Pow of Inchaffray Drainage Commission (Scotland) Bill

– in the Scottish Parliament on 13th December 2018.

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Photo of Christine Grahame Christine Grahame Scottish National Party

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.

Photo of Tom Arthur Tom Arthur Scottish National Party

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.

Photo of Mary Fee Mary Fee Labour

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.

Photo of Andy Wightman Andy Wightman 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.

Photo of Alison Harris Alison Harris Conservative

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.