may” is used in paragraph 13(2), but the commissioners are content for a commissioner to be dismissed when he ceases to be a heritor.

The Convener

Our final point is an issue that was raised in one of the objections. A small residential property that is on a plot of land of significant size might incur greater liability, because of the acreage qualification, than a larger property on a smaller plot would. Has any consideration been given to an amendment that would allow the bill to take better account of the position of heritors with small houses that are built on relatively large plots?

Alastair McKie

That question will be answered by Jo Guest. However, to assist his answer, my colleague will now circulate to the committee some helpful papers that include a representation of the size of the buildings relative to the land or garden area, and some of the schedules. We have removed the names from the schedules to anonymise them, but they will be helpful when explaining what the commissioners’ position is on the issue that the convener has raised.

Jo Guest (Pow of Inchaffray Commission)

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

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

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

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

10:15  



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

The Convener

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

Jo Guest

If you feel that the issue has to be addressed, what springs to mind is to say that the footprint of the house be regarded as residential land, with any extra being regarded as amenity land because, in effect, the amenity land has a nil value. In the values that are set out in schedule 4 to the bill, amenity land has a value of £500 an acre, and we have assumed that £500 is the base value, so that works out as nothing—it is neutral. In the valuation, we take the current value of the land less the unimproved value, and we have assumed that the unimproved value is £500 an acre. Therefore, by putting a value of £500 on amenity land, that means that amenity land has no assessment, if you see what I mean.

The Convener

To realise that approach in the bill, would you be willing to consider lodging an amendment?

Jo Guest

It would not be overly complicated to say that the assessed value of a residential plot is a multiplier of the footprint of the building on it, with any surplus being treated as amenity land. It would not be overly difficult to devise that.

Mary Fee (West Scotland) (Lab)

Is the formula that you use in the bill to calculate the charges the formula that has always been used? When the housing developments were built, did you have an open conversation with the owners to explain to them how the cost is calculated?

Jo Guest

Do you mean for the present assessments?

Mary Fee

Yes.

Jo Guest

The history is that the first new house that was assessed was the one at Inchaffray, which is number 75 in the schedule of properties. When that was being built, I spoke to the person who was building it and we agreed that the charge should be linked to the water charges through council tax, although we are providing drainage and not water. In that discussion, we came up with the figure of £150 for the property, and that is what it still pays. When the Manor Kingdom development came along, I discussed the assessment with the developer and I referred to that other property, and we just applied that.

Mary Fee

So no independent assessment of how the charges should be levied has ever been done.

Jo Guest

No. The assessment was based on the example of the house at Inchaffray abbey.

Mary Fee

Did all the commissioners agree to the way in which that was done? Was it discussed with all the commissioners?

Hugh Grierson (Pow of Inchaffray Commission)

I am sure that we were all aware of it and happy with it.

Mary Fee

Saying that you are sure that you were all aware of it is not the same as saying that it was discussed with the commissioners. I need to understand whether one individual made the decision on how the charges would be levied or whether a decision was made collectively by the group of commissioners.

Jo Guest

As the surveyor for the commissioners, I conducted the negotiation. I would then have reported back to the commission and it would have said that it agreed with that.

Mary Fee

Okay. That is helpful. Thank you.

Alison Harris

Good morning. For the record, will you outline the promoters’ current position on whether there should be an appeal mechanism for disputes both about individual bills and about proposed amendments to the land categories? It would be helpful to the committee if you could explain the reasoning behind your current position.

Alastair McKie

On an appeal mechanism, I suppose that, theoretically, heritors’ ground for objection would be either that the annual budget that is set includes matters that the commissioners have no power to include, or that the estimates are too high—that is why they would wish to oppose. That being so, we consider that a right to object is, in practice, unnecessary because of the new measures that the proposed legislation will bring in. The bill is different from the 1846 act because, under that act, the right of appeal or objection was to do with the increase in the value of a property as a result of improvements to the pow. That is not really what the new way in which the bill works does—the process for setting the annual assessments and making the calculations is very mechanical, and the moving parts are in the bill; judgment is not being exercised. The bill sets out what the commissioners can include in the budget, so including anything that they cannot do would be ultra vires and challengeable by way of judicial review. The budget will be set by the commissioners, including two representatives from Balgowan, as we now know. The commission’s view is that, in practice, the commissioners are unlikely to overestimate the budget, as they will be most affected by it.

The budget includes an estimate of the expenditure for the coming assessment year, and we have specifically provided for anticipated surplus or shortfalls to be taken into account. Therefore, if the budget in one year is an overestimate, the surplus will reduce the next year’s budget.

We are very clear that the matter has vexed the committee and the commissioners have considered it very carefully to see whether they could include an additional measure or protection in the bill. It is not thought that such an amendment could include a formal right of objection as such, because we would need to ensure that whatever third-party mechanism could be given to heritors in relation to annual assessments was fairly straightforward and cost proportionate, bearing in mind that any expenses that the commissioners incur would have the effect of increasing the annual assessment.

However, although the commissioners are reluctant to provide an objection procedure that would involve reference to a third party such as the courts, they would be prepared to offer an amendment for a procedure for the committee’s consideration. What we have in mind is that the commissioners would notify the draft budget, including individual assessments, to all heritors. That would let them know exactly how much they would be expected to have to pay for the annual charge. The heritors would then have 21 days within which to comment on that and the commissioners would then be bound to have regard to those comments when finalising the budget, although they would not be bound to follow them.

The amendment would give heritors the right to have their say to the commissioners before the budget is finally set, so our proposed approach would go a bit further, but it would not be a formal right of appeal, because we think that that would be disproportionate in the circumstances and would hike up costs—

The Convener

Just to clarify, are you saying that your suggested amendment would enable heritors to raise an objection but the commissioners could disregard it?

Alastair McKie

The commissioners would have to take the objection into account.

The Convener

Can you define what that means, please?

Alastair McKie

The commissioners would have to have regard to the objection but they would not be bound by it. I suppose that it is analogous to people—

The Convener

So how would commissioners demonstrate that they had had regard to an objection?

Alastair McKie

They would have to meet and consider an objection carefully and they would have to offer reasons why they were choosing to disregard the will of the heritors who were making the particular objection. The commissioners would have to have a good reason for disregarding the objection.

Jo Guest

The point is that there is a budget of £20,000. If one vexatious heritor raises an objection, the objection process could cost thousands of pounds and would be paid for by all the other heritors.

Alastair McKie

That is one of my points but the other—

The Convener

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

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

Alastair McKie

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

I fully understand the ideological principle behind the committee’s questions, but we felt that what we could offer is an amendment that would give heritors the right to put their comments in writing; and the commissioners would then have to look at those comments, take them into account and consider them carefully. If the heritors made a good point, they might well persuade the commissioners that the budget that they had set was too high. If the commissioners simply disregarded or dismissed the comments without taking them into account, there would be the judicial review mechanism, because the commissioners would have failed to take into account important material information before making a decision. If the commissioners flippantly disregarded comments by heritors, the amendment would expose the commissioners to a potential claim for judicial review, so it strengthens and focuses the judicial review point.

The Convener

Do you think that judicial review is a realistic course of action for a heritor living in Balgowan estate, for example?

Alastair McKie

It can be an expensive process, I grant you; it is not readily available.

The Convener

The expense would dwarf the expenses that the commission would incur from having its own review process—is it fair to say that?

Alastair McKie

That is a fair point, yes.

Alison Harris

I hear and accept what you are saying and I understand where you are coming from. However, I also understand where we are coming from. If someone wishes to complain and puts in their objection to the commissioners, they would have to have valid reasons and so on. However, if no resolution could be achieved, is there no way that the matter could be put to a third party—another surveyor or somebody else—without having to go down the court route?

If a landlord with a rental property increases the rent, for example, and makes it too high—more than inflation—the tenant does not have to go back to the landlord; they have the right to put the matter to a third party who may be slightly more independent.

10:30  



Jo Guest

Would an independent expert be a viable option?

Alison Harris

That is what I am getting at.

Alastair McKie

Could I confer with my colleagues on that? I understand your point.

Shirley Davidson (McCash & Hunter)

My initial reaction is that it is not a landlord-tenant relationship.

Alison Harris

I appreciate that.

Shirley Davidson

The commissioners have an equal interest and they also have some expertise in what they are talking about.

Alison Harris

I fully appreciate that too, as do landlords and tenants. I was just making a comparison that sprang to mind.

Shirley Davidson

It is not really a direct analogy, because in this case their interests converge.

Alison Harris

Let us disregard that comparison, then, and go back to where we were originally. As I understand it from what you have said, if I am a heritor and I wish to complain, I have to go back to the same commissioners who made the original decisions. There may be a requirement for them to give me reasons, but if their reasons are similar to their first reasoning, my complaint is basically dismissed. That is why I was trying to give a comparison, as a way of asking whether there is a way forward from here.

Shirley Davidson

The heritor has an elected representative sitting on the commission.

Alison Harris

I still come back to where I stand. They would still be going back to the same commissioners to say that they were not happy.

Alastair McKie

Could we have a wee conference about that? I think that it is a valid question.

Alison Harris

Please do.

Alastair McKie

Thank you for indulging us and allowing us to discuss that for a few moments. We agree that we are certainly prepared to consider some form of referral to an independent expert, probably a surveyor. That would be similar to what we have in sections 11 and 12 of the bill, on the revaluation process. The issue for the commission is not just the cost but the speed with which that decision could be reached, because if a decision is not reached it holds up the whole annual assessment and we cannot move on. We have a right of representation, which has a 21-day turnaround period, and I think that we need to have an equally fast turnaround for referral to an independent surveyor.

The Convener

I appreciate the argument that the commissioners themselves have a clear interest, and the committee does not doubt the dedication and diligence with which the existing commissioners carry out their duty. However, as the promoters of the bill, you are asking for the bill to become an act that conveys significant powers, and that is why we are prosecuting this line of questioning. I welcome the fact that you would consider an amendment, and I appreciate that that might be an idea that you are just presenting to the committee now, so I would be grateful if you could write to the committee setting out in more detail what those proposals would entail, if possible within the next two weeks.

Alastair McKie

Of course. The other point that was raised, and to which there is a lengthy answer, is about sections 11 and 12, on the mechanisms for the 10-year revaluation and the movement between land categories, because that is another area in which heritors might have an issue.

While the process under the bill might appear slightly less beneficial than the one under the 1846 act, it is controlled through the use of an independent surveyor. It is a very similar situation to our answer to your earlier question. Under sections 11 and 12, the surveyor, like the 1846 valuator, acts independently from the commission. The surveyor must be a member of the Royal Institution of Chartered Surveyors professional body rather than simply, as under the 1846 act, a skilful and impartial person. In practice, similar to the 1846 act, the heritors can make representations directly to the surveyor in that regard.

In practice, we think that the valuation issues are not particularly complicated because they relate to the category of land that is being looked at and whether it is going to be amenity, agricultural, commercial or residential. If there were a right to appeal to the courts beyond the surveyor, the court, when faced with a valuation question, would refer the matter to the surveyor, so we are really going the shortest route to that. The promoters believe that the use of the independent surveyor is a cost-effective system for all involved, having regard to the relatively low level of assessments. However, I appreciate your point about people having rights.

Alison Harris

Property factors are currently regulated under the Property Factors (Scotland) Act 2011. The Law Society suggested in its written submission that consideration should be given to whether the commission should be regulated under the 2011 act. What would be your view on that proposal?

Shirley Davidson

I can answer that. The commissioners do not consider that they fall within the definition of a property factor. Section 2(1)(a) of the 2011 act defines a property factor as someone

“who, in the course of that person’s business, manages the common parts of land owned by two or more other persons”.

However, the pow does not fall within the definition of a common part.

Mary Fee

I want to explore in more detail the issue of future statutory charges and the beaver barrier that we discussed the last time you were here. The commissioners have a licence from the Scottish Environment Protection Agency for dredging the pow and its tributaries. There are also regulations that could result in additional statutory charges, including construction design, health and safety and wildlife legislation. You have already given us some indication of those charges. Are you able to give us any more detail about what the future statutory charges might look like?

Alastair McKie

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

Jo Guest

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

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

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

The initial indication from SNH is that Government funding for the barrier work would be £10,000, which would leave a shortfall of over £30,000. I hope that the Government will increase the grant funding, because, at the end of the day, the beaver problem is one that has come to the pow. If beavers have been released illegally, and they have now been given protected status, there is nothing that we can do about that; we just have to deal with the problem.

Mary Fee

I take it that you are in communication with SNH at the moment, to try to negotiate.

Jo Guest

I have sent SNH a copy of the quotation. The next step is to see whether we can persuade it to give more grant funding. It just reports back to the Scottish Government, which will decide.

Mary Fee

Is there a formula for providing the grant funding?

Jo Guest

I do not know where the figure of £10,000 came from or how it was calculated. It had probably just been plucked from the sky before SNH had seen the costs. I do not think that it thought that the work would cost anything like the quotation figure.

Mary Fee

When do you anticipate that you will have more information on funding for the beaver barriers?

Jo Guest

I do not know. I need to go back and ask SNH, which will have to report back to the Scottish Government.

Mary Fee

Obviously, it has a significant impact—

Jo Guest

Oh, huge—yes.

Mary Fee

It has an impact on our discussions, apart from anything else, because, if £10,000 is all that SNH is prepared to give you, and you go ahead and put up the beaver barriers, you will need to raise £30,000, which will be a massive cost for the heritors. Have you considered how you will do that?

10:45  



Jo Guest

I suspect that that would be phased over a couple of years to make it palatable. We would not enjoy paying for it, either.

Hugh Grierson

It would inevitably affect our ability to start cleaning the pow again. The maintenance that we would like to do on the pow would be delayed until we could pay for those barriers over a few years. That is the most likely way forward.

Mary Fee

What impact would any delay to maintenance have on the pow? We have seen at first hand what the pow does.

Hugh Grierson

The bottom of the pow is beginning to silt up and the sides that are not stable are beginning to slip in. The more that that happens, the less water can escape from the valley and the higher the chance of flooding in the valley.

Jo Guest

I suspect that the reality is that it will take some time to sort out the discussions with SNH, which in turn will have to discuss the issue with the Scottish Government. If, next year, we can get back to cleaning the pow, that will probably be the priority. We want to catch up on the maintenance and then we can deal with the beaver issue. If £30,000 has to be raised, that will probably have to be spread over a couple of years.

Mary Fee

The potential cost implication for the heritors is pretty substantial.

Jo Guest

Yes, we know.

Mary Fee

Obviously, the committee would appreciate any further information that you can give us on your discussions with the Scottish Government.

Alastair McKie

The intention is to write formally to SNH after the meeting to ask for an update on progress and what it is doing on grant funding. Clearly it is a big issue for the commission.

Mary Fee

My next question is on debt recovery. When you came to the committee on 24 May, you gave us information on historical debt and your approach to collecting—or not collecting—it. For the record, will you confirm your understanding of the relevant provisions in the bill and the likely approach to debt recovery in practice? How will you determine what that will be?

Shirley Davidson

The commissioners met at a formal meeting on 15 August, when the matter was considered. The commissioners recognised that the householders who have been making payments may feel aggrieved, but it was agreed and minuted that the historical unpaids will be written off. That was felt to be a pragmatic approach in all the circumstances, which include the fact that the individual amounts in question are relatively small and it is possible that it would not be economical to incur the potential costs that would be involved in pursuing those sums.

Mary Fee

I understand that you have taken that approach in this case but, in future, a different set of commissioners might take a different approach. You need consistency in the way in which you manage the moneys that are collected.

Shirley Davidson

Are you talking about historical unpaids or new assessments under the bill?

Mary Fee

You need to future proof your approach. You need to have an understanding of how the commissioners will pursue any future debt. I understand the decision that you have made on how to handle historical debt, but what will happen in future if people do not pay?

Shirley Davidson

In future, if people do not pay, I believe that the commissioners would take court action for recovery.

Mary Fee

Do you just believe that, or do you believe it to be a fact?

Shirley Davidson

I believe it to be a fact.

Mary Fee

Okay—thank you.

Alison Harris

One of the policy issues that we covered in our previous evidence session was the need for good information for prospective purchasers about the financial obligations associated with the pow. You have stated support for a requirement for the land plans and amendments to them to be made publicly available, and we look forward to the bill being amended in that regard should it pass through the consideration stage. Likewise, would you support an amendment to the bill so that the register of heritors is publicly searchable if that could be done in a way that is compatible with data protection legislation?

Shirley Davidson

Yes.

Alison Harris

Good—that is enough.

Shirley Davidson

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

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

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

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

Mary Fee

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

Shirley Davidson

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

The land certificates for all the houses in the Balgowan housing development set out in full the deed of conditions, which makes reference to a requirement to pay a share of the annual drainage levy to the Pow of Inchaffray Drainage Commission.

Property inquiry certificates are produced in the general course of a sale and purchase transaction. I have spoken to the local private searcher, which most solicitors in Perthshire use, and to Millar & Bryce, which I think is the largest searcher covering Scotland. They have confirmed that in principle they would be more than happy to make specific reference to what will be the pow act if we provide the land plan, the addresses and the postcode or whatever of the properties and the land in question. That would assist.

It is absolutely the normal practice for solicitors to ascertain what the drainage position is. If they fail to do so or fail to adequately advise their clients of the position, clients can use a complaints procedure that is free to them, the availability of which must be brought to clients’ attention according to Law Society rules.

Mary Fee

Given that each section of the pow has commissioners who represent it, would it be unreasonable to ask the commissioners to speak to owners who are moving in to explain the situation to them? I fully understand what you are saying, but buying a house involves a lot of things and not everyone checks every bit of fine print. A solicitor could miss something. Would it be unreasonable for the commissioners for each area to have almost an obligation to explain to purchasers that they are required to pay a share of the levy?

Jo Guest

Is there not something in the bill to say that a heritor remains responsible for the assessment until he gives formal notice to the incomer? He is going to be incentivised to tell the people, otherwise he will continue to be legally liable to pay the bill.

Shirley Davidson

That is right. That is another good point.

Hugh Grierson

We can provide information to those who seek it. The really hard part is getting out to the people who come in but do not know to come and speak to us. We can provide information to those who contact us; it is the responsibility for getting in touch that is the hard bit.

Mary Fee

To be fair, we are not talking about a town-sized housing development. The number of houses along the pow is fairly small, and commissioners represent different areas on the pow. For example, if another 10 houses were built on the Balgowan estate, the commissioners who live in that area would know that those 10 houses were being built and that 10 people were going to move in.

Jo Guest

That is fair enough.

Mary Fee

Or am I wrong?

Shirley Davidson

If they were new houses, that would not be much of a problem, because we would be notified if there was new development. However, I do not know how commissioners could keep tabs on the sale and purchase of flats.

Mary Fee

I return to the point that we are not talking about massive numbers of houses. We are talking about a fairly small number of houses, even if we include the existing housing stock moving to new owners.

Jo Guest

There is a Balgowan estate residents association, is there not?

Shirley Davidson

Yes.

Jo Guest

That might be a means by which the commissioners could be informed. We met the chairman.

Mary Fee

I suggest that you go away and think about that. You can then get back to us with some suggestions about how to make the communication a bit clearer.

Shirley Davidson

It is quite clear at the moment. I am not sure whether somebody would have to keep an eye on “For Sale” notices going up or removal vans coming round.

Mary Fee

Given the fairly small number of houses that are involved, I do not think that it is too onerous a responsibility to ask community councils or community groups to share their knowledge.

Jo Guest

It is likely that the Balgowan commissioners will be on the residents association and will know what is going on.

Mary Fee

Yes.

The Convener

Would the commissioners like to comment more generally on the actions that they will undertake to communicate with heritors in order to keep them informed of the work that the commission is doing? That was discussed at a previous evidence session, when reference was made to the potential for a website. I would be grateful if the commissioners or their representatives updated the committee on what action they will take to ensure that heritors are fully informed of all the work that the commission is undertaking.

Jo Guest

The website would be the logical place to provide information. It would contain information about the land plans, the list of heritors, the assessments and the minutes of meetings—they would all be on there. Communicating with heritors in that way would be much more efficient for us than sending out letters.

Alastair McKie

Establishing the website is a firm intention of the commissioners. If the bill proceeds and the committee were to amend it so that it required the full publication of the register of heritors, and if that register could be linked to the website, that would be an extremely good way of raising the public profile of what the bill is about—what aims and ambitions it will achieve and what the charges will be. That would be of benefit.

The Convener

Can we look forward to a Pow of Inchaffray Drainage Commission Facebook page or Twitter account?

Alastair McKie

Possibly.

The Convener

There are no further questions from members.

Alastair McKie

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

The Convener

Certainly.

Alastair McKie

They will not take long.

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

11:00  



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

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

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

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

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

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

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

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

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

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

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

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

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

The Convener

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

11:05 Meeting suspended.  



11:06 On resuming—  



The Convener

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

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

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

Members indicated agreement.

The Convener

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

Members indicated agreement.

The Convener

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

Members indicated agreement.

The Convener

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

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



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

Debate on the Bill

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

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Preliminary Stage debate transcript

The Presiding Officer (Ken Macintosh)

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

Tom Arthur (Renfrewshire South) (SNP)

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

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

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

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

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

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

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

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

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

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

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

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

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

I move,

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

14:37  



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

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

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

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

It goes on to say:

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

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

14:38  



Mary Fee (West Scotland) (Lab)

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

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

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

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

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

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

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

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

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

The Presiding Officer

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

14:44  



Alison Harris (Central Scotland) (Con)

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

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

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

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

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

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

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

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

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

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

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

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

Financial resolution

A financial resolution is needed for Bills that may have a large impact on the 'public purse'.

MSPs must agree to this for the bill to proceed.

Vote at Preliminary Stage

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Vote at Preliminary Stage transcript

The Presiding Officer (Ken Macintosh)

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

Motion agreed to,

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

The Presiding Officer

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

Amendment agreed to.

The Presiding Officer

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

Motion, as amended, agreed to,

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

The Presiding Officer

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

Motions agreed to,

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

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

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

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

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

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

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

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

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

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

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

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

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

Meeting closed at 16:46.  



MSPs agreed that this Bill could continue

Consideration Stage - Changes to detail 

Members of the Private Bill Committee can propose changes to the Bill. Objections and changes are considered and then decided on by the committee.

Changes to the Bill

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

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

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

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

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

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

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

First meeting at Consideration Stage (objections)

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

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First meeting at Consideration Stage (objections) transcript

The Convener (Tom Arthur)

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

Mary Fee (West Scotland) (Lab)

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

Alison Harris (Central Scotland) (Con)

Yes, it covers everything.

The Convener

Thank you. I want to confirm a few action points. Does the committee agree to group the three objections?

Members indicated agreement.

The Convener

Does the committee agree to invite all three objectors or only one or two to represent the group?

Members indicated agreement.

The Convener

Does the committee agree to invite the promoters and objectors to provide oral evidence, written evidence or both?

Members indicated agreement.

The Convener

Does the committee agree to delegate to the convener responsibility for inviting any additional witnesses nominated by the promoters or objectors?

Members indicated agreement.

The Convener

Does the committee agree to publish a report summarising the outcome of its consideration of objections?

Members indicated agreement.

The Convener

Does the committee agree that its consideration of amendments should take place on Wednesday 7 February, subject to any required changes of date later on?

Members indicated agreement.

The Convener

Does the committee accept the default order of consideration for the amendment phase?

Members indicated agreement.

The Convener

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

Members indicated agreement.

The Convener

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

Meeting closed at 10:10.  



Second meeting on amendments

 
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Second meeting on amendments transcript

The Convener

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

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

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

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

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

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

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

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

Alastair McKie (Anderson Strathearn)

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

The Convener

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

Alastair McKie

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

The Convener

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

Tom Davies

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

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

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

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

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

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

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

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

10:15  



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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The bill is highly vulnerable to the whims of future commissioners, which might be entirely inappropriate and might result in highly expensive works that cost everyone but are not needed. I make it clear that the view that I have expressed is not a comment on any of the existing commissioners; it is about the need for future proofing.

The third part of my objection relates to previously unpaid bills. I maintain my view that, as the 1846 act is to be repealed and replaced, calculations made under that act are null and void, so those costs should not be pursued.

That concludes my explanation of the three key points in my objection and the detail of why I have objected. Thank you for listening to those points. I will be happy to take questions and to be examined on what I have said.

The Convener

Thank you, Mr Davies. I invite the promoters to pose their questions to Mr Davies.

Alastair McKie

Thank you, Mr Davies. Do you have before you the inventory of papers that was circulated a moment ago?

Tom Davies

Yes.

Alastair McKie

Can you confirm that you are the owner of 5 Eden Square, Balgowan?

Tom Davies

I confirm that I am the owner of 5 Eden Square, Balgowan.

Alastair McKie

I think that you live there with your family.

Tom Davies

I do, indeed.

Alastair McKie

I invite you to turn to document 2 in the inventory. In the top left-hand corner, you will see that it is a land plan that is referred to in the Pow of Inchaffray Drainage Commission (Scotland) Bill. It is entitled “Balgowan Houses, Part 1 of 1”. Can you see that?

Tom Davies

Yes, I can see that.

Alastair McKie

Can you confirm that your property, 5 Eden Square, is within the large area that is coloured purple?

Tom Davies

Indeed, it is.

Alastair McKie

I invite you to turn to the next document in the inventory—document 3—which, again, is a plan. It shows the Balgowan area in a bit more detail. Can you see Eden Square just to the north of the centre of that plan?

Tom Davies

Yes. I am familiar with the location of my house.

Alastair McKie

Is your property number 35 on that plan?

Tom Davies

No, it is number 33.

Alastair McKie

I am sorry—is it the pink one that is south of the square?

Tom Davies

No, it is the green one that is north of the square. I do not live at 15 Eden Square; I live at 5 Eden Square, which is property number 33 on the plan.

Alastair McKie

I see—it is the green one that is north of the square. Thank you.

Tom Davies

It is directly opposite the pow.

Alastair McKie

Let us turn to page 9 of paper POI/S5/17/7/1. Do you have a copy of that?

Tom Davies

Yes.

Alastair McKie

You said in your objection that, when you first moved into 5 Eden Square, you were not aware of the nature of the pow or of the requirement to contribute towards its maintenance. Is that correct?

Tom Davies

That is correct.

10:30  



Alastair McKie

Can you now look at document 6 in the inventory, which is a copy of your title deed, and turn to page 16?

Tom Davies

I am looking at page 16 of 23.

Alastair McKie

That is correct. If you look at the fifth line up, it starts, “11. Drainage All Plots”. Can you see that?

Tom Davies

I am struggling to identify that at the moment.

Alastair McKie

It is on page 16, five lines up from the bottom.

Tom Davies

Oh yes—point 11.

Alastair McKie

Can you just read that sentence please?

Tom Davies

I will read it out for the benefit of everyone here:

“Drainage All Plots shall jointly pay an equal one-fifty-fourth share of the annual drainage levy due to the Pow of Inchaffray Drainage Commissioners in relation to the use of the Pow of Inchaffray for drainage for the Development.”

Do you wish me to go on, or shall I stop there?

Alastair McKie

Continue for a bit.

Tom Davies

Okay.

“If and to the extent required by the proprietor of the Development Amenity Ground, payment shall be made to the proprietor of the Development Amenity Ground who will then collect and forward such payments to the Pow of Inchaffray Drainage Commissioners.”

Alastair McKie

Just pause there. Your position initially was that you were not aware of the nature of the pow or of the requirement to contribute towards its maintenance.

Tom Davies

Indeed.

Alastair McKie

May we agree that that specific charge was included in your title deeds when you bought the property?

Tom Davies

I acknowledge that and I have never disagreed with the fact that it may well be in my title deeds.

Alastair McKie

How is it that you were unaware of it, if it was in your title deeds?

Tom Davies

I think that that would be a discussion between me and the solicitor who was acting for me at the time when I took on the property, because I did not read my title deeds. You may say that that was a mistake on my part, but I trusted my legal representative to do that for me. I was not alerted to it at the time and I was not aware of it until I received the first bill.

Alastair McKie

When you bought your property, was it never disclosed to you by the previous owner?

Tom Davies

I was the first owner of the property.

Alastair McKie

You were the first owner of the property, were you? Right.

Tom Davies

I distinctly remember the discussion with the vendor. I asked specifically whether there were any annual charges. I expect that they thought that I meant maintenance charges or something like that, but it was never identified to me at that point.

Alastair McKie

I want to make two points relating to the paragraph that you read out. May we agree that the reference for the charge—what it is for—is drainage? It uses the word “drainage”. I know that you have made some statements about flooding, but can we agree that this charge, per your title deeds, is about drainage.

Tom Davies

There are statements made about flooding, but they were not made by me in the first place—they were made by the commission.

Alastair McKie

I am less interested in that—we can move on to it later—but for the purposes of this title deed may we agree that the reference in terms of the charge being made by the commissioners on your property relates to drainage?

Tom Davies

I would not dispute what it says in the deeds.

Alastair McKie

May we also agree that there is no statement of any cap being placed on that charge in your title deeds?

Tom Davies

The deeds are clear for everyone to see. It does not appear that there is a statement of a cap.

Alastair McKie

Thank you. When did you become aware of the charge?

Tom Davies

I do not recollect a specific date, but I would imagine that it was at about the time that I received the first bill. I moved in in July 2010, so it would probably be at some point in 2011. I do not recollect the exact date.

Alastair McKie

Do you recollect how much the charge was?

Tom Davies

No.

Alastair McKie

Right. If I advise you that it was £150, would that jog your memory at all?

Tom Davies

Yes, and of course there was a different VAT rate then, so it was probably about £175 inclusive of VAT.

Alastair McKie

Have you been paying the annual charge?

Tom Davies

I have paid some, but not all.

Alastair McKie

How much have you paid towards it?

Tom Davies

I do not recollect the figure of my exact payment.

Alastair McKie

The records of the commissioners’ solicitors, McCash & Hunter, show that you are £620 in arrears on your annual charge of £150 plus VAT. They say that you paid £100 towards the 2016 assessment, but that you have not paid in the years 2014, 2015 or 2017. Might that be correct?

Tom Davies

That might be correct.

Alastair McKie

Your written evidence says that you have “come to understand” the nature of the pow and why it is needed and you accept that there should be a charge for it. Given that you accept that, and you accept the principle of paying, why have you not contributed any further sums?

10:30  



Tom Davies

I will make two points. First, following the original submission of my objection, I have come to a different conclusion about my property benefiting from drainage, because I do not believe that to be the case. I do not believe that it directly benefits from drainage.

Secondly, the reason for not paying is set out in my objection. I have objected for exactly the same reasons for choosing not to pay at times: I do not believe that what I am asked to pay is fair, proportionate or evidence based; and I do not believe that I have any direct relationship with the pow.

Alastair McKie

We will come to that in a moment. Staying with the theme of how much it might cost you and what the annual charges would be, can you now have a look at document 4? It is a schedule that the commissioners have supplied to the Parliament and it is on the Parliament’s website. Property number 33 on the document is your property at 5 Eden Square. Is that correct?

Tom Davies

Yes, that is where I live.

Alastair McKie

The new assessment for your property is on the basis of an averaged-out £20,000 annual assessment, and we can see from the document that your charge would be £16.90. Can you see that?

Tom Davies

I can see that.

Alastair McKie

Do you have any comment to make on that?

Tom Davies

I am not aware of any of those figures, nor have I seen a valuation, because that was not included in the original notes relating to the submission of the bill earlier this year.

Alastair McKie

I appreciate that this may come as news to you, but it has been on the Parliament’s website for some time and it is information that the commissioners have been giving to the committee. However, I think that your position is that you have not seen it.

Tom Davies

Do you mean this spreadsheet?

Alastair McKie

Yes.

Tom Davies

I was unaware of it, but thank you for pointing it out.

Alastair McKie

Doing the same exercise with the next schedule, which is document 5, we see that property number 33 is 5 Eden Square. Again, this is based on a £20,000 annual assessment, and we see a draft new assessment on your property of £51.51. The commissioners have carried out a further exercise to smooth out the potential effects of properties that have a relatively large garden-to-house size, and have put the figure through a multiplier. Under that new method of assessment for a £20,000 annual assessment, your annual charge comes out at £51.43. What is your reaction to that charge, given that the current charge being levied against you is £150, although I appreciate that you have not paid it?

Tom Davies

They are two very different amounts. I presume that those charges are based on the current assessment of the requirements of the pow.

Alastair McKie

They are based on the assessments under the bill.

Tom Davies

So they are based on the requirement for current work on the pow.

Alastair McKie

Yes.

Tom Davies

That is helpful to know. Thank you for bringing it to my attention.

Alastair McKie

I am just interested in your reaction. Your charge was £150 under the old arrangements—I appreciate that you did not agree with them—but under the new arrangement your charge is £51.

Tom Davies

I acknowledge those figures, but I have not done the calculations and I am not aware of how they have come about. I do not know what the methodology behind them is, nor do I know of assessments of the methodology.

Alastair McKie

I am advised that the calculations are on the chart, but I appreciate that you have not had time to look at that because this is the first time that you have seen it. However, can we agree that you are, arguably, getting something of a bargain, given that your previous charge was £150 but the charge is now £51?

Tom Davies

The point of my objection is not necessarily about the money; it is actually about a point of principle.

Alastair McKie

Right. Let us turn to some of those principles. You will know that the promoters have stated in both oral and written evidence that the basis for identifying benefited land in the pow is the original survey prepared in 1846. I think that your position is that you want a reassessment done because you do not trust or rely on that survey.

Tom Davies

No, I do not believe that I have any direct relationship with the pow. That is why I believe that a reassessment should be required.

Alastair McKie

Let us see whether you have a direct relationship with the pow. Document 8 in the inventory is a copy of the original survey plan that accompanied the 1846 act. It is of some length, but you should open it out fully, as the Balgowan section is on the last unfolding. Can you see the red arrow?

Tom Davies

Yes.

Alastair McKie

That was put there by me. May we agree that the area immediately above that, showing a series of enclosures, is Balgowan?

Tom Davies

It is not possible to identify detail. This is not an up-to-date map and it does not have any geo-references on it. I would have to assume that it is Balgowan—I take your word for it—but there is no detail to suggest to me that that is the location.

Alastair McKie

We can take evidence from Mr Guest on that if you dispute it.

Tom Davies

I do not dispute it; I am just pointing out that it is not easy to identify exactly where Balgowan is on this map.

Alastair McKie

I put it to you that, if you go back to document number 2, which shows the parliamentary plans that were derived from the original survey plan, you will see that the Balgowan area is the area that is indicated by that arrow.

Tom Davies

What is that arrow indicating? I do not want to be difficult—I want to be helpful—but it is not clear where Balgowan is on this map.

Alastair McKie

Well, we will have to take that in evidence in chief from Mr Guest.

If one assumes that the 1846 original plan was accurate—it was used for the purposes of an act of Parliament—why should the commissioners go to the expense of undertaking a reassessment?

Tom Davies

Mapping has changed quite significantly since 1846, as has the accuracy of maps. I would have to question whether this map is accurate with regard to the location of Balgowan.

That said, if we assume that your orange-red arrow is the south-west corner of Balgowan, it would appear that Balgowan sits somewhere in that area. However, as I said earlier, when the houses were constructed, there was mitigation associated with the development of the property, and the land was built up. That means that the houses were not built directly on this assumed location—the land was changed. My point is that that is why a reassessment of the land is required. Since 1846, there have been three significant changes, one of which is the mitigation that is associated with the housing development at Balgowan.

Alastair McKie

Would you agree that the most significant change has been the introduction of housing in this area, particularly around the Balgowan area?

Tom Davies

There have been a number of changes and I would not like to say which is the most significant.

Alastair McKie

You say that the land platform on which your development has been built was raised. May we still agree that the surface water drainage from the development flows into the pow?

Tom Davies

I do not know whether it does.

Alastair McKie

The position of the promoters is that it does. The land is at a higher level than the pow, is it not?

Tom Davies

When the surface water drainage leaves my property, it goes on to someone else’s property and I do not know what happens to it thereafter.

Alastair McKie

We will have to agree to disagree. May we agree that there is a waterworks that has been built for serving your development?

Tom Davies

Indeed there has been.

Alastair McKie

May we agree that that waterworks ultimately outfalls into the pow?

Tom Davies

I do not know where it goes. All I know is that it leaves my property and goes into someone else’s property.

Alastair McKie

If we assume that your surface water drainage and the outfall from your sewerage system flow ultimately into the pow, might we agree that you are benefited by the pow?

Tom Davies

I do not believe that I have any direct relationship with the pow or any direct benefit from it, so I am sorry to say that I do not agree on that point.

Alastair McKie

But if your property drains directly into the pow, as does your sewerage system, which we know exists and which I think the politicians saw when they visited—I think that you were on the site visit—is it not the case that you are living on land that is benefited by the pow?

Tom Davies

Who owns the sewerage system?

Alastair McKie

You tell me.

Tom Davies

I do not own the sewerage system.

Alastair McKie

I believe that it is in private ownership.

Tom Davies

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

The sewage leaves my property and thereafter goes into the community sewerage system and drains. I do not know any detail about that. It goes into someone else’s property, and I do not know what they do with it. I do not know how they treat it or where it goes. Therefore, I do not have any direct relationship with the pow.

Alastair McKie

Okay. You do not know the answer to the question, but can we at least agree that, when your title deeds were being prepared, those who drafted them were aware that you received some drainage benefits from the pow, because that is in your title deeds?

Tom Davies

It may be in my title deeds and in accordance with the 1846 act, but we are moving on—that act is going to be repealed and we are moving on to a new act. Therefore, it is appropriate to consider what the points would be under that new act. That is why I am raising my objection. The foul water drainage leaves my property and goes elsewhere. It does not go directly into the pow. I do not know where it goes. I assume that it goes into the drainage network.

Alastair McKie

Let us assume, just for the sake of it, that it goes indirectly into the pow. You are still receiving a benefit from the pow, are you not?

Tom Davies

The detail is important, hence my statement at the beginning. I do not own the sewerage works. I do not release anything into the pow.

Alastair McKie

Yes, but you release something into the waterworks that then goes into the pow.

Tom Davies

Yes, but it is not up to me when it is released into the pow or who releases it into the pow. For all I know, they put it in tankers and take it away. I do not know what happens with it. It goes into the treatment works, and then what happens with it is entirely up to the owner. I do not own the treatment works and therefore I have no control over what happens when it goes to the treatment works and what happens to it afterwards. On that basis, I have no direct relationship with the pow.

Alastair McKie

When the water lands in your garden or on your roof and the surface water runs off your property, it is at a higher level than the pow. Is it reasonable to assume that it ends up in the pow?

Tom Davies

I own 192m² of land, and I have a small garden at the back of my property. That 192m² is 0.192 of a hectare or 0.47 acres. Jo Guest and Hugh Grierson obviously own significantly more, as do all the farmers. Part of that—maybe 20m², 30m² or 40m²—is my garden. A lot of the water will be dealt with through interception and transpiration by the plants in the garden. The water that drains from the roof and gutters into the drainage soaks away and goes into the communal drainage system. It then leaves my property and I do not know where it goes. I can only assume that it goes into a communal drainage or sewerage system, but I have no control over what happens to it once it leaves my property.

Alastair McKie

The waterworks and the surface water drainage from your property have a dependency on the pow, so what do you think would happen if the commissioners stopped maintaining the pow and there was a problem that in some way meant that surface water would not drain from your property and the sewerage system would not work? Would you not want that to be repaired? Do you not have a dependency on the commissioners?

Tom Davies

The water that releases from my house goes into systems that are under the ownership of other organisations or people. I imagine that those who choose to release water into the pow would want to take that up with the commission but, as I do not release anything into the pow, I do not have any direct relationship with the pow and nor do I have any direct relationship with the commissioners.

Alastair McKie

But, come on, Mr Davies, you have a direct contractual relationship, because it is in your title deeds.

Tom Davies

It is important to get to the detail of what actually happens, although I appreciate that you want to do that—I do not dispute that. When the foul water leaves my property, it goes into the sewerage works, which is owned by Bett Homes. Then I presume—although I do not know—that it goes into the pow. As I said, however, I do not release it into the pow and nor do I have any control over its being released into the pow—that is not within my power or ownership. Therefore, there is a legal point about how I could possibly be charged for something that I do not have any control or power over.

Alastair McKie

Our position is that you are clearly a directly benefited person, Mr Davies. We are disagreeing on quite a lot, but can we agree that there is a direct contractual relationship in your title deeds requiring you to pay a one 54th share for the drainage into the pow?

Tom Davies

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

10:45  



Alastair McKie

We will need to choose to disagree.

We will move on to the points about flood alleviation. You have made some big points about that and about what, if anything, the pow does for you—you have said that it is definitely not flood alleviation. On that basis, will you look at document 1, which is the bill, and turn to section 27, which is on page 9. If we move down the definitions to the definition of “benefited land”—can you see that?

Tom Davies

Yes.

Alastair McKie

May we agree that the bill says that it is

“the land drained by the Pow shown”

on the coloured plans, which are the parliamentary plans?

Tom Davies

Yes.

Alastair McKie

On that basis, can we agree that the purpose of the pow bill in terms of benefited land is to ensure drainage, not flood alleviation, although I agree that flood alleviation may obviously be indirectly related to effective drainage?

Tom Davies

Is that a concession on the part of the commissioners that it is not flood alleviation?

Alastair McKie

In certain parts of the benefited land, there is some flood alleviation because drainage and flooding are obviously related concepts but, for the purposes of the charging system under the 1846 act and the bill, may we agree that the bill is about maintaining effective drainage?

Tom Davies

If there was any direct benefit for my property—with which I disagree; there is not—are you stating, Mr McKie, that it would be drainage and not flooding?

Alastair McKie

For the purposes of your property, I think that the pow fulfils a drainage function. It may, ultimately, fulfil a flooding function. If, for example, the pow did not flow, there might be flooding. Over what period, I do not know. However, the pow’s primary function, in so far as your property is concerned, is drainage.

Tom Davies

I thank you for making that concession and acknowledging that it is drainage.

Alastair McKie

Sorry, Mr Davies, it is not a concession; it is what the bill says. The bill is not called the “Pow of Inchaffray Flood Alleviation Commission (Scotland) Bill”; it is the Pow of Inchaffray Drainage Commission (Scotland) Bill.

Tom Davies

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

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

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

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

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

This sentence is used again in the promoters’ memorandum:

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

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

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

If flooding is not the issue, why has it been repeatedly stated that it is “vitally important” to prevent the flooding of my house?

Alastair McKie

That is a question that you will need to put to the promoters when they come to give evidence. I am asking the questions just now, but I think that we can agree that those words could have been better chosen in the correspondence with you.

Tom Davies

I will come back to that point. “Better chosen” is an interesting choice of words. I would perhaps use another word, which I will come to when I ask a question.

Alastair McKie

I say “better chosen” because we have agreed, have we not, that there is a relationship between drainage and flooding, because if you do not drain, you could flood? Also, it is a fact that residential properties need to be able to drain both surface water drainage and foul water drainage. If that drainage cannot happen, at some future point there will be a flood, or a higher propensity to flood.

Tom Davies

It is important to have a proper hydrological assessment of the catchment to identify the risks.

Alastair McKie

Your next big point is that you are concerned about commissioners—perhaps not the current commissioners but future ones—setting budgets at a level that you do not agree with, so you want to impose some form of cap or limitation.

I come back to this point: if you are not correct and we are correct that your property benefits from the pow, if the pow were not maintained, you would suffer some deleterious effects—not the least of which would be that you could not outfall the sewage from the waterworks and surface water drainage would not operate. Would not that then have the effect of reducing the value of your property? Would not you want the commissioners to have the freedom to do works that are needed solely—I stress the word “solely”—to maintain effective drainage?

Tom Davies

I will answer your question, Mr McKie. As I said earlier, I do not believe that my property has any direct relationship with the pow and it should be removed—

Alastair McKie

Can we just be a bit hypothetical here? In fairness, you cannot answer the question by saying that you totally disagree. Can you just humour me and answer this question: on the basis that your property is benefited by the pow, would you like the commissioners to maintain the pow?

Tom Davies

On the theoretical point that my property benefits directly—although I do not believe that it does—the commission has a duty to undertake works to maintain the pow. However—maybe I misunderstood the bill and I would be happy to receive further clarification—I do not believe that the bill currently provides the necessary protection to ensure that unaffordable increases are not unilaterally added to bills for me, my neighbours or any other heritor.

Alastair McKie

Okay. We will come to that in a moment. You have a developed point on that. You also mention in your letter of objection that you have concerns that the commissioners may build up a financial reserve. That is probably a related point—

Tom Davies

Yes. It relates to a potential financial reserve in the event of unexpected expenditure—the beaver gate has been talked about—as well as future proofing. What happens if, for example, all the farms are amalgamated and are owned by one owner, and that farmer then chooses to do unrequired works all along the length of the pow? A significant proportion of the cost of those works would have to be paid by the residents of Balgowan, who make up 73 per cent of the heritors. I believe that a mechanism needs to be in place to identify transparency, to resolve such conflicts of interests, and to ensure that there is a free and open tendering process for the work. A mechanism is needed that would allow control of expenditure.

Alastair McKie

I will just deal briefly with the financial reserve point. Do you agree that, as a prudent measure to address unforeseen circumstances, it is reasonable for the commission, in its duties, to be able to have a financial reserve for exceptional circumstances?

Tom Davies

In budgeting for maintenance of any piece of ground, it is appropriate to be able to call on reserves to deal with emergencies.

Alastair McKie

Schedule 1 on page 10 of the bill sets out the functions of the commission. What you were concerned about, in your lengthy answer to my question, was transparency in the possibility of amalgamation to one large farm whose owner then chose to do something that you would ultimately have to pay for, so you are worried about levels of control. In terms of the statutory functions that the commission would have if the bill were passed, the commission can only do the following things:

“maintain, repair and renew the Pow”,

take out the weeds on affected land and

“carry out improvements . . . and protective works”,

but only

“in so far as the Commission considers necessary or desirable to maintain effective drainage of the benefited land.”

Can we agree that that places a limitation on what the commissioners can authorise? It would have to be within those statutory duties. If it is not for effective drainage, they should not—they cannot—do it.

Tom Davies

Within those duties that would be conferred through the bill, I can see an opportunity to interpret the requirements of the pow—not to interpret the legislation but to interpret what is required. For example, what happens if an owner decided to reinforce the bank along the entire length of their ownership?

Alastair McKie

As I understand it, such work has been undertaken already.

However, if that were the case, the commissioners would have to pay for that as well, and they are trying to keep costs down, are they not?

Tom Davies

Is there a mechanism in the bill for the commissioners to keep the costs down?

Alastair McKie

There is not a statutory cap.

Tom Davies

That is my point.

Alastair McKie

Let us turn to document 7, on council tax banding, which is published by Perth and Kinross Council—your local authority. It breaks down the council tax banding by property value and what the individual charges are.

On page 1, at the bottom of the page, we see a “wastewater charge” column—which goes over the page—that starts at £154.20. Further on, the document talks about the value of properties and the charges for the next years. That is perhaps easier to see. You have, I understand, a property in the C to F range of council tax bands, so can we agree that you would, if you had an adopted sewerage system rather than a private system, be paying council tax of £200 plus?

Tom Davies

Yes—that is exactly right.

Alastair McKie

Under the current arrangements, on an assessment of £20,000, using the multiplier of 5, you would be paying £51 for that.

Tom Davies

I do not disagree with any of that. My understanding is that, in time, the sewerage system will be adopted by Scottish Water and the local authority. Therefore I will be paying the £200 plus in the future. The sewerage system has not been adopted, and I do not know the details of why—it has been suggested to me that it might not be up to standard, but I genuinely do not know. However, I understand that I will pay when the sewerage system is adopted by Scottish Water.

Alastair McKie

However, at the moment the sewerage system is an unadopted private system, is it not?

Tom Davies

Yes, absolutely.

Alastair McKie

So, looking at the situation purely financially, if you pay £51 with an assessment of £20,000, the local authority might charge a lot more. You may well know that the commissioners approached Perth and Kinross Council to ask it to look after the pow. It refused, as did Scottish Water, the Scottish Environment Protection Agency and all the rest. That is the situation that we were left with. If we set £51 against roughly £200 plus, you are not in an unreasonable state of affairs just now, are you?

Tom Davies

No. There is a difference of £150. However, if the sewerage system is adopted, at some point I will have to be charged. My second concern is that I cannot see in the bill any mechanism to prevent the amount being increased to an annual £200, £250 or £300, should the commissioners see fit to do that.

11:00  



Alastair McKie

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

Tom Davies

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

Alastair McKie

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

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

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

Tom Davies

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

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

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

Alastair McKie

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

Tom Davies

What would we be appealing against? The likelihood is that there would not be a substantial difference in the cost of the digging. My question would be this: is the work actually needed, and has there been a thorough and proper explanation to demonstrate that it is needed?

Although a right of appeal is welcome, there is a much bigger picture that needs to be inclusive of all the heritors, so that they can understand why the pow is being dug and the costs, and so that they can see that there has been a fair tendering process, to get best value for the heritors. They should also have the ability to veto or have some mechanism to challenge the rate. A right of appeal on just one point is narrow.

Alastair McKie

You are saying that the grounds for appeal are narrow, but I do not agree with you, because the independent expert would obviously look at the budget, the work and the costs of the work.

Tom Davies

Is that all detailed in the more recent submission?

Alastair McKie

Yes.

Tom Davies

So will the independent expert look at the requirement for the work?

Alastair McKie

It is a right of appeal to an expert, and I assume that he would look at all those matters. He or she would need to form a view as to whether the annual budget is reasonable and is within the terms of the eventual act, because the duty of the commissioners is to ensure that there is effective drainage. That is their function. If the money is not being used for effective drainage, he or she is likely to say that the commissioners cannot charge that.

Tom Davies

That is an assumption. Perhaps more detail needs to be included, so that I can fully understand the proposed approach. As far as I can see, there can just be an appeal on the cost of the works, rather than on whether they are required, full stop.

Alastair McKie

No. I assure you that the right of appeal goes beyond looking merely at costs. An appellant would not just say, “This is far too much”; they would have to say, for example that the cost is too much because of some items that should not be included. It would be for the independent expert to look at all the issues in the round and take a view.

Tom Davies

Does the bill say that?

Alastair McKie

We have not formally drafted the right of appeal; it is only a suggestion and we are negotiating on that point at the moment. I can see what you want, but may I record—I do not want to do so wrongly—that you broadly welcome such a right?

Tom Davies

There needs to be further provision in the bill to protect all the heritors from unaffordable increases and to create transparency, to secure best value for money and protection from conflicts of interests. I welcome what you have proposed, but I do not think that it goes that far.

Alastair McKie

Okay. You would like it to go further.

Tom Davies

Much further.

Alastair McKie

I have no further questions.

The Convener

Thank you, Mr McKie and Mr Davies. We will have a five-minute comfort break.

11:08 Meeting suspended.  



11:15 On resuming—  



The Convener

I invite the promoters to put their case.

Alastair McKie

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

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

“is the land drained by the Pow”,

as shown on the parliamentary plans.

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

On that point, perhaps I could pass over to Mr Guest and ask him, as the author of the parliamentary plans and as someone who has interpreted the original survey plan, to explain what he did, as I think that that would be helpful. Again, it would be helpful if we had before us the survey plan—paper 8 in the promoters’ papers—and opened that up to where the pink arrow is shown. I should say that the pink arrow is not on the original plan; I put it on for ease of reference today. I invite Mr Guest to explain his understanding of the way in which the Balgowan area, which is what we have been dealing with today, is benefited land in terms of the 1846 plan and why that plan is reliable, and to explain how he transferred the identification of the benefited fields and enclosures on to the parliamentary plans.

Jo Guest (Pow of Inchaffray Commissioner)

The 1846 survey shows not only the pow and side ditches but the enclosures that comprise the benefited land. I appreciate that the plan was prepared before Ordnance Survey maps were brought in but, given that those maps started in about 1870, not that much before.

If you look at the Balgowan area, where Alastair McKie has put a red arrow, you can see the main pow; the Bachilton pow; the Jessie Burn, which goes north towards the north point; and the Cowgask, which is the side ditch running southwards. If you look at the double line, which is obviously the road that we drove along during the inspection, you will see that the enclosures between the road and the pow are shown as benefited land.

In preparing the plans in support of the present bill, we looked at the 1846 survey—I have a larger version back in the office—and, as accurately as we could, we transcribed the benefited land as shown on to modern Ordnance Survey vector data. I do not know whether you are familiar with it, but the Macaulay institute has classified all the agricultural land in Scotland into different grades, and there are maps showing where the different grades are. We transcribed those on to the new plan, and with digital mapping, it is very simple to work out the areas of the different categories of land. That is the approach that we took. We then took the values per acre for the different land classifications, whether it be the different grades of agricultural land, forestry land, residential land or commercial property land, and applied them to the areas that had been worked out using the digital plans.

Alastair McKie

That was very helpful. What is your understanding of the key changes that might have occurred in the area since the 1800s?

Jo Guest

I do not believe that the levels of the land have changed at all—the topography of the land is as it always was. There have been changes in the bed level of the pow where we have been able to achieve a better gradient, as we saw at Dollerie bridge, and in the late 1980s, we regraded the pow under Balgowan bridge. Indeed, during the inspection, I pointed out the underpinning work that had been done on the bridge, and that regrading work was what enabled the installation of the outfall for the wastewater treatment works.

Alastair McKie

I was actually asking about physical changes to the benefited land.

Jo Guest

Obviously there have been changes in land use. I can think of one area that used to be agricultural land but which is now forestry land, but other than that—

Alastair McKie

Perhaps I can direct the question at the Balgowan area. On the original survey plan that I am looking at, there appears to be no development there.

Jo Guest

No. Originally, the land was part of Balgowan estate, which was primarily to the north of the pow. Then there was a sawmill, which I imagine would have started off as the estate sawmill.

Hugh Grierson (Pow of Inchaffray Commissioner)

Yes.

Jo Guest

And then it would have been taken over by an independent timber merchant.

Hugh Grierson

With the railway in between.

Alastair McKie

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

Jo Guest

Yes. It would have been agricultural land.

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

Alastair McKie

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

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

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

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

Jo Guest

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

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

11:30  



Alastair McKie

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

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

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

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

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

Jo Guest

I make a supplementary point: from a practical point of view, we have used the same contractor—it has been the same person—to do the work on the pow for the past 30 years. He does an excellent job—he pretty much does all the land drainage for the farms in the surrounding area, he knows all the farmers, he is totally trustworthy and his charges are very reasonable.

I am worried that, if we have to go out to tender every time, we would lose that continuity and the intimate knowledge of how the pow works. We would have someone in for a year, but we would not know whether he would be there the following year. There is a lot of interaction with the local farmers to get access to the pow and to make practical day-to-day arrangements. If we have a contractor who does not know all the local farmers and other people, we might save a few quid on the cost of the work, but there would be a lot more time and expense spent supervising the work and making sure that it was done properly and did not upset all the farmers.

The Convener

I thank Mr Guest and Mr McKie for their comments. I invite Mr Davies to make any comments, or to put any questions that he has to the promoters.

Tom Davies

I have a few questions to ask. The charge is for those who benefit from the pow. In relation to the Balgowan estate, who releases water into the pow?

Jo Guest

The Manor Kingdom development drains to the wastewater treatment works. I think that the original idea was that the development was going to be common property, like the open areas in the development. It is rather like a block of flats where the external walls and the stairway are in the common ownership of the people who own the individual flats. My understanding is that that was the intention when Manor Kingdom started the development and that the open spaces and common areas of the development, including the wastewater works, would be under the common ownership of all the householders. I think that there was originally a deed of conditions.

Alastair McKie

Yes, there was.

Jo Guest

That is what is reflected in your title, Mr Davies. What happened was that, once Manor Kingdom built all the houses, it just wanted out, so it offloaded the development to an organisation called Greenbelt, which was given a lump of money that in theory lasts for ever and covers the cost of running the treatment works and maintaining the common areas for ever—we hope.

Tom Davies

So who releases water into the pow?

Jo Guest

It is from that wastewater treatment works.

Hugh Grierson

I will go further. The wastewater treatment works releases its sewage effluent into the pow, but I believe that every house releases its own drainage water into the pow.

Tom Davies

How do they do that?

Hugh Grierson

Through the drains.

Tom Davies

So when the water leaves my property and goes into the drains, who owns the land through which those drains flow?

Hugh Grierson

Are you asking me who owns the land between your house and the pow?

Tom Davies

Yes.

Jo Guest

I think that it will be in common ownership in the same way as the ownership of the green area in the middle of the development.

Hugh Grierson

I do not think that you can lose responsibility for your drainage water, Mr Davies, just because it passes through someone else’s land. Lawyers can correct me, but I do not think that that means that it is not your drainage water.

Tom Davies

That is not necessarily my question. Who owns the land from which the water is released into the pow?

Hugh Grierson

You own the land from which the water comes. You release it.

Tom Davies

I do not release anything into the pow. It goes from the sewage treatment works.

Hugh Grierson

You release it from your property and it ends up in the pow.

Tom Davies

But it does not go directly into the pow from my property; as I understand it, the water goes to the sewage treatment works.

Jo Guest

That is right.

Tom Davies

I do not know where it goes after that.

Jo Guest

I can tell you that it goes into the pow.

Hugh Grierson

The old drains in the ground on which your property is built will not go to the sewage treatment works; they will go straight to the pow.

Tom Davies

I doubt that the old land drains are still functioning.

Hugh Grierson

They are everywhere else.

Jo Guest

There are two pipes: one from the wastewater treatment works into the pow and another one that goes into the Cowgask, which runs into the pow. Those are two large pipes.

Tom Davies

It appears that you are not entirely clear about who releases water into the pow, but it is my understanding that the owner of the treatment works releases water into the pow.

Jo Guest

I am not sure whether the owner of the treatment works is Greenbelt or the house owners who have common ownership of the whole thing.

Tom Davies

It is a bit disappointing that you do not know who releases water into the pow.

Hugh Grierson

Legally, we know who benefits from the water being released into the pow, and that is what is legally important.

Tom Davies

I am not sure. I think that what is important is who actually benefits.

Hugh Grierson

Why do you think that? We are with you on benefit.

Tom Davies

Who actually benefits? Who releases water into the pow?

Hugh Grierson

Those are two different things. You have been trying to separate the two. We are happy for the people who benefit to be charged. You are now trying to say that you do not directly benefit because the water goes through a drain that someone else owns before it gets to the pow, and that seems a bit spurious to us.

Tom Davies

I do not agree that it is spurious. A landowner has to receive the water that comes from upstream of their property. For example, if the sewage treatment works was a community sewage works and the sewage was all transported away and disposed of elsewhere—which it could be, for all I know—it would not release anything into the pow.

Jo Guest

On that basis, the whole pow would be maintained by the landowner who owns the land at the bottom, where it runs into the River Earn, would it not?

Tom Davies

Yes, but it is all about benefit.

Jo Guest

Exactly.

Tom Davies

I do not believe that I receive any direct benefit, because water passes from my property to what is under someone else’s ownership: the treatment works. I understand that those treatment works are owned by Bett Homes—I do not understand exactly what happened to Manor Kingdom, but Bett Homes now owns the treatment works. That might be new information to you but, because of that, I imagine that it is Bett Homes that releases anything into the pow.

Hugh Grierson

We do not do drainage; we enable drainage. We dig a bigger hole so that your drains can work.

Tom Davies

But—

Hugh Grierson

Our hole is still there, and you are benefiting from it.

Tom Davies

It is not my drain, though. I do not release—

Hugh Grierson

Well, that is where we have got to. That is the nub of the matter. You might be correct in saying that it is not your drain, but I do not think that that gets around the issue of your benefit.

Tom Davies

I think that it entirely does. I do not think that I should have to pay for someone else’s direct benefit.

Jo Guest

If the pow were not maintained and those outfalls blocked up, your house would not be worth a lot, because you would have no drainage.

Tom Davies

That might be a point, but I do not think that it is entirely relevant.

Jo Guest

It is perfectly relevant.

Tom Davies

The person or organisation that actually releases water into the pow is the one that directly benefits.

Jo Guest

When the Manor Kingdom development started, we wanted to raise a single assessment against Manor Kingdom and let Manor Kingdom deal with the householders, who would all pay a service charge. That would have been much simpler for us, as we would have had to do one assessment instead of 54. That was our preference, but Manor Kingdom would not do that, which is why we have to deal with 54 individual people.

Tom Davies

It is obvious that you are not exactly clear about who releases water into the pow, who owns the land and who owns the infrastructure. It is concerning that the bill has got to this point and it is not clear who releases water into the pow. My point is that the one who releases water directly into the pow is the one who benefits and is therefore the one who should be charged. That charge might be passed on to a third party, but that is another point.

Jo Guest

It will not do it. We have already asked for that arrangement. We asked Manor Kingdom to do that years ago, but it would not agree to that. As I said, we wanted to make a single charge to whoever was going to be factoring all the common parts of that development, and we wanted them to deal with the individual householders, but Manor Kingdom would not agree to that.

Tom Davies

That is disappointing, but that is a historical point.

Jo Guest

That is why we have to deal with all the individuals.

Tom Davies

Under the current act.

Hugh Grierson

There are houses uphill from you. Do you accept that you are responsible for their drainage water because it goes under your house to get to the pow?

Tom Davies

It depends what you mean by drainage, because some water will flow into the groundwater under the property. Drainage from the rooftops will go into the communal drainage system, I assume. If we are going to get down to how much surface water is contributed through my garden and how much is contributed from someone else’s garden, we will be discussing very minimal amounts of liquid, because you will have to factor in the transpiration and the interception that occurs through the vegetation in my garden.

My point is that all the water that hits my roof goes into the drains and on to someone else’s land. I do not own that land and I do not know what they do with it. All the foul water goes out of my property and into someone else’s land, and I do not know what they do with it.

Alastair McKie

We are having quite an interesting academic discussion about whether your property is or is not benefited. However, in your letter of objection, you state:

“I have however, come to understand the purpose of the Pow and its history and I understand and accept I have to contribute towards its maintenance.”

May we agree that, when you made that statement, you must have had it in your mind that you were, in some way at least, benefiting from the pow? If you did not, you would not have accepted that and would not have said that you were prepared to contribute to its maintenance.

Tom Davies

Thank you for repeating my objection. Earlier today—perhaps I was not clear—I stated that I have since come to a different position to the one that I expressed in my original objection. I have come to the conclusion that I do not directly benefit and that my property should not be in the benefited land. I appreciate that that is different from what I said in my original objection and that it is arguable that I should have given that point greater consideration at the time.

I do not agree that my property benefits directly from the pow, because there is no direct relationship with the pow.

Alastair McKie

We will have to disagree.

Tom Davies

I will move on to another question. In relation to flooding, I went through various documents in relation to flooding. Would it be worth quoting them again, given that they are already on record?

The Convener

You may quote them again if you wish.

11:45  



Tom Davies

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

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

The letter goes on to say:

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

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

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

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

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

The promoter’s memorandum to the bill, which was submitted to the Parliament earlier in 2017, also says:

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

Even on the site visit, we had a brief dialogue about flooding, which was captured in the notes.

Jo Guest

It is quite clear that flood alleviation is a side benefit of the drainage commission. When the Manor Kingdom development was under consideration, Manor Kingdom’s flood consultants, Arup, came to see me. I showed them the plans, which showed the regrading of the pow under Balgowan bridge. They were very interested in the longitudinal section that shows it all in great detail. It is interesting that the outfalls from the waste water treatment works and the surface water outfall are set at levels that they could not have been set at had those regrading works not been carried out by the commission.

Tom Davies

Thank you for that. My question is this: if flooding is a side or minor issue—I believe it is even less than a side issue, because no evidence has been provided to support the statement that flooding is an issue—why has it been stated several times that it is “vitally important” that the work of the commission is carried out to prevent flooding in the area?

Jo Guest

There are quite large areas of agricultural land in the benefited area that flood in bad weather. However well we maintain the pow, we will not be able to prevent them from flooding. Nevertheless, they can be drained, because the pow is deep enough to allow drainage. I have such fields on my farm. They flood in bad winter weather and I would not dream of growing winter crops on them. However, I can grow spring crops on them because they can be drained.

Tom Davies

I accept that in respect of agricultural land. However, the note for the heritors’ meeting says that the benefit relates specifically to the Balgowan sawmill residential site:

“In addition, the Commission’s work has made residential development possible in some areas such as the former Balgowan Sawmill Site. It is therefore vitally important that the Pow is maintained to prevent flooding in this area.”

The linking of those two sentences suggests to me that the commission is saying that it is vital to undertake the work to prevent flooding on the Balgowan site.

Hugh Grierson

I stand by that. We are clear in the legal documents that the service that is provided is one of drainage. The reason that I pay the drainage bills is to prevent flooding. I believe that your site would flood if we were to undo the 1,000 years of drainage. I believe that the reason that you should pay for it is also to prevent flooding.

Tom Davies

Those are two separate things. We are past those 1,000 years of drainage work. We are where we are with respect to the pow and its current state. That is history.

Hugh Grierson

No. The pow requires maintenance to preserve it.

Tom Davies

The work that was undertaken on the pow is history.

Hugh Grierson

No, it goes on every year—at least, we would like it to go on every year. If we stop that work, the land will revert to its original state.

Tom Davies

The original state of 1,000 years ago?

Hugh Grierson

Yes.

Jo Guest

If you look down the valley, you will see that, until you get to the Balgowan development, all the houses are above the area of the plan—and for very good reason.

Tom Davies

I understand that, but I am not talking about the other houses; I am talking about my house.

Jo Guest

Your house is in the benefited area, but all the houses at that time were built above the benefited area.

Tom Davies

Yes, but it was built on higher ground. Do you have any evidence to say that flooding is an issue for my house?

Hugh Grierson

No. The evidence is that you benefit from the drainage.

Tom Davies

Flooding is not the issue.

Hugh Grierson

It is not the legal issue. However, if I were you, I would be very concerned about flooding, too.

Tom Davies

I am not very concerned, because there is no evidence that flooding is an issue.

Hugh Grierson

What evidence do you want—water in your home?

Tom Davies

The SEPA map supports my point, but it is an assessment, a model. There is still no evidence to support the statement that flooding is an issue. Has there been a hydrological assessment of the catchment and the potential flooding by a relevant expert?

Hugh Grierson

Of course not.

Tom Davies

It has been stated several times that

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

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

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

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

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

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

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

Alastair McKie

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

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

Another conclusion that was reached is:

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

Tom Davies

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

I submit that all the documentation has indicated to me and my neighbours that our houses will flood if the pow is not dug.

Jo Guest

When representatives of Ove Arup came to see me, they were very interested to know that the regrading works that we had carried out would be maintained.

Tom Davies

There is no evidence to support what has been said. It is not in the bill.

Jo Guest

Why should it be in the bill?

Tom Davies

Because you said that it is “vitally important” to prevent flooding in the area. If it is of vital importance, why is it not in the bill?

Jo Guest

We have an obligation to maintain the pow as a proper drain.

Tom Davies

I am not saying that it is in any way deliberate, but I think that some of the wording is a little misleading.

Jo Guest

I do not think so. We are trying to update the Pow of Inchaffray Drainage Act 1846, which states in its preamble that it is for better

“draining and improving Lands adjacent to the River or Stream called the Pow of Inchaffray”.

It does not talk about flooding; it talks about better draining.

Tom Davies

You have maintained that it is

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

Jo Guest

The 1696 act—the Act in favours of the Heritors adjacent to the Pow of Inchaffray—says exactly the same thing.

Tom Davies

Then why is it being repeated that it is

“vitally important to prevent flooding in this area”

if that is not in the 1696 act or the 1846 act and will not be in the 2018 act—or whenever the bill passes?

Hugh Grierson

Primarily because we cannot actually prevent flooding. We can drain as much as we want, but we cannot promise in the bill that there will be no floods. We cannot promise that in an act of Parliament; we believe that it will happen anyway, to a certain extent. What we will do is work as hard as we can to improve the drainage. Thereby, as a free benefit, we all get what we need, which is freedom from flooding.

Tom Davies

My point is that those are misleading statements. I do not think that that is deliberate; I simply make the point that we do not know how heritors would have reacted to the bill and the so-called consultation that you undertook prior to introducing it if the flooding statement had been removed—if the bill specified that it was about drainage and that flooding was not an issue. That has undermined much of the process to date.

Alastair McKie

The promoter disagrees.

Tom Davies

I accept that. I will move on instead of labouring that particular point. Do we have a timeframe for the conclusion of the evidence session?

Alison Harris (Central Scotland) (Con)

An hour ago. [Laughter.]

Tom Davies

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

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

The Convener

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

Alastair McKie

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

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

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

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

The Convener

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

Tom Davies

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

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

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

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

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

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

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

I conclude my summing-up on that point.

The Convener

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

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

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



Third meeting on amendments

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Third meeting on amendments transcript

The Convener (Tom Arthur)

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

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

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

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

Would the promoters like to make an opening statement?

Alastair McKie (Anderson Strathern)

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

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

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

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

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

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

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

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

11:00  



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

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

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

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

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

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

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

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

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

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

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

Counsel advises that

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

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

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

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

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

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

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

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

The Convener

Thank you, Mr McKie. Your apology is duly noted and accepted. There has clearly been a significant oversight—an omission—in the process.

I want to clarify something that you said, and perhaps Mr Guest would be best to answer this question. You stated that the promoters were unaware that plans were available. Was it the case that they knew that there had been other plans in existence but believed that those plans were no longer available? I want to clarify whether it was a known unknown or an unknown unknown.

Alastair McKie

The 1846 act makes reference to those documents, so it is clear from that act that those plans were prepared. That is the first thing that I would say about it—I defer to Mr Guest. As far as I know, the promoters’ position is that we did not know that those documents were available.

The Convener

However, it was known that there were other plans.

Jo Guest (Pow of Inchaffray Drainage Commission)

I had seen copies of the 1846 plan but I had not seen any of the other documents. If I had, I would obviously have taken them into account.

The Convener

Were you aware of their existence or potential existence?

Jo Guest

Only in the sense that they were referred to in the 1846 act. I have never seen them.

The Convener

To clarify, you were aware that there were other land plans in existence.

Jo Guest

I am aware only of the words in the 1846 act, which was drafted 170 years ago. I have never seen those plans.

The Convener

All that I wish to clarify, Mr Guest, is whether you were aware that other plans had been prepared or could have been prepared to be consistent with the act. You did not see those plans. Did you make any attempts to find out whether those plans were in existence or were accessible?

Jo Guest

I had seen the plan that Mr Murray, who used to own Dollerie farm, had. I had seen a photocopy of that plan, but that was the extent of the plans that I had seen.

The Convener

What about the plans that have subsequently been brought to light? Can you clarify that you were aware of their existence but had not studied them in any detail?

Jo Guest

The plan that I had seen was the one that Mr Murray, who used to own Dollerie farm, had. That is the only original plan from 1846 that I had seen or was aware of.

The Convener

You were unaware of the existence of the plans that have been brought to light by Mr Symon.

Jo Guest

I was unaware that they still existed.

The Convener

You say “still existed”. Were you aware of their ever having existed?

Jo Guest

To the extent that they are referred to in the 1846 act, I was aware of them.

The Convener

You were aware that there were plans in addition to what had been used in the preparation of the bill, but you did not bring that to the committee’s attention.

Jo Guest

I suppose, to be honest, I have learned quite a bit from going through this process. I was not fully aware at that time of the different versions of the plan that were produced in 1846. I suppose that I thought that there was one plan.

The Convener

As one of the promoters, you were aware that there were documents that could have an impact on who was eligible for assessment. You were aware of their existence but you did not bring that information to the committee. Is that correct?

Jo Guest

I was not aware at that time that there were different versions of the plan dating from 1846. I thought that there was one plan. There were different copies of the plan, but they were all essentially the same. I was not aware that the plans had been adjusted at that time, so my understanding was that there was one plan and that there were schedules that defined the areas on that plan that benefited. I was not aware that there were different versions of that plan.

The Convener

You were aware that there were multiple plans but believed that they did not differ from each other.

Jo Guest

They did not have photocopiers in 1846, so somebody would have produced the original survey plan, showing all the fields that might benefit from the improvements that were going to be carried out, and further copies would have been produced by tracing over it. It is quite possible that there would have been more copies, because somebody would have traced over the plan and produced them, but I was not aware that any such copies would be any different from the original.

The Convener

What do you mean when you refer to being aware of plans that are mentioned in the act in addition to the plan that was submitted originally?

Jo Guest

I mean that the act refers to plans that were produced on different dates.

The Convener

How many plans does the act refer to?

Jo Guest

I do not have the act in front of me, but I know that it refers to the 1846 plan. My understanding was that a plan was produced before the works were carried out. There was another, adjusted, plan, which would have been the same plan but would have been used after the works were carried out.

The Convener

Which plan have the promoters based the bill on?

Jo Guest

The one that Tony Murray of Dollerie farm has.

The Convener

Which plan is that?

Jo Guest

It dates from before the works were carried out.

The Convener

You were aware that there was a plan dating from after the works were carried out, which has been cited as changing the definition—

Jo Guest

My understanding was that the post-works plan was simply the first plan modified by the schedules, which identify which fields on the 1846 plan benefited from the work that was carried out.

The Convener

It was not simply a tracing exercise.

Jo Guest

The plans that I have seen all show basically the same fields. You have to read the plans and the schedule together. As Alastair McKie has told you, the plans do not have a red line showing the benefited area. The 1846 plan shows the fields in which there was the potential for improvement and a schedule shows the fields in which there was an actual improvement, according to the surveyor’s inspection, after the works were carried out.

The Convener

So, the two plans are complementary and should be considered together.

Jo Guest

They must be read with the schedule.

The Convener

Does the bill refer to both of those plans?

Jo Guest

Our bill?

The Convener

Yes.

Jo Guest

I do not think that it does.

The Convener

There are two plans that are to be understood as complementary, but the bill refers to only one plan. Do I understand you correctly?

Jo Guest

In a sense, this bill is a fresh start. It refers to a plan but I do not think that it specifies where that plan comes from; it simply talks about “the land plans”.

The Convener

It would not be unfair to say that there seems to be some ambiguity. Are you aware of any other land plans?

Jo Guest

For the current bill?

The Convener

That are pertinent to the current bill.

Jo Guest

I do not think so, no.

The Convener

Other than a subsequent plan—

Jo Guest

Other than the plans that we have produced, which we have been working on up until now, I am not aware of any other plans.

Alastair McKie

If I may interrupt, Mr Symon referred to an 1851 plan.

The Convener

So there is an 1851 plan. We now know that there is an additional plan that could impact on the definition of benefited land. Is that correct?

Alastair McKie

That is correct.

Jo Guest

I suspect that the 1851 plan will be a fair copy. The 1848 plan, which you have seen online, is essentially the 1846 plan, referenced to the schedules that were produced after the works were carried out. It is the same plan; it just has a docket in the top-left corner. I suspect that the 1851 plan will be that plan, but excluding the fields that did not benefit, if you see what I mean.

11:15  



The Convener

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

Jo Guest

Not unless another rabbit comes out of the hat.

The Convener

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

Alastair McKie

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

The promoters need to make a serious effort to make sure, once we have looked at the 1851 plan, that there is nothing out there that could contradict it.

The Convener

That seems eminently sensible, but I imagine that it would have been the correct course of action to take before introducing the bill. Why was that work not undertaken?

Jo Guest

We were simply not aware of the need for it.

The Convener

Is there anything else that you are not aware of?

Jo Guest

How do I know? It comes down to the known unknowns and the unknown unknowns.

The Convener

If you were aware that there were things that you might not have been aware of, why was work not undertaken prior to the introduction of the bill to establish what those things were? Why was contact not made with the National Records of Scotland? Why was research not commissioned?

Alastair McKie

With hindsight, that would have been the correct course of action. That is why we apologise for the error.

The Convener

I appreciate that, but I am concerned about the fact that the bill could have become an act without what we have learned today coming to light. Hindsight is all very well, but it is not very effective once something is on the statute book.

Mary, did you want to come in?

Mary Fee (West Scotland) (Lab)

No. My questions have been answered.

Jo Guest

It is fair to say that adjusting the plans will make them correct, but the financial implications of those adjustments will be very minor. One or two people will pay a bit more, but for the vast bulk of people, the practical consequences are likely to be pretty small.

The Convener

I appreciate that, but for the four new heritors, the consequences will be significant.

Jo Guest

There will be three new heritors, because one of them is an existing heritor.

The Convener

There is another point that I want to pick up on. Can you shed some light on why the Dollerie area has been excluded?

Jo Guest

I have some papers to hand round. When we prepared the plans and the schedule of heritors, we looked at the existing schedule of heritors, which, as you know, does not include Dollerie. The reason for that is confirmed in the book of reference, which specifically refers to the exclusion of Dollerie. I always understood that that was for the simple practical reason that the pow improvement works in 1846 could not have been carried out without the active co-operation of Dollerie.

Dollerie is the key point in the whole pow. Between the source of the pow at Methven Moss and Dollerie bridge—or rather, the Muckle Burn, which is just upstream from Dollerie—the fall is insignificant. To all intents and purposes, the pow is flat, and it runs through very soft soils. When you get to just upstream of Dollerie bridge, you get into hard sandstone and the ground levels rise quite significantly.

When the pow was improved in 1846, they had to dig through the sandstone rock at Dollerie in order to let the water through from all the flat ground upstream. In 1995, we did further improvements to the pow at Dollerie to improve the drainage upstream. I have with me photographs that I took at the time. They show that the work that was carried out was significant. We took out a huge depth of rock and large amounts of pretty unsuitable stuff. In order to dispose of the material, we had to dig pits in the fields on either side, bury the rock in them and then cover them over with soil. We were able to do that only through the good will of Mr Murray, who owned Dollerie at that time and whose forebears owned Dollerie in 1846. He received no compensation and no payment for that at all.

The Convener

Like the previous act, the bill seeks to give the commissioners permission to access people’s property in order to carry out maintenance. Why is that access a matter of good will in relation to the owner of Dollerie when it would be a legal requirement for other heritors?

Jo Guest

If we had said to Mr Murray that we wanted to come to his estate, dig up large amounts of rock and bury it in the fields, we would have come up against some difficulties.

The Convener

How big is Mr Murray’s estate?

Jo Guest

It is not very big; perhaps a couple of hundred acres. It is a house with some nice parkland and a few fields around it.

The Convener

How many acres does the average resident in the Balgowan estate have?

Jo Guest

I appreciate the fact that they have a much smaller area.

The Convener

So it is a question of power.

Jo Guest

When you look at the land—

The Convener

It seems that there are two classes of heritors.

Jo Guest

I know that the 1846 plan shows Dollerie as being potentially improved but, when you go and look at it, you see that it is grassland that slopes down on a steep gradient towards the pow—

The Convener

I appreciate the significance and the importance of that land, but this is a question about rights. Why is an exception being made?

Jo Guest

Because I do not honestly think that the land at Dollerie benefits from the pow at all; I think that it is the other way round. Mr Murray has provided all the other people in the valley with a great benefit by allowing his land to be used—

The Convener

If I understand correctly, the assessment in the plan suggests that Dollerie benefits from the pow.

Jo Guest

I agree that that is what the 1846 plan says.

The Convener

But you are saying that Dollerie does not benefit from the pow.

Jo Guest

Well, if you go and look at it—

The Convener

You are saying that land that has been identified as benefiting from the pow does not. You are, therefore, contradicting the plans. Why is that any different from an objector saying that their lands on the Balgowan estate have not benefited from it? They are both opinions.

Hugh Grierson (Pow of Inchaffray Drainage Commission)

Could I attempt to answer that? The 1846 plans showed that there was ground that benefited from the improvements. A note was then added by the surveyor, which the council picked up on—it is in the plans, but I am not sure of the exact place—that said that, although the ground benefited from the pow, the same benefit could have been achieved without the vast cost that was spent on maintaining the pow, simply by draining into an area where water ran freely. That was written into the legal documentation at the time, and that is what our counsel picked up on when he gave the opinion that it was right that there should not be an on-going payment in relation to that land.

The Convener

That ultimately creates two different classes with regard to people who benefit. A key issue that has previously been raised is the distinction between water that drains from agricultural land that has soil on it and water that is injected into the pow from the Balgowan estate. At previous evidence sessions, you have suggested that everyone benefits. However, you are now saying that there are different classifications of benefit and that that has to be reflected to the extent that someone on the Dollerie estate can be exempted entirely. Is that not inconsistent?

Alastair McKie

In paragraph 4 of the opinion of counsel, it states:

“In addition, it should be noted that the penultimate page of the Report accompanying the Book of Reference”—

one of the legal documents that we have circulated this morning—

“states that the surveyor has not apportioned any part of the estimated expense of the works to Mr. Murray of Dollerie because of an agreement between him and the committee of heritors who had promoted the Bill, which ... ‘provided that he was not to be liable in any part of the expenses’.”

I understand your argument, which is one of fairness, but the promoters are attempting to follow the 1846 act and to use it as a proxy for identifying benefited land. To follow that would mean that Dollerie would be excluded.

The Convener

Mr McKie, there are sections in the bill to repeal the 1846 act.

Alastair McKie

Yes, I appreciate that.

The Convener

What is the justification for retaining the provision?

Jo Guest

The surveyor in 1846 said:

“I must also state that I have prepared the Plans of the Works in terms of that agreement, the effect of which is that the amount of the expense of the Works have been very considerably increased above what is necessary for the purpose of the drainage or expedient for Mr Murray’s own interest.”

The Convener

I want to establish what the promoters think about the deal that was agreed. Is there a minute of the meeting at which that deal was agreed, or is there a contract that we can refer to?

Jo Guest

It is in the book of reference. I just read it for you.

The Convener

What about the nature of it? Was it a trade or an entitlement? Was it in perpetuity? What is the justification—

Jo Guest

It is in the book of reference.

The Convener

Why should that be preserved in the new act?

Alastair McKie

The promoters’ position is that we are using the red line from the 1846 act—which we accept will be repealed—for the identification of benefited land; we are using that red line for the purposes of the pow bill plans. The red line, for the purposes of the 1846 act, excludes the lands at Dollerie, because of the agreement that you referred to and which has been discussed, so we are simply following what was done before. You might say, “Why do that? Why not do something different now?” and I understand your point.

The Convener

I appreciate that, but there are lots of things from the previous act that you do not wish to continue, hence the introduction of the bill. You have not argued that the land at Dollerie is not benefited land; indeed, you have argued that there is other land in residential areas that is benefited and that should be subject to the charges. Why, in principle, do you wish to maintain the provision? Is there any reason, other than continuity?

Jo Guest

It seems to be the right thing to do.

The Convener

It seems to be the right thing to do—that is the opinion of the promoters.

Jo Guest

If we are following the 1846 plans, we should be consistent, and that is the basis on which they were done.

Alastair McKie

I think that the promoters will consider the direction of the questioning and perhaps revert back to the committee with a written statement.

Mary Fee

I would like some helpful clarification. Substantial work has been done at Dollerie and, on the day that we visited, we stopped at Dollerie bridge and saw the degree to which work had been carried out. Was that work carried out with the permission of Mr Murray?

Jo Guest

Yes.

Hugh Grierson

It went beyond providing access. It involved putting a lot of spoil into his fields.

Mary Fee

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

Jo Guest

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

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

Mary Fee

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

Jo Guest

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

Mary Fee

You do not think, or you know?

Jo Guest

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

Hugh Grierson

Does he have any benefit upstream of that bridge? I think that it is all downstream—

11:30  



The Convener

You are saying that the land at Dollerie is not benefited, so the land plans are wrong to state that it is.

Hugh Grierson

A section below the bridge is drawn in differently from the benefited land above. That section of land is benefited and the note with the plan says that that benefit could have been achieved without the expense of doing up the pow. Mr Symon estimates that the works resulting from the 1846 act would cost more than £1 million in today’s money. The note says that Mr Murray could have achieved that benefit without going to huge expense. I presume that a simple drain would have done it. Although he benefited, he did not need to spend all that money in order to benefit. That is the key reason that the original surveyor left him out of the assessment.

Mary Fee

He benefited in some way—

Hugh Grierson

Yes. There is a bit of a—

Mary Fee

He could have benefited without spending that amount of money, but he must have benefited from the work.

Hugh Grierson

Yes. It was shown that there is benefit, but it does not require a huge on-going expense to obtain that benefit.

The Convener

There is a fundamental problem here. In previous evidence, the distinction between benefited and non-benefited land was binary. Now, it is not—now it is ambiguous.

Hugh Grierson

This information comes from the original data. We have looked much harder at it and that is what it says. Our initial response has been to continue the arrangement. As Alastair McKie says, we are capable of reconsidering.

The Convener

Is it the promoters’ position that there are gradations of benefited land and that some land is more benefited than others in the overall category of benefited land?

Hugh Grierson

That is the position as set out in the 1846 act, and we intend to follow it.

The Convener

So if anyone suggests that, for example, their property is less benefited than another while still being benefited within the category of benefited land, they have a valid point.

Hugh Grierson

It is not more or less benefited—it is benefited at zero cost or at on-going expense. I would be happy to say that to any of the householders. All of us, apart from the owner of Dollerie, must spend money to maintain our benefit. The distinction that was made for Mr Murray 150 years ago was that he did not have to spend money in order to benefit.

The Convener

We have talked about a decision that was made 170 years ago and you have spoken about a decision that was made 150 years ago. Why should those decisions be continued? Is that fair, equitable and reasonable?

Hugh Grierson

To me, it is.

Mary Fee

Have you had any discussion with Mr Murray about the potential for him to—

Jo Guest

Mr Murray does not own the house any more—he sold it about two years ago.

Mary Fee

Have you had any discussion with whoever owns the house now?

Jo Guest

Not at all; I have never met him.

Mary Fee

No discussion.

Jo Guest

None at all.

Mary Fee

It has not occurred to you to meet him to discuss the works and the access issues.

Hugh Grierson

No. It is never necessary to do any work in that section of the pow. I have been doing the pow for 30 years and 1995 was the only time we ever did work down there, which was entirely for the benefit of the people upstream.

Mary Fee

Potentially, you could be required to do work there.

Jo Guest

That is very unlikely, because that section goes through a hard-rock channel. The usual reason for doing improvements is that the bank has slipped in. In 30 years, 1995 was the only time that we ever did work there.

Mary Fee

At no time did the commissioners consider it good practice to speak to the new owner of Dollerie to explain the function of the pow—

Jo Guest

He is not a heritor at the moment.

Alison Harris (Central Scotland) (Con)

I have been listening to everything that has been said this morning, but I have to say that we are going round in circles. We have an act from 1846. I heard what you said about the owner of Dollerie being able to do different work so that he did not feed into the pow, and the fact that nowadays you regard that land as not benefiting. Is that correct? We need to drill down into the issue. Either he is benefited or he is not.

Jo Guest

He does not benefit—it is the other way around.

Alison Harris

Currently, he does not benefit.

Jo Guest

No, it is the other way around. We have benefited hugely from—

Alison Harris

I heard that; I understand that. However, the issue that Tom Arthur is, I think, trying to get to is that someone in 1846 deemed that the owner of Dollerie benefited and therefore wrote in that he would not have to contribute because he was gracious in allowing others on to his land. We do not think that it is acceptable for you to come to us in 2018 and say that, although the owner was deemed to benefit in 1846, because he was gracious enough to let others on to his land, the owner of that land nowadays does not have to pay. We need to translate that and be very clear whether, in 2018, he benefits. If he benefits in any shape or form, in modern-day terms, he should therefore be included in the calculation. If we ignore the position in 1846, does he benefit or does he not in 2018? Is there a simple answer?

Jo Guest

In my view, looking at it practically, I would say that he does not. From the photographs, you can see that there is a 12-foot-deep rock channel that goes through—

Alison Harris

I see all that. I just want to hear from you—

Hugh Grierson

If we use the original plans and the definition is whether he benefits or not, then he is in.

Alison Harris

If that is the answer, you need to look at the calculation again, quite frankly.

The Convener

If I am correct, Mr Grierson’s opinion is that the owner of Dollerie has benefited and Mr Guest’s opinion is that he has not.

Hugh Grierson

I said that if we use the map from 1846 or 1848, as we intend to, by that definition he is in.

Mary Fee

I want to move on to the issue of increasing costs, because all the new work that will need to be done, such as the redrawing of plans, will add a substantial cost. Do you have a figure for how much that will cost?

Jonny Willett (Savills)

I can speak on behalf of Savills, which is undertaking the remapping exercise at no cost to the commissioners.

Mary Fee

There will be no additional cost to the heritors.

Jonny Willett

Not from Savills.

Mary Fee

What are the commissioners’ views? Will there be any additional cost to the heritors from the delay in processing the bill through Parliament? You have had to take legal advice.

Hugh Grierson

There will be some additional legal fees.

Mary Fee

Do you have any idea how much that will be?

Hugh Grierson

I would not like to give a figure that could be wrong, but it will be several thousand pounds.

Mary Fee

Is the counsel opinion included in that figure?

Hugh Grierson

Yes.

Mary Fee

I believe that the original intention was to allow a three-year period to collect all the moneys. Have you given thought to perhaps increasing that period?

Hugh Grierson

No—not at this stage. We still have a forward budget that suggests that we can be on track in three years. Obviously we have not reached the end of the process yet, but we are still on track.

Mary Fee

Is there a particular reason why Savills is doing the exercise at no cost?

Jonny Willett

We accept that there were errors in the original exercise to map the exact path of the 1846 plan. We are rectifying those errors by following the correct boundaries this time.

Mary Fee

When you did the original exercise, did you do any research or check whether that was the correct plan to use? We have heard about plans from 1846 and 1848, and now about one from 1851, and there might be other plans. What did you do to satisfy yourself that you were using the correct plan?

Jonny Willett

I apologise, but I was not involved in the original mapping exercise. A former colleague, who no longer works for Savills, undertook that exercise and used a photocopy of the 1846 plan and Mr Guest’s local knowledge and expertise.

Mary Fee

Another of the committee’s concerns is that Mr Symon seems to have had very little difficulty in finding additional plans, drawing different land plans and deciding who should and should not benefit—and it appears that he is not a heritor. I struggle to understand how Mr Symon was able to do all that research and find all those additional plans, yet the promoters of the bill were not. Do you have anything to reassure us that you are absolutely confident that you have not missed anything else? Is there any explanation as to why Mr Symon could find those plans and you could not?

Jo Guest

Mr Symon is an academic who has made a particular study of this sort of thing. He has plenty of time to devote to it. As he said himself when we met him, he is something of a perfectionist.

Hugh Grierson

We were unaware that we had to find these plans because, as a layperson, I did not understand the act well enough. We have taken steps this time to get someone else to interpret the act for us and get counsel to give us proper advice on exactly what the schedules are and how they all fit together, and to bring that to you so that we are certain this time that we are following the correct methodology and have turned up all the information that we need to find.

Mary Fee

Did you not take legal advice at the start of the process?

Hugh Grierson

We had lots of legal advice, but this seems to be the ultimate that we can do to make sure that it is right.

Mary Fee

Mr Guest made the point that Mr Symon is an academic and a bit of an expert. You have spent 20 to 30 years walking the pow, and you have a deep personal and professional interest in it, as does Mr Grierson. Do you not therefore consider yourselves to be experts on the pow?

Jo Guest

I think that I am a reasonable practical expert, but I am not an academic and I am not somebody who regularly looks at archive material in the national archives.

Mary Fee

You were undertaking a substantial exercise to update the 1846 legislation, so I would have thought that you would have made sure that you had every i dotted and every t crossed before you got to the point of proposing a piece of legislation. That would mean doing all your research ensuring that you were using the right plan and that there was nothing else there. I struggle to understand why you did not do that.

Jo Guest

When we started this exercise more than three years ago, we were looking to produce a workable, practical plan rather than something that was legally perfect. That was probably the misunderstanding.

Mary Fee

It has to be legally perfect to go through Parliament.

Jo Guest

Well, yes, but Parliament can adopt any plan and it is then legally perfect. It is the basis on which the plan is produced.

Mary Fee

It is about the evidence that you use.

Jonny Willett

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

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

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

Mary Fee

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

Jonny Willett

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

Alastair McKie

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

Mary Fee

When you said that you will look for Mr Symon’s input to ensure that the 1851 plan is the latest plan, I am keen to understand what work your firm will do to establish that. Surely you are not going to rely on Mr Symon, as he could say that there was a plan in 1871 or 1881.

11:45  



Jonny Willett

No we would not rely on that; we will do our own research, contact the National Archives of Scotland and do appropriate due diligence before we confirm the final version of this plan.

Mary Fee

The committee would like to see the evidence of how you have established that it is the latest version of the plan on which you will base any further work that you do.

Jonny Willett

Of course.

Mary Fee

How long will that take?

Jonny Willett

Considering that it was just this morning that we were told about the 1851 plan, we need to factor in some time to have sight of it. Following that, the mapping exercise will take no longer than four weeks.

Mary Fee

Finally, I am interested in the views of Mr Grierson, Mr Guest and, indeed, Mr McKie on this matter. Do you accept that this latest episode—that is probably the only word that I can use—and all the evidence that has come to light have damaged the credibility of the commissioners among the heritors?

Hugh Grierson

Yes, it must have done.

Mary Fee

What steps will you take to repair that damage?

Hugh Grierson

The first step is to get the map right—that is the most important thing. After that, I suppose that the step will be contact with people—a people process.

Mary Fee

Do you intend to set up meetings with all the heritors? How will you communicate the change in the plan and explain to them if there are any discrepancies in who benefits and who does not?

Hugh Grierson

We do not have a plan for that at present. We are obviously aware that we have to communicate with the people who will be affected. Another process will have to start.

Mary Fee

Surely you will need to communicate with all the heritors.

Hugh Grierson

Something definitely has to happen. We have not got that far or made that decision. I will take advice about the process that is required.

Mary Fee

Does Mr Guest have any additional comments?

Jo Guest

Not really, no.

Mary Fee

Does Mr McKie?

Alastair McKie

No.

Mary Fee

Okay.

The Convener

It will be very helpful for the committee to see a document that sets out the plan for how the commissioners intend to engage with the heritors. It will also be exceptionally helpful to see documented evidence of the approach that the commission intends to take to ensure that no other relevant documents have been overlooked in the process.

There is a great deal of work to do and it has to be thorough. We cannot risk getting to the end of the process, when another set of maps have been composed, and then discovering that additional maps have come to light. It is essential that the promoters bring forward evidence of how to ensure that that will not be the case.

I accept that this is the path that the promoters wish to go down. However, it seems incredibly complicated and fraught with risk. Have the promoters given any thought to producing a new, 2018 assessment using modern techniques and standards that everyone can have confidence in, rather than relying on documentation that is 160 or 170 years old and, potentially, other documents that may come to light.

Jo Guest

I have discussed that possibility with the chairman of the Association of Drainage Authorities, who told me that it provides from time to time a service to define the benefited areas for arterial watercourses for internal drainage boards in England and Wales. That is a possibility.

The Convener

It was suggested previously that the cost would be prohibitive. Is that still the view?

Jo Guest

I will see Mr Thomson tomorrow, and I could discuss that matter with him. The cost might not be prohibitive.

The Convener

That assessment could provide a complete and up-to-date picture of what land is benefited and what land is not benefited, and it could be produced using modern techniques and digitised. It could be easily accessible and, most important, all heritors could have confidence in it. Would that be the aspiration?

Hugh Grierson

I am still of the opinion that that would be very hard to achieve. We would have no basis to instruct someone on how to define the edge of benefited land. Anyone whom we appointed to do that would need a basis to work from, and the only basis that we could give them is the evidence from the past.

Jo Guest

I am meant to be seeing Mr Thomson, who is the chairman of the Association of Drainage Authorities, tomorrow. He happens to be up here. I have not met him before, and I was going to see him. When I have spoken to him on the phone, he has told me that the association provides that service to members.

The Convener

Would you be willing to write to the committee to share the outcomes of that meeting?

Jo Guest

Yes.

Alison Harris

You will know that a third of all heritors have expressed their unhappiness with the bill. What is your response to their submissions? In particular, they have raised the issue of residential heritors only being charged at a higher rate based on the footprint of their house and their gardens being charged at the same rate as fields. In addition, significant costs—

Jo Guest

The current proposal on the way in which residential properties would be assessed is that the notional area of their plot would be five times the footprint of the house, and there would be nothing on any surplus. Any surplus would be treated as amenity land, which, in effect, has a nil value.

Alison Harris

Okay.

Significant costs have been incurred so far in developing a bill that protects and represents the commissioners’ position. Is it reasonable for the commission to object on grounds of cost to doing a proper reassessment of the benefited land, which we have discussed? Should the aim not be to achieve a bill that is fair and acceptable to the residential heritors as well as to the farmers?

Jo Guest

We have always striven for that.

Hugh Grierson

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

Alison Harris

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

Hugh Grierson

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

Jo Guest

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

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

Alison Harris

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

There are two proposed rights of appeal—one for 10 or more heritors, and the other for individual heritors in circumstances in which the budget is £60,000 or greater. It is stated that the latter will be “index linked”. What index is being referred to? What index would be used?

Jo Guest

It would be the consumer prices index or the retail prices index.

Alison Harris

Which is it?

Jo Guest

I cannot remember which it is. Do you know, David?

David Nash

It was just a general proposal—a recognition that the figure would need to be index linked—but there was no final decision on which index it would be.

The Convener

Could you write to the committee and let us know whether it will be the RPI or the CPI? Thank you.

Alison Harris

The proposed amendment to the bill states that, if there is an appeal,

“the expert will decide what the budget should be”.

How will they do that, rather than only be able to assess whether the proposed work is necessary and the costs reasonable?

Jo Guest

One of the reasons that I am seeing Mr Thomson tomorrow is that ADA frequently provides experts to adjudicate in exactly these situations.

Alison Harris

So you are looking to find the expert.

Jo Guest

Yes.

Alison Harris

How will you know whether you will be paying a reasonable amount for a cleaning and repair contract if you do not test it in the market by getting quotes? I know that we have discussed the issue in the past, and I appreciate what you have said about the person who has been doing it historically having the economies of scale and being good at doing the job, but—

Jo Guest

We instruct contractors to do other works in other situations, so we are aware of what the hourly rates are for a man on an excavator and of the typical rates for cleaning ditches and so forth. We can see very quickly whether they are comparable.

Alison Harris

You can see that, but in light of the fact that a third of the heritors are unhappy with the process, do you see where I am coming from?

Jo Guest

I do.

Alison Harris

It might be helpful, not necessarily to put the work out to tender, but to seek quotes. That way, you could say to anyone who complained, “We are paying so-and-so X, but here are three quotes.”

Jo Guest

I do not like getting quotes from people if I know that they are not going to get the work. It does not seem fair.

Alison Harris

That is the system of quotes nowadays. Another quote might come in cheaper than that of the chap who is doing the job and win the work.

Jo Guest

The maintenance of the pow depends to a large extent on co-operation and the good will of all the farmers and owners through whose land it passes. Having somebody who knows them all, understands how they work and can organise the work to fit in with the operation of their farms is extremely helpful. If we parachute in somebody who just happens to be a cheap chap with a digger, who does not know anybody and does not understand how the farms work, it would be—

Alison Harris

My point is not that you should parachute in someone to undercut the person who does the work at the moment. My point is that you are now in a position where you are no longer dealing with just the farmers along the line; you are now dealing with 31 heritors who are extremely unhappy with the process. They might not have the farming background or the knowledge of how things work, and I appreciate that the process that you have described is probably how things work in farming. I feel that it would be appropriate for you to seek quotes so that you keep yourselves right in the eyes of those people and can turn round and say to them, “We’re paying him this, because it would cost that elsewhere.” That is my point.

Jo Guest

Yes. I do not know whether that is a matter for the bill or whether it is just good practice from the point of view of the surveyors.

Alison Harris

I certainly think that it is good practice.

Jo Guest

Yes.

12:00  



Mary Fee

The Manor Kingdom residents pay about a third of the total that is collected along the pow, and there is a proposal for one commissioner to represent them.

Jo Guest

It is two at the moment.

Mary Fee

Yes, or two. There has been a suggestion that, given that they pay a third, they should have three commissioners. Would you consider allowing the Manor Kingdom residents to have three commissioners?

Hugh Grierson

We think that two is sufficient. We started with a proposal for one, and the issue was drawn to our attention. With two commissioners, each section would then have two, which seems about the right place to be. The Manor Kingdom residents pay a third of the amount. Two seems about right.

Mary Fee

Would you consider having three?

Hugh Grierson

That would need other changes. We would need to look at the quorum again. When we moved from one to two, we looked at the quorum numbers. If we were to consider changing again, we would have to see what that would do to the group.

Mary Fee

When you say “we”, are you talking about the original commissioners?

Hugh Grierson

I presume so. I suppose that whether to propose another amendment is a decision for the commissioners.

Jo Guest

There will, I hope, be an initial rush of enthusiasm when the bill is enacted but, based on past experience, in the years ahead, I think that it might be a struggle to find three commissioners.

Mary Fee

I accept that you can say what has happened in the past, but you do not know what will happen in the future. It is clear that there is an interest among the residents of the Balgowan estate in becoming more involved. Surely from the point of view of increasing openness and transparency, it would be good to have more people involved. I believe that there is a Balgowan community group. Have you spoken to it?

Hugh Grierson

I have been to one of its meetings and have spoken to it. There was a residents association, which I believe relied on funding that is no longer in place. I think that the residents asked in their correspondence whether, if they got together another association, we would be interested in communicating with that, and the answer is that, yes, we would.

Mary Fee

In the past, have they been fairly active?

Hugh Grierson

They were briefly very active for a year or so, but I think that they are not so active now.

Mary Fee

Thank you.

The Convener

I have a general question about engagement. Has any progress been made regarding the website and other means of communication?

Hugh Grierson

No. We are not looking to tackle that until after the bill is enacted and we have some money.

The Convener

Okay—I appreciate that.

Jo Guest

Is there not also a data protection issue? That issue arose when we discussed having a requirement in the bill for us to publish information on a website, which would enable us to be totally transparent.

The Convener

I was not suggesting a website in that form were the bill to be enacted; I was simply talking about a means of keeping heritors and people who are affected up to date.

Jo Guest

I think that that would be a good thing, and it would simplify the administration.

The Convener

I was just talking about on-going communication throughout the bill process, which we have discussed previously.

We have touched on the issue of waste water treatment and double charging. You might have touched on this already, but will you confirm for the record your understanding of who owns the waste water treatment works?

Jo Guest

I think that they still belong to the successors to Manor Kingdom. Who is that, Shirley?

Shirley Davidson (McCash & Hunter)

Avant Homes.

Jo Guest

I think that all the amenity land in the Manor Kingdom development, including that treatment works, belongs to Avant Homes, which has taken over from—

Shirley Davidson

Manor Kingdom.

Jo Guest

Yes.

Shirley Davidson

Well, it is Manor Kingdom, which has changed its name to Avant Homes.

The Convener

That concludes questioning from the committee. Would the promoters like to make a concluding statement or any final remarks?

Alastair McKie

We have none.

The Convener

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

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

12:05 Meeting suspended.  



12:06 On resuming—  



The Convener

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

Members indicated agreement.

The Convener

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

Meeting closed at 12:07.  



Fourth meeting on amendments

 
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Fourth meeting on amendments transcript

The Convener (Tom Arthur)

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

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

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

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

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

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

Alison Harris (Central Scotland) (Con)

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

Mary Fee (West Scotland) (Lab)

It is a sensible approach.

The Convener

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

Members indicated agreement.

The Convener

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

Members indicated agreement.

The Convener

On the Dollerie lands issue, my opinion is that it is not for the committee but for the promoters to make a determination in that respect. Do members wish to comment?

Alison Harris

I think that your opinion is absolutely correct, convener, and I agree with it.

Mary Fee

Indeed.

The Convener

Do members have any views on the promoters’ willingness to allow for three Balgowan section commissioners?

Mary Fee

It is a sensible way forward and, in any case, it is what the residents had asked for. It is a good approach.

The Convener

It certainly represents progress.

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

Mary Fee

I agree with the approach.

Alison Harris

As do I.

The Convener

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

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

Meeting closed at 10:09.  



Fifth meeting on amendments

 
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Fifth meeting on amendments transcript

The Convener (Tom Arthur)

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

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

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

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

Are members content with that approach?

Members indicated agreement.

The Convener

Are there any other matters that members wish to raise?

Mary Fee (West Scotland) (Lab)

I am grateful to the commissioners for submitting the new land plans and the report. The only issue that I would like to raise is that of the land at Dollerie. The committee will know that there has been a long-standing exemption from payment for the owners of Dollerie, dating back to 1847, and I understand from the report that, at a meeting of the commissioners, they decided that Dollerie should no longer continue to be exempt from the annual assessment. I would be grateful if the committee could request more information from the commissioners to inform us about how that decision was reached, whether there is any evidence of the previous agreement and how that will be taken forward. I am asking for that mostly to inform the committee, for completeness when we are writing our report.

The Convener

Are there any objections to that?

Alison Harris (Central Scotland) (Con)

I have no objection. I agree that that should be done.

The Convener

Okay—the committee will do as Mary Fee suggested.

That concludes our business for this morning. The clerks will communicate the outcome of the meeting to the promoters. The next meeting of the committee will be on Wednesday 23 May 2018 at 10 am, to consider the objections to the bill and a draft consideration stage report.

Meeting closed at 10:07.  



Sixth meeting on amendments

 
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Sixth meeting on amendments transcript

The Convener (Tom Arthur)

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

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

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

Alison Harris (Central Scotland) (Con)

Amendment 9 meets the test.

Mary Fee (West Scotland) (Lab)

I agree.

The Convener

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

Mary Fee

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

Alison Harris

I agree.

The Convener

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

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

Alison Harris

Yes, I agree that that is the case.

The Convener

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

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

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

Alison Harris

That seems fair.

Mary Fee

It is a sensible approach, convener.

The Convener

Okay. We are content with that approach.

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

Mary Fee

I agree that we should do that.

Alison Harris

I agree.

The Convener

Okay.

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

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

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

Meeting closed at 10:03.  



Seventh meeting on amendments

 
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Seventh meeting on amendments transcript

The Convener (Tom Arthur)

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

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

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

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

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

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

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

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

Mr Watkins (Objector)

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

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

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

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

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

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

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

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

Alastair McKie (Anderson Strathern)

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

Mrs Watkins (Objector)

We got it very recently.

The Convener

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

Mr Watkins

No. We just have this copy.

The Convener

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

10:15 Meeting suspended.  



10:31 On resuming—  



The Convener

I invite Mr Watkins to continue.

Mr Watkins

I apologise for the delay.

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

“The evidence still remains largely underground”

and concludes that

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

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

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

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

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

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

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

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

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

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

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

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

Thank you for your attention.

The Convener

Thank you, Mr Watkins. I invite the promoter to cross-examine Mr Watkins, both on his statement and more generally on the objection raised.

Alastair McKie

Good morning, Mr and Mrs Watkins. Thank you for your submission. Can you confirm that I have understood correctly that you do not object to the principle of payment in terms of the assessment?

Mr Watkins

No, not at all.

Alastair McKie

This is a dispute about the area of assessment from which is derived the annual assessment.

Mr Watkins

Yes.

Alastair McKie

Your position is that the actual area that should be assessed by the commissioners as the benefited area is 0.247 acres.

Mr Watkins

Yes—0.1 hectares.

Alastair McKie

And that 0.1 hectares derives from your planning permission.

Mr Watkins

Yes.

Alastair McKie

As opposed to the commissioners’ assessment, which is 0.855 acres.

Mr Watkins

Absolutely.

Alastair McKie

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

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

Mr Watkins

Yes.

Mrs Watkins

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

Alastair McKie

That is understood.

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

“causes or permits to be executed any works”

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

Mr Watkins

It is.

Alastair McKie

And that is how the system of control operates.

Mr Watkins

Yes.

Alastair McKie

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

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

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

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

On the next page, we see a map or plan that goes with the entry, which shows two areas outlined in red; they represent the area of the scheduled ancient monument, to which the level of high control or restriction has effect. I think that your house was built in the south-east corner, just outwith the area outlined on the left-hand side.

Mr Watkins

Yes.

Alastair McKie

So the house is outwith, but quite close to, the scheduled ancient monument area. Your garden—or the area of land that goes with your house—extends into the scheduled ancient monument area.

Mr Watkins

Yes. It sort of goes around the scheduled ancient monument.

Alastair McKie

The next document that I will turn to is the planning permission that you have lodged. It is an outline planning permission dated 2 September 1986, and it is for planning permission

“in principle for the erection of a dwellinghouse at Abbey Bridge”,

which ultimately became your house.

Mr Watkins

Yes.

Alastair McKie

Your case is based on condition 4 of the planning permission, which says:

“The house site shall be restricted to 0.1 hectare to the satisfaction of the District Council as Planning Authority.”

Am I right in understanding that it is that 0.1 hectares from which your 0.247 acres derives?

Mr Watkins

Yes.

Alastair McKie

That is the imperial measurement of that metric.

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

Mr Watkins

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

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

10:45  



Alastair McKie

I understand where you are coming from. Would you accept that the area of the house and garden that you currently enjoy is greater than 0.1 hectares—or 0.247 acres?

Mr Watkins

The whole thing is 2.3 acres.

Mrs Watkins

But we are restricted. The valuation that you have given us is based on the value of residential land—development land. We feel that the value of the land that you are suggesting—the £300,000 price—is based on figures for development land, but we cannot develop the garden. The whole lot is not residential; it is amenity land.

Alastair McKie

Okay. We may return to the garden size when we go through the documents, but would you agree with me that the expression “house site” does not seem to exclude the garden ground that goes with your house?

Mr Watkins

I think that the “house site” should include the garden and the access.

Alastair McKie

You think that it should include the garden and the access.

Mr Watkins

I think so.

Alastair McKie

That is very fair of you.

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

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

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

Mrs Watkins

I think it does.

Alastair McKie

It says that it shall be used “for residential purposes only”. Is it not placing the restriction on the use for “agricultural or industrial development”?

Mr Watkins

I think it should say the “house site”. They refer to the “site” and we would interpret the site as being the “house site”—the 0.1 hectares.

Alastair McKie

You might choose to interpret it like that, but it could be interpreted in other ways.

Mr Watkins

It could be.

Alastair McKie

That is fair of you.

On the next page of the planning permission document we have the reasons, which seem to be highlighted in the earlier photocopy. Reasons 4 to 7 are

“In the interests of amenity and ... to protect the setting of”

the abbey as a “category B listed building” and a scheduled ancient monument.

If we move on, document 4 is an aerial photograph of your house and garden, including the abbey as well, is it not?

Mr Watkins

Yes.

Alastair McKie

I have some questions about it. There appear to be some buildings, which are built away from your house in what looks as though it is your garden.

Mrs Watkins

Yes, they are wooden sheds and a greenhouse. I have a greenhouse and a wooden shed.

Mr Watkins

And I have a workshop, built on a concrete plinth that, I gather, has been there since the last war. I was going to say that it is north of the greenhouse, but it is actually just to the east of it.

Alastair McKie

Can I just be clear about which is which?

Mr Watkins

The trapezium-shaped area is the veg plot.

Alastair McKie

That is the veg plot. Is that what the Historic Scotland letter refers to?

Mr Watkins

Yes. That is the veg plot, which was not in the scheduled area at the time, so the pink bit on your—

Alastair McKie

I will come to that in a moment. So, you have a greenhouse here. Was that a polytunnel before?

Mr Watkins

No, we never had a polytunnel. Because Historic Scotland wanted us to have another archaeological watching brief, we decided that a greenhouse that was just placed on top of the earth was better.

Alastair McKie

Right, so the greenhouse is just placed on there. Then there is another building.

Mr Watkins

That is my workshop.

Mrs Watkins

That is on the concrete plinth.

Alastair McKie

There is another building to the left of that.

Mrs Watkins

That is the wooden shed.

Alastair McKie

And there seems to be another.

Mr Watkins

That is another wooden shed.

Alastair McKie

So, you are using the areas here in association with your house—you must be.

Mr Watkins

Yes.

Alastair McKie

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

Mr Watkins

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

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

Alastair McKie

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

Mr Watkins

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

Alastair McKie

I do not think that we need to trouble you with document 6, but I would like to turn to document 7, which you made a reference to.

Obviously, you have looked at this document before, but perhaps, for the purposes of our conversation, we can have a discussion about it.

Mr Watkins

Which one is it?

Alastair McKie

It is the one with pink, yellow and blue areas on it.

Mr Watkins

I have got it.

Alastair McKie

The area that is coloured yellow is excluded from the assessment, because it is owned by the Earl of Kinnoull. It is identified as amenity land because it is the core of the abbey. The area that is coloured pink is the area that I understand to be the area of the scheduled ancient monument, overlaid on top of your property.

Mr Watkins

The pink area is not correct.

Alastair McKie

Can you explain to me what—

Mr Watkins

I have drawn on this paper before me what I think that the correct area is. Do you want to have a look at it?

Alastair McKie

If I can, yes.

The Convener

That means that we will have to suspend briefly.

10:52 Meeting suspended.  



10:58 On resuming—  



The Convener

I invite Mr Watkins to continue.

Mr Watkins

I am not quite sure where we were.

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

Alastair McKie

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

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

Mr Watkins

Yes. It shows the scheduled area.

Alastair McKie

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

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

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

Mr Watkins

I do not think so.

11:00  



Alastair McKie

If you have the promoter’s plan number 7 before you, you can see the area that is coloured blue.

Mr Watkins

Yes.

Alastair McKie

If you were to follow the logic of this plan, which is basically to allocate your garden area—I use that in its widest sense, because I know that we are disputing that—

Mr Watkins

The blue would cover most of the vegetable plot.

Alastair McKie

It is quite hard to pick that up. If you look at the triangle between—

Let me start again. What the promoter is trying to do is to take the area that you own, remove the area that is owned by the Earl of Kinnoull, which is the yellow area, so that, in so far as your area, in its widest sense, is affected by the scheduling, that is excluded from the assessment.

Mr Watkins

Yes.

Alastair McKie

What you have done is redraw the boundary of the scheduled ancient monument—you think that you have done that in the interests of accuracy; that perhaps needs to be looked at. In doing so, you have included an additional area, have you not?

Mr Watkins

The veg plot?

Alastair McKie

On this plan here—

Mr Watkins

I am including that area to the left.

Alastair McKie

But you are saying that the dotted red line is the line of the scheduling.

Mr Watkins

Yes.

Alastair McKie

I think that we are in agreement on that.

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

Mr Watkins

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

Alastair McKie

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

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

Mrs Watkins

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

Alastair McKie

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

Mary Fee (West Scotland) (Lab)

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

Mr Watkins

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

Mary Fee

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

Mr Watkins

I have tried to triangulate this, yes.

Mary Fee

I understand now. Thank you.

Alastair McKie

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

If the committee were to accept that your house should be 0.247 acres, what would that represent in terms of your assessment? In the schedule in document 8, Inchaffray abbey is shown as £440.78—I know that there is some dispute about the amount of pence, but I am told that that is something to do with rounding up on the Excel spreadsheet. That £440 is based on a site area of 0.855 acres. Would you agree that, if your house were 0.247 acres, the assessment would be around £140 or £150, because it would be almost less than a third of the greater area?

Mr Watkins

We would be happier with an assessment of around £200, or maybe a bit more, because we also have to pay VAT, which we cannot claim back, and we have to pay £280 a year to have the septic tank emptied.

Alastair McKie

Where does your septic tank drain into?

Mr Watkins

Into the pow.

Alastair McKie

Okay. I have no further questions.

The Convener

Do the promoters wish to make any further points with regards to the objection?

Alastair McKie

I have no further submission on that.

The Convener

I invite Mr and Mrs Watkins to cross-examine the promoters on what they said about their objection, today and more generally.

Mrs Watkins

We feel that there may be a conflict of interest on two fronts with regard to the bill, as all the commissioners are farmers and there does not seem to have been any residential input. Also, the land valuation and mapping have been performed by Savills, of which Jo Guest is a director. In that regard, and in relation to the valuation, we feel that there is a conflict of interest.

Alastair McKie

That is not accepted, but I invite Mr Guest to answer for Savills in that matter.

Mr Watkins

We talked to several estate agents and came to the conclusion that the valuation was extremely high in this case.

Jonathan Guest (Pow of Inchaffray Commissioner)

The starting point of our approach to the evaluation of residential property and the other categories of property was that, instead of valuing each property individually, we wanted to categorise the properties into the different types of land use. Therefore, farmland is broken down into the different grades of farmland, referring to the Macaulay land use research institute, and there is also residential property, forestry and commercial property. We wanted to end up with bands of values for each category of property so that the calculation of the individual assessment would be a mechanical process. The idea behind that was that it would then be simple and easy to review, because the bill includes a proposal for the land to be revalued every 10 years, or when there is a material change of use.

For example, we have not valued the agricultural land on a field-by-field basis. Instead, we have said that the value of class 3.1 land is something like £6,000 an acre—I cannot remember the exact figure now. We have not gone around valuing each individual field; we have simply taken that as the value for that category of land. Similarly, with regard to residential property, we have not looked at the different house types. There is a range of house types in the benefited area. There are small houses, semi-detached houses and detached houses on the Balgowan estate, and there are cottages, larger detached houses, houses with big gardens and so on. Instead of looking at them individually, we have lumped them together and arrived at the global figure for residential development land.

Those values were arrived at by me, in discussion with the specialist departments at Savills that deal with all the different types of property.

Mrs Watkins

Did you not think that you should have gone outwith Savills? Given that you were bringing forward the bill, did you not think that you should have taken a wider view and consulted other—independent—estate agents?

Jonathan Guest

I suppose that one could have done that but, as you understand, the commission has a limited budget that is raised from the heritors, and we were looking to do this as economically as possible. Employing another firm would have been another expense.

With regard to how the values were arrived at, Savills has specialist departments dealing with each category of property. I do not profess to be an expert on every category of property, so I discussed the issue with individuals in all the relevant departments. It was on the basis of those discussions that the figures were arrived at.

Mr Watkins

We would like to know how residential property has been defined.

Jonathan Guest

In the course of the progress of the bill, two alternative bases have been looked at. The initial basis was that we would look at the plot on which the house was built from the point of view that that land could be developed for residential purposes because of the benefit provided by the pow and the pow commission. We closed our eyes to the type of house that was on each plot of land, because the pow commission did not build houses; all that it did was enable the land to be developed for housing. In effect, therefore, we looked at undeveloped building land. The approach was to measure the size of the plots on which those houses sit and then multiply that by a figure for residential development land in the area.

The committee expressed concern that that approach might be too broad brush, and that it might disadvantage people with larger houses. We were therefore invited to come up with an alternative, which we did. That alternative approach involved not measuring the plot but looking at the footprint of the house and multiplying it by five—I think that we came up with a five-times multiplier. That would give the notional plot area.

Mr Watkins

I see that in our spreadsheet. I would call that the older method. From our point of view, that would seem to be a better method.

Jonathan Guest

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

Mr Watkins

I am sort of getting away from that, really.

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

Jonathan Guest

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

Mr Watkins

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

Jonathan Guest

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

11:15  



Hugh Grierson (Pow of Inchaffray Commissioner)

I think that all farmhouses would be classed as residential; none is classed as agricultural—

Mr Watkins

They do not appear on the residential—

Jonathan Guest

There are no farmhouses, because they are not on the benefited land.

Mr Watkins

So none of them is on the benefited land.

Jonathan Guest

No. Before 1846, people did not build their houses on boggy land—they built them on the edge—so they were not on the soft land that has benefited from the work on the pow.

Mr Watkins

I understand that, as my poor workshop is dropping to bits because it is too near the pow. Anyway—there we are.

If we are unhappy with the outcome of today’s meeting, will there be a mechanism for appealing against the decision?

Jonathan Guest

Which decision?

Mr Watkins

The decision on what we will have to pay for drainage.

Jonathan Guest

It is for the committee to advise on that, but I understand that we are interested not so much in the number as in the method—the approach to defining benefited land, which must be logical. To be honest, we are blind to the figures; we are concerned with the process.

Mr Watkins

That is all that we have to ask.

The Convener

Before we move to closing remarks, I ask the promoters whether they envisage any further amendments or redrawings of the land plans that have been submitted.

Jonathan Guest

I hope not.

Hugh Grierson

Possibly, but only to accommodate Mr Watkins’s concern about the historic area.

Alastair McKie

That would not involve a land plan; that would involve just a change in classification. There are no additional land plans or replacements. If an adjustment was required because of what we have heard today, that would mean a change in classification of the land—it would still be benefited land, but it would be classified as residential or amenity.

The Convener

Mr McKie has anticipated my next question. Do the promoters envisage further adjustments to classification?

Alastair McKie

If the boundary of the scheduled ancient monument is as described by Mr Watkins, as opposed to the promoters’ interpretation from the scheduled plan, there might be a nuanced adjustment. That might change the area from 0.855 acres to a bit more than that, or the area might reduce after a final check. However, we are fairly confident that we have lodged the right plan.

The Convener

We move to brief closing remarks.

Mr Watkins

The committee can probably tell that we are unhappy with the potential 60 per cent increase in the annual fee for the pow, given that nothing much has changed—in fact, we probably produce less waste water, because our son no longer lives at home.

Mrs Watkins

If and when we decide to sell our house, we will have to declare the fee, which will probably discourage possible purchasers.

Mr Watkins

That is all that we have to say.

Alastair McKie

There is no dispute on the principle of payment; the dispute is about the area of assessment. The commissioners have treated the objectors, Mr and Mrs Watkins, fairly and reasonably in terms of the level of assessment and what should apply to their property.

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

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

The promoters’ proposal is that the area of assessment, which we are discussing, should be the area that is coloured blue on plan 7, subject to whatever adjustment might derive from a final measurement of exactly where the scheduled ancient monument applies.

The Convener

On the committee’s behalf, I thank Mr and Mrs Watkins and the promoters and their representatives for attending the meeting.

I suspend the meeting to allow a change of objectors.

11:21 Meeting suspended.  



11:36 On resuming—  



The Convener

We recommence proceedings and again I encourage all speakers to be as concise as possible. I invite Mr Macgregor to set out the points that he wishes to make regarding his objection.

Mr Ian Macgregor (Objector)

Good morning, convener, ladies and gentlemen. I will keep this brief, because I think that it gets to my point without too much argument.

I have already submitted my objection, which I take it that you have all read. I do not accept the assumption that our house at Nethermains of Gorthy was built on so-called benefited land, for the reasons that were outlined in Mr Tait’s submission, to which I referred in my initial objection.

Mr Tait is a retired civil engineer—a company director who specialised in water supplies and drainage systems—and his detailed findings concluded that the level of benefited land on the south of the pow, opposite Nethermains of Gorthy, is determined at an altitude of 39.05m. The boundary fence of my property lies at 39.4m, and my property lies slightly higher than that if we take the property to include the house and not the garden.

Since the pow and the altitude of benefited land are common to both north and south, I fail to see why the north side should be treated any differently from the south. Therefore, I totally reject the assertion that my property should be included on benefited land. Furthermore, the level of benefited land on the south seems to have been meticulously defined, running almost in line with the 40m contour on the original plans. However, on the north side, it appears just to run along boundaries in straight lines.

As already mentioned, properties dating back pre-1846 were deemed not to have been built on benefited land. I question the close proximity of my property to that of my neighbours—the Steading, owned by Mr and Mrs Tait—which was built prior to 1846. The Steading is merely 170mm higher than the level of my boundary fence. That indicates to me that my property does not lie on benefited land. That is all that I have to say.

The Convener

Thank you very much, Mr Macgregor. I now invite the promoters to cross-examine Mr Macgregor on the points that he has made today and more generally with regard to his objection.

Alastair McKie

Good morning, Mr Macgregor. Do you have before you the pack of papers, which starts with the Pow of Inchaffray Drainage Commission (Scotland) Bill? There are 15 documents attached to that.

Mr Macgregor

Yes.

Alastair McKie

Can you turn first to document 8, which is a schedule in A3?

Mr Macgregor

Yes.

Alastair McKie

You will see that there is a list of properties in the left-hand column. You are in property 13, Centre Cottage. Is that correct?

Mr Macgregor

That is correct.

Alastair McKie

If we move along the line, we see that the annual assessment proposed for a £20,000 budget is £118.57.

Mr Macgregor

That is correct.

Alastair McKie

I just wanted to clarify that with you.

Your principal contention, Mr Macgregor, is that your property—Centre Cottage at Nethermains of Gorthy—is not constructed on benefited land and that, therefore, no money should be payable. Is that your big point?

Mr Macgregor

Yes.

Alastair McKie

I ask you to turn to document 9, which is a fair copy excerpt of the 1850 plan that accompanied the Pow of Inchaffray Drainage Act 1846. On it, we can see some properties that are coloured pink. They are described on the map as West Mains, but are they now known as the Steading that you talked about?

Mr Macgregor

That is now known as the Steading.

Alastair McKie

Where in proximity to the Steading is your property constructed?

Mr Macgregor

It is south of that, below the line. If you look at the map, there appears to be a crack or double line running to the left of the letter “e” in “West”. My property is on that line.

Alastair McKie

So it is south of the double line. There are two other cottages beside your property, are there not?

Mr Macgregor

There are.

Alastair McKie

If we move down into what looks like an enclosure or field, we will see a number that I think—or which I have been told—is 130. Do you see that plot number?

Mr Macgregor

Yes.

Alastair McKie

And you will see beside that a plot 122, which is in a different area. Can we agree that your house is built on what is identified on the 1850 map as plot 130?

Mr Macgregor

I can only assume so, without actually seeing the property on the map that I have.

Alastair McKie

That is fine.

Before we move on, can you identify on the 1850 plan where the Carse Mile burn or the Downie burn is? There seems to be some dispute.

Mr Macgregor

If you look at the “e” of West Mains, you will see a faint double line that is coloured a faint blue.

Alastair McKie

I can see that.

Mr Macgregor

At the “s”, there is another double line that bends down the hill.

Alastair McKie

I see that, too. There are two burns that converge.

Mr Macgregor

They come together. The one that is coloured blue is the Downie burn, and the one that is not coloured—the one that is white—is referred to as the Carsehead Mill or Mile. There are three different names for the burn. These two converge some distance further down at the bottom of the field.

Alastair McKie

What do they drain into?

Mr Macgregor

Ultimately, the pow.

Alastair McKie

Thank you.

Mr Macgregor

If you refer to plan 10—

Alastair McKie

I am just getting to that.

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

Mr Macgregor

That is correct.

Alastair McKie

So they must have been built subsequent to that.

Mr Macgregor

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

Alastair McKie

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

Going back to plan 10, which is the 1864 plan, we see near enough in the centre a property described as “Nether Mains”, and I think that we can see the Steading, which is a kind of C-shape.

Mr Macgregor

That is correct.

Alastair McKie

I think that we saw that in plan 9. However, we also see some new properties that look to me to have been built immediately to the south of that.

Mr Macgregor

I would say “property”. There is only one.

Alastair McKie

Which one do you think it is?

Mr Macgregor

That is mine.

Alastair McKie

That is your property. On the basis of the 1864 plan, we can say that it had certainly been built by 1864.

Mr Macgregor

Without a doubt—it is on the map.

Alastair McKie

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

11:45  



Mr Macgregor

Yes. Although this map is printed, it is quite unclear. On the map, the Downie burn is on the “t” of Nether Mains and the Carsehead Mill burn is between the “h” and “e” of Nether. The burns join further down the field—you can see the line that comes across. Dating back to maps that I do not have with me, unfortunately, the Downie burn extended and still extends 4 miles further up the hill to Fowlis Wester—that is where it originates—and it comes all the way down the hill. I do not know why it changes its name where the two watercourses—natural and man made—join. A previous map, which I do not have, said Downie burn, but it had been made opaque.

Alastair McKie

So there is some doubt about what they are called, but it is not in doubt that they both drain into the pow.

Mr Macgregor

Correct, but what I question is that one is man made and one is natural.

Alastair McKie

Going back to plan 9, it looks as though the burns are very straight and have been altered to be in a dead straight line.

Mr Macgregor

If you were to visit and see them in the flesh, you would take a different view for a simple reason, which was referred to in Mr Tait’s submission. Looking at the plan, the Downie burn is on the left and the Carsehead burn is on the right. The Carsehead burn is about two feet deeper than the Downie burn, yet they are only a couple of feet apart, so it is obvious that one is man made and the other is not.

Alastair McKie

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

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

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

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

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

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

Counsel also talks about

“a further area of land at Millhill”

and goes on to say:

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

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

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

Mr Macgregor

Can I just add something?

Alastair McKie

Yes, by all means.

Mr Macgregor

It says:

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

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

Alastair McKie

I am not in a position to answer that.

Mr Macgregor

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

Alastair McKie

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

Please turn to plan or document 12, which is described as the “Burn Map” from 1846. A series of surveys were undertaken prior to the pow works in 1846 and this is an excerpt of a map showing where improvements to the pow and its tributaries were undertaken in your area. If we look at this map, we can see West Mains, the C-shaped steading that we saw on the 1850 plan. Would you agree that we can see no identification of Centre Cottage or any other cottages on the plan?

Mr Macgregor

I cannot argue with that.

Alastair McKie

Can you see the dotted lines that march on either side of the Carsemile burn and the Downie burn?

Mr Macgregor

Yes.

Alastair McKie

I am advised that those are showing evidence of spoil. They are annotated

“limit for deposit of spoil”.

Would you agree that that indicates powerfully that works were carried out in 1846 in relation to the Carsehead Mile burn and the Downie burn?

Mr Macgregor

It is all about interpretation. I am not a civil engineer or anything, but if I look at that map and think of someone digging out the burn marked in pink, where are they going to deposit the soil? On the right-hand side of the pink burn. However, where are they going to deposit the soil on the left-hand side? It has to be on the left-hand side of the blue burn. That does not necessarily mean that the blue burn has been dug out. If you were to dump the soil from the pink burn into the blue one, you would cause a dam. So, I do not follow or agree with what you have said.

Alastair McKie

Be that as it may, the dotted line on the surveyors’ plan talks about the estimated line of the spoil—that is what the annotation says. Just from looking at the Carsemile burn—the area coloured blue—is there anything about it that strikes you as unusual?

Mr Macgregor

In terms of what?

Alastair McKie

In terms of it being in a dead straight line.

Mr Macgregor

No.

Alastair McKie

Do you think that that is a natural feature or more likely to be an artificial feature?

Mr Macgregor

Natural, 100 per cent. I state once again that you need physically to see it—to have a walk down there and see the trees that are there. I am not a tree surgeon or professional tree man, but those trees are big. I would say that they are well over 100 years old, maybe 150; I do not know. The roots from those trees are visible in the blue burn all the way down. They have not been cut off or excavated; there are bare roots lying in the burn. Why would the straight line not be a natural thing, given that the tree roots are still there?

Alastair McKie

Because nature does not tend to do things in a dead straight line. That is my assumption.

We can see field enclosure 130 on the plan as well, in the field where your house is yet to be built. It has a dotted line going through it. Can you see that?

Mr Macgregor

Yes.

Alastair McKie

Can we move on to the next plan, document 13, which is a surveyors’ plan? It is a fair copy of a surveyors’ plan that was executed in 1940. The areas that are outlined in red are where the pow commissioners have been involved in executing works. Would you agree that the leftmost red line is going roughly along the line of the Carsehead Mile burn?

Mr Macgregor

Roughly, yes.

Alastair McKie

Would you agree that, if this is a copy of a 1940 plan that depicts where works have been carried out, it is pretty clear that the commissioners have been undertaking work in that general area?

Mr Macgregor

I could not comment on that. Looking at a map—just looking at a line on a bit of paper—it is hard to say whether work has been carried out or not.

Alastair McKie

Okay, but do you appreciate that, since there is a red line on the map, it has some significance?

Mr Macgregor

No.

Alastair McKie

Right.

Mr Macgregor

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

The one that Mr Tait pointed out—

Alastair McKie

We are dealing with this map just now. Mr Willet is not in this conversation.

Mr Macgregor

Mistakes have been made, so I cannot agree with what you have said.

Alastair McKie

You are not in agreement, but you are not in a position to deny that this is a 1940 plan showing a red line where the commissioners have carried out work.

Mr Macgregor

It is what it is. It is a 1940 plan.

Alastair McKie

Turning to the next page of the document, and to plan 14 of the land plans that accompany the bill, which is entitled “Middle Section Part 1 of 2”, we can see near the centre of the page the Carse Mile burn and the red line that shows where the commissioners executed works.

Mr Macgregor

But, looking at the map again, if you refer to the Carsehead Mile burn and then carry on north of my property and Nethermains of Gorthy, it is referred to as the Downie burn, which was man made. If you continue northwards, why is there such a meander in it?

Alastair McKie

Is it not possible that works were carried out in the section where it is straight and not carried out where it meanders?

Mr Macgregor

Not when you look at the tree roots in it, I am afraid. No work has been carried out on that burn for years and years. Unless you came and walked down it, you would not be able to appreciate what I am saying. I do not see what that has to do with my house being benefited land or not.

Alastair McKie

We will come to that in a moment. You will have a chance to ask questions of the promoters.

Mr Macgregor

Okay—sorry.

Alastair McKie

Please have before you document 15A; documents 15A and 15B are the last of the documents. I might need to explain a little about how this works. When the works were carried out in 1846, an initial survey was done beforehand to take account of the value of the land at that stage. Once the works were completed, the increase in value was calculated, which showed the extent to which the land had been improved by the pow works. It is that improvement to the land that creates what we describe as “benefited land”.

Documents 15A and 15B are two pages that go together. They are shown separately just because of the way in which they have been copied. Document 15A is a statement of the increase in value of the land after the works had been completed. If you scroll down to the plot numbers on that document, you will see—five up from the bottom—plot 130. Can you see that?

Mr Macgregor

Yes.

Alastair McKie

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

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

I have no further questions, convener.

The Convener

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

Alastair McKie

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

12:00  



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

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

That is a document from 1984. As I put to Mr Macgregor, the assumption—it was some time ago—is that the land and the cottage were assessed as one and, when they were separated, no assessment was sought for the cottage. It was just taken from the farm and it has been slightly lost in the aeons of time. As a result of the new assessment record, which tried to be as faithful as it could to the original benefited land, it is beyond doubt that Mr Macgregor’s cottage and the two other cottages are on benefited land.

The Convener

Before moving on, there are two points that I wish to clarify. Is maintenance work still undertaken by the commission on the watercourses of Carsehead Mile burn and Downie burn?

Jonathan Guest

There are a number of side ditches on the pow that were burns—they are still called burns. The Cowgask burn is one of the principal side ditches and, as its name implies, it is a burn that has been improved and straightened and on which the commission carries out works from time to time. There is another called the Jessie burn, which comes in at Balgowan, and another, which comes in at Drumphin, called the Drumphin burn. There is a series of side ditches that are natural watercourses and have been improved, and for which the commission has responsibility.

We inspect the pow twice a year and the surveyor writes a report on the condition of all the side ditches for which the commission is responsible, which include the ones that I mentioned, and on whether work needs to be done. Work is done on some of them more frequently than on others. I have to confess that there has not been much work done on the Carsehead Mile burn for some considerable time and there has been no work done on the Drumphin or Jessie burns for years. Burns with a flatter gradient tend to silt up, so work is done more often on them. For instance, we clean out the Cowgask burn fairly regularly.

The fact that we have not done much work there in recent years does not take away the fact that the commission is still responsible and has a maintenance obligation. If it was brought to our attention that a bank had collapsed or a tree had fallen across a burn, we would have to deal with it.

The Convener

I appreciate the clarification. I have a further point. In terms of benefited land, there are properties that could be categorised as directly benefiting from the pow, as they drain directly into it, and others that we could categorise as indirectly benefiting, as they drain into tributaries that subsequently join the pow. Are you aware of any properties that benefit indirectly—they might drain into a tributary burn further upstream—but are not on benefited land?

Jonathan Guest

There might be properties that drain into the side ditch but are beyond the area for which the commission is responsible for maintenance.

The Convener

Thank you for clarifying. I now invite Mr Macgregor to cross-examine the promoters on the points that he raised and more generally.

Mr Macgregor

Please have a look at the document that I gave out earlier. It refers to three lots: lots 1, 2 and 3. Lot 2 is the one with the outgoing of

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

Lot 3 is the cottage that is

“located between the farmhouse and a separately owned property known as BURNSIDE COTTAGE.”

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

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

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

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

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

The Convener

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

I invite Mr Macgregor to make any closing remarks.

Mr Macgregor

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

The Convener

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

Alastair McKie

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

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

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

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

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

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

The Convener

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

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

The committee will now move into private session.

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



Eight meeting on amendments

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Eight meeting on amendments transcript

The Convener (Tom Arthur)

Good morning and welcome to the seventh meeting in 2018 of the Pow of Inchaffray Drainage Commission (Scotland) Bill Committee. The first item on our agenda is to consider the merits of the two objections that were lodged on amendment 9 to the bill. Evidence on the objections was taken at our meeting on 12 September 2018.

We will now consider the merits of each objection on the evidence that we have heard and received to date. Although the committee is required to consider the merits of objections, it is optional for it to accept or reject them.

The first objection that we will consider is that of Mr and Mrs Watkins. I invite members of the committee to share their views.

Mary Fee (West Scotland) (Lab)

Mr and Mrs Watkins’s objection contained five reasons for objection. The promoters have accepted the first two parts of the objection and have made amendments to adjust the charge that Mr and Mrs Watkins are liable to pay. Taking account of the evidence that the committee received at our meeting on 12 September, I do not believe that there is merit in the rest of the objection, and I suggest that we do not uphold it.

The Convener

Is Alison Harris content with that position?

Alison Harris (Central Scotland) (Con)

Yes, I am content with that position.

The Convener

To summarise, the committee notes that the promoters have agreed with the basic premise of the Watkins’s objections, which are that part of the plot is owned by another party and that some of their land should have been categorised as amenity, rather than residential, land. Accordingly, having agreed with those points, the promoters have adjusted the schedule, which has reduced the Watkins assessment from nearly £1,400 to £538.

We note that Mr and Mrs Watkins sought a further reduction of the amount of their land that should be assessed as residential land, but that the promoters did not agree with that. The promoters have established more accurately the exact boundaries of the protected monument site with Historic Environment Scotland and have produced an updated assessment schedule. The committee is satisfied that the assessment of the Watkins property, as it now stands, is appropriate.

Therefore, the committee upholds the part of the objection that concerns the ownership and categorisation of land, and is satisfied that that has been addressed by the promoters. The committee rejects the other parts of the objection, which relate to methodology and appeals, as they are not affected by the amendment.

We turn to consideration of the second objection, in the name of Mr and Mrs Macgregor. I inform the committee that we have received a further submission from Mr Macgregor and a response from the promoters, both of which are available on the Parliament’s website.

I invite the committee to make comments on the second objection.

Alison Harris

The Macgregors’ basic objection is that they view the property to be on land that is not benefited, and that rainwater from their property and their stream do not drain directly into the pow. However, the promoters came back with strong evidence that showed that the Macgregor property is on the plot and on benefited land and, as such, should be treated in accordance with the provisions of the bill. I support what the promoters produced and agree with them in this instance.

The Convener

Does Mary Fee have any comments?

Mary Fee

No. I agree with the comments that Alison Harris made and that we do not uphold the objection.

The Convener

Is the committee content to accept the promoters’ reasons for saying that the Macgregor property is, and always has been, on benefited land, and that it seems appropriate that the property should be assessed as set out in the bill?

Members indicated agreement.

The Convener

Therefore, the committee rejects the objection in full.

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

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

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



Ninth meeting on amendments

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Ninth meeting on amendments transcript

The Convener (Tom Arthur)

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

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

Section 1 agreed to.

Schedule 1 agreed to.

Section 2—The Commissioners

The Convener

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

I move amendment 1.

Alison Harris (Central Scotland) (Con)

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

Mary Fee (West Scotland) (Lab)

I agree.

Amendment 1 agreed to.

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

Section 2, as amended, agreed to.

Sections 3 and 4 agreed to.

Schedule 2—Commissioners

The Convener

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

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

I move amendment 11.

Mary Fee

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

Amendment 11 agreed to.

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

Schedule 2, as amended, agreed to.

Section 5—First appointments of Commissioners

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

Section 5, as amended, agreed to.

Section 6 agreed to.

Schedule 3—Meetings of the Commission

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

Schedule 3, as amended, agreed to.

After schedule 3

The Convener

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

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

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

I move amendment 15.

Alison Harris

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

Amendment 15 agreed to.

Section 7—Heritors’ meetings convened by the Commission

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

Section 7, as amended, agreed to.

Sections 8 and 9 agreed to.

Section 10—Calculation of annual assessments

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

Section 10, as amended, agreed to.

Schedule 4 agreed to.

Sections 11 to 14 agreed to.

Section 15—Land plans

The Convener

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

I move amendment 6.

Mary Fee

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

Alison Harris

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

Amendment 6 agreed to.

Section 15, as amended, agreed to.

Section 16—Register of Heritors

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

Section 16, as amended, agreed to.

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

Section 27—Interpretation

The Convener

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

I move amendment 8.

Amendment 8 agreed to.

The Convener

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

I move amendment 9.

Mary Fee

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

Alison Harris

I absolutely agree.

Amendment 9 agreed to.

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

Section 27, as amended, agreed to.

Sections 28 and 29 agreed to.

Long title agreed to.

The Convener

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

Members indicated agreement.

The Convener

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

With that, I close the meeting.

Meeting closed at 12:15.  



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

Final Stage - Final amendments and vote

MSPs can propose amendments to the Bill and then vote on each of these. Finally, they vote on whether the Bill should become law

Debate on the proposed amendments

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

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

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Debate on proposed amendments transcript

The Deputy Presiding Officer (Christine Grahame)

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

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

The Deputy Presiding Officer

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

Tom Arthur (Renfrewshire South) (SNP)

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

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

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

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

I move amendment 1.

Amendment 1 agreed to.

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

Schedule 4—Calculation of Chargeable Values

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

The Deputy Presiding Officer

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

Final debate on the Bill

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

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Final debate transcript

The Deputy Presiding Officer (Christine Grahame)

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

16:34  



Tom Arthur (Renfrewshire South) (SNP)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I move,

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

16:42  



Mary Fee (West Scotland) (Lab)

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

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

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

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

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

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

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

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

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

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

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

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

16:48  



Andy Wightman (Lothian) (Green)

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

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

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

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

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

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

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

The Scottish Greens will support the bill at decision time.

16:52  



Alison Harris (Central Scotland) (Con)

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

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

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

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

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

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

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

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

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

Final vote on the Bill

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

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Final vote transcript

The Presiding Officer (Ken Macintosh)

The first question is, that amendment S5M-15126.1, in the name of Annie Wells, on demonstrating leadership in human rights, be agreed to.

Amendment agreed to.

The Presiding Officer

The next question is, that amendment S5M-15126.3, in the name of Mary Fee, on demonstrating leadership in human rights, be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Wightman, Andy (Lothian) (Green)
Stewart, David (Highlands and Islands) (Lab)
Smyth, Colin (South Scotland) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Scott, Tavish (Shetland Islands) (LD)
Sarwar, Anas (Glasgow) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Rumbles, Mike (North East Scotland) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rennie, Willie (North East Fife) (LD)
McNeill, Pauline (Glasgow) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lamont, Johann (Glasgow) (Lab)
Kelly, James (Glasgow) (Lab)
Johnstone, Alison (Lothian) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Harvie, Patrick (Glasgow) (Green)
Griffin, Mark (Central Scotland) (Lab)
Greer, Ross (West Scotland) (Green)
Gray, Iain (East Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Finnie, John (Highlands and Islands) (Green)
Findlay, Neil (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Bibby, Neil (West Scotland) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)

Against

Yousaf, Humza (Glasgow Pollok) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
Wells, Annie (Glasgow) (Con)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Tomkins, Adam (Glasgow) (Con)
Todd, Maree (Highlands and Islands) (SNP)
Swinney, John (Perthshire North) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Smith, Liz (Mid Scotland and Fife) (Con)
Simpson, Graham (Central Scotland) (Con)
Russell, Michael (Argyll and Bute) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Robison, Shona (Dundee City East) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, Tom (North East Scotland) (Con)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lochhead, Richard (Moray) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Kerr, Liam (North East Scotland) (Con)
Hyslop, Fiona (Linlithgow) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Harris, Alison (Central Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Greene, Jamie (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Golden, Maurice (West Scotland) (Con)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Crawford, Bruce (Stirling) (SNP)
Constance, Angela (Almond Valley) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Chapman, Peter (North East Scotland) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Cameron, Donald (Highlands and Islands) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Briggs, Miles (Lothian) (Con)
Bowman, Bill (North East Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Ballantyne, Michelle (South Scotland) (Con)
Balfour, Jeremy (Lothian) (Con)
Arthur, Tom (Renfrewshire South) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

The Presiding Officer

The result of the division is: For 30, Against 83, Abstentions 0.

Amendment disagreed to.

The Presiding Officer

The next question is, that amendment S5M-15126.2, in the name of Alex Cole-Hamilton, on demonstrating leadership in human rights, be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

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

Abstentions

Wells, Annie (Glasgow) (Con)
Tomkins, Adam (Glasgow) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Simpson, Graham (Central Scotland) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mason, Tom (North East Scotland) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lindhurst, Gordon (Lothian) (Con)
Kerr, Liam (North East Scotland) (Con)
Harris, Alison (Central Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Greene, Jamie (West Scotland) (Con)
Golden, Maurice (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Chapman, Peter (North East Scotland) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Briggs, Miles (Lothian) (Con)
Bowman, Bill (North East Scotland) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Balfour, Jeremy (Lothian) (Con)

The Presiding Officer

The result of the division is: For 88, Against 0, Abstentions 24.

Amendment agreed to.

The Presiding Officer

The next question is, that motion S5M-15126, in the name of Christina McKelvie, on demonstrating leadership in human rights, as amended, be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

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

Abstentions

Wells, Annie (Glasgow) (Con)
Tomkins, Adam (Glasgow) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Simpson, Graham (Central Scotland) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mason, Tom (North East Scotland) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lindhurst, Gordon (Lothian) (Con)
Kerr, Liam (North East Scotland) (Con)
Harris, Alison (Central Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Greene, Jamie (West Scotland) (Con)
Golden, Maurice (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Chapman, Peter (North East Scotland) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Briggs, Miles (Lothian) (Con)
Bowman, Bill (North East Scotland) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Balfour, Jeremy (Lothian) (Con)

The Presiding Officer

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

Motion, as amended, agreed to,

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

The Presiding Officer

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

For

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

The Presiding Officer

The result of the division is: For 112, Against 0, Abstentions 0.

Motion agreed to,

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

The Presiding Officer

The Pow of Inchaffray Drainage Commission (Scotland) Bill is passed. [Applause.]

The Presiding Officer

The next question is, that motion S5M-15149, in the name of Graeme Dey, on committee membership, be agreed to.

Motion agreed to,

That the Parliament agrees that—

George Adam be appointed to replace Keith Brown as a member of the Health and Sport Committee;

Keith Brown be appointed to replace George Adam as a member of the Social Security Committee.

The Presiding Officer

The final question is, that motion S5M-15150, in the name of Graeme Dey, on a committee substitution, be agreed to.

Motion agreed to,

That the Parliament agrees that Richard Lyle be appointed to replace Joan McAlpine as Scottish National Party substitute on the Environment, Climate Change and Land Reform Committee.

Meeting closed at 17:05.  



Pow of Inchaffray Drainage Commission (Scotland) Bill as passed

This Bill was passed on 13 December 2018 and became an Act on 17 January 2019. 
Find the Pow of Inchaffray Drainage Commission (Scotland) Act on legislation.gov.uk

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