 Mazzwydd. Fy roi offeredr yn dealingig Ac wrth ei wneud i'r nämlichach yn gennymorydd mwyio mewn bydd o'r Ailey Callander, Senior Solicitor, Andersonus Referm, and Shirley-Davidson, Solicitor, McCash and Hunter. I invite the commissioners to make an opening statement. Good morning, committee members, clerks, officials and members of the public. John McKenzie and Bill Drummond Murray, who are also commissioners, are observing proceedings today. If I could just maybe indicate that, as explained to the committee clerk, our parliamentary draftsman is unable to attend today, but we will endeavour to answer your questions to the best of our abilities. But if there are particular technical matters, we may have to take the opportunity of responding in writing. For your information, I have circulated copies of the original survey plan, which Mr Guest will be making reference to in his opening statement. It will provide some important historical context, but it is also relevant for the identification of the benefited land under the Pow Bill. I have also circulated copies of the parliamentary plans, which are the up-to-date plans, but those match the benefited areas shown on that original survey plan. As discussed with your clerk, Commissioner Jonathan Guest has a short opening statement to make, and I would simply invite him to make that statement. Good morning, ladies and gentlemen. My name is Jonathan Guest. I'm a rural surveyor with over 40 years' experience. I'm a fellow of the Royal Institution of Chartered Surveys and a director of Savils UK Ltd, based in their Perth office. I'm also a farmer with land situated within the area drained by the power of in Chaffrey. I've been the surveyor to the Pow Commission for 30 years, and I've been one of the six commissioners for over 20 years. I walk the Pow every year, and I'm very familiar with its operation and the land at which it benefits. My professional experience as a surveyor has included designing and organising land drainage schemes and also building construction. If I could refer you now, please to the location plan, which is in your pack. Before the Pow and its side ditches were constructed, the low-lying land between Dollary and Methfun Moss extending to approximately 1930 acres was a boggy marsh. If you look at your plan on the right-hand side, you'll see Methfun Moss, and immediately to the right of that, there's a number three on the minor road. I'm afraid the plan's got slightly clipped. It should be 38. That's the height in metres above sea level of the ground level at that point. If you go west along the plan, about halfway along the middle of the plan, along the blue dotted line, you'll see in Chaffrey Abbey, which is where the Pow of in Chaffrey gets its name from, which more later. Then a little bit further on to the left, you'll see it says quarter bank. There's a bridge there called Ochlone bridge, and you'll see another number, 39, which again is the height above sea level. That tells you that between Methfun Moss and Ochlone bridge, the land is flat or even rises slightly. If you then carry, follow the blue dotted line further along, you'll see Tuckett hill, and the blue line goes across a road there, and that's Dollary bridge, and you'll see another number there, 37, so that's the height above sea level there. So there's a two meter drop between Ochlone bridge and Dollary bridge, and then if you follow the blue dotted line round, you'll see it comes round and joins the river Urn, and there's a contour there just to the right, which says 30 meters. So the height of ground level height where the power joins the urn is slightly lower than that, so in effect you've got more than seven meters of fall in the last short distance. So it's the drainage of the land particularly down to Dollary, which is absolutely crucial from the point of view of the power. The reason why there are such different gradients above and below Dollary is that at Dollary there's a large area of hard sandstone bedrock, and this acts as in effect a sort of plug which prevents water draining from the valley bottom upstream to Methfun Moss. In the middle of this, what was a boggy marsh, there was a small island of dry land on which the monks built in Chaffrey Abbey. The story goes that the abbot of in Chaffrey blessed the troops before Bannockburn, and in recognition of this Robert the Bruce enabled the monks to commence work forming the power and draining the valley. With the dissolution of the monastery as a consequence of the Reformation, operation of the power fell to the local landowners. This was first regulated in the 1696 act in favour of the heritors adjacent to the power of in Chaffrey was its title, which I understand was one of the last acts passed by the Scottish Parliament before the active union in 1707. In the 1840s, a significant further improvement of the power was proposed by the landowner. Once again the scheme was based on lowering the level of the sandstone plug at Dollary, so that drainage of the land upstream could be improved. The high cost of the scheme necessitated the introduction of an equitable means of sharing the cost between the owners of the benefiting land, hence the 1846 power of in Chaffrey Act. The central feature of the 1846 act was a very detailed survey of the land that benefited from the power. What Alistair just handed you is a photograph of the actual plan itself, which is a thing about 10ft long, and is a fairly fragile document that belongs to Tony Murray, who used to live at Dollary. The survey was conducted before the improvements were carried out and repeated on completion of the work after the 1846 act. The surveyors assessed the value of the resulting improvement to each field within the benefited land. This 1846 valuation forms the basis of the annual assessment, which each heriter, which is what the act calls the people who own land within the benefited area, has bought they have paid ever since. If you consider the rateable values of UK business rates, which are revalued every five years by comparison, the 1846 power act makes no provision for any revaluation. So the annual assessments levied by the commission today are still based on the 1846 valuation. Whereas the rate and the pound for business rates is 46.6 pence in the pound, the rate for the power is £17.50. This means that the current assessments are 17.5 times the amount of the valuation, which in itself demonstrates the historical nature of the valuations which are still used. There were no buildings within the benefited area. The 1846 improvements enabled the Perth Creek railway line to be constructed. If you look at the map, you will see a dotted line showing dismantled railway, which for a considerable distance runs adjacent to the power, which could not have been built without the 1846 improvements. At Balgaon, there was a station and the limited number of houses were built associated with the station at that time. Since then, a few more houses were built within the benefited area. However, a revaluation, although desirable, could only be achieved by a means of legislation. The commissioners have always had a policy of economical budgets and the very high cost of promoting a new act at Westminster, which we looked into 25 years ago, was way beyond the means of the commission. The manor kingdom development in the early 90s of an additional 54 houses at Balgaon increased the pressure for a revaluation. The re-establishment of the Scottish Parliament seemed to mean that promoting a bill might just be within the means of the commission. Here we are. All the residential properties rely on the power and its tributaries for drainage of surface water and foul water. There are many other administrative features of the 1846 act, which have become out of date and impractical. The drafting of the new bill has been debated and discussed at great length by the commissioners and their legal advisers over the last three years. One recurring theme has been that the administration of the commission must be as simple and straightforward as possible so that administrative costs continue to be kept to the minimum and the policy of economical budgets continued. The aim of the commissioners is that the proportion of the budget spent on maintaining the power is maximised so as to give the heritors good value for their money. The cost of introducing this bill has placed a huge strain on the commission's finances and meant that very limited work has been carried out to the power for the last three years. The 1696 act operated for 150 years and the 1846 act has operated for 170 years. It is hoped that by having simple, future-proofed procedures that the power continued to be run economically and that this bill, if enacted, will prove to be as durable as its two predecessors. In conclusion, I would submit that the success of this bill is of vital importance to all those who benefit from the power of enchafry. However, I would suggest that the bill is of much more than just local interest. There are many powers and man-made arterial water courses in Scotland and throughout the UK. With flooding a topic of national interest, the maintenance and administration of these water courses is a very important subject. This bill has the potential to influence the administration of other water courses and perhaps become a template where a statutory commission is appropriate in other situations. A fundamental to this bill and the 1846 act is the concept of the benefitted land. I wonder if you could outline to the committee what evidence-based considerations and precedents have informed the designation of benefitted land as outlined in the bill. The starting point has been the 1846 survey which you have been presented with a photograph of. It is a very detailed document and all the land either side of the power was surveyed. The plan shows the errors of land which some of that land floods or flooded and some of that land, probably two thirds of it, could not have been improved without the power in its side ditches being there. The land could only be improved by installing drains. Drains have to have a minimum cover of two to three feet. They have to have a gradient or the water won't run, which means you have to have an outfall for those drains. Without the power in its side ditches there would be no outfall so the drains couldn't be installed so the land could not be improved. That's the basis of the survey. The commissioners are all people who own land within the benefitted area. They're all very familiar with it. From a long practical experience we know that the plan is fundamentally correct. The definition of benefitted land is predicated on a survey that was carried out in 1846, combined with the local experience and knowledge of existing heritors and commissioners. I just wonder if you then utilise any other resources such as SEPA's modelled maps of flood risk area. SEPA's flood risk maps are based on what I've seen of them in other situations, are pretty crude maps. They're not a result of anybody going to look on the ground as relative to somebody looking at a plan. I do not think that they would have anything to add to the detail of the 1846 survey and the practical experience of the commissioners. The advantage that the 1846 survey had was that they could look at the ground before the improvements were carried out, so they surveyed it before and after these major improvements, something that we can't recreate. We can't go back and see what it looked like before these improvements were made, which seems why it's really appropriate to keep using their results. To clarify, what are the fundamental reasons for the inconsistency between the SEPA flood assessments and the 1846 survey? Of SEPA maps in other situations, it's a broad brush plan that shows that there might be potential for flooding there. When these plans are produced, the next thing that is called for is a detailed flood risk assessment, so they're not definitive, they're just an indication of a potential problem. Given your experience with the land, within benefited land, would you say that there's a spectrum of flood risk within benefited land? Areas of benefited land more at risk of flood than others? Yes, some land floods and other land does not flood, but all of the land within a benefited area could not be improved because you couldn't install drains. If you haven't got an outfall for drains, you can't improve it, so even if it didn't flood, it would only be at best rough grazing. Given the differentiation between risk within benefited land, would it be correct to say that some properties will benefit more than others as a result of the power? No, the differences would be fairly marginal because if you took away the 1846 improvements, I would say that the benefited land would either be land that would flood or which would be at best rough grazing because you couldn't drain it. If you can't drain it, you can't improve it. You can tend that all areas designated as benefited land without the power would not, for example, be able to have properties saturated on it? No, because if you can have a property, you've got to have drains, you've got to have surface water drains, you've got to have file drains. If you've got nowhere for those drains to run, you can't build a house. The power is fulfilling some flood alleviation function, but due to that function, it's also enabling properties to have surface water and file drainage. That's our position that the residential properties couldn't have been consented without the opportunity of having surface water and file drainage, which ultimately goes into the power. When you come on your inspection, we can go down and look at the waste water treatment works, which serves the whole of the Balgau and Manning Kingdom development. You'll see the outfall and it's only not far above the bed of the power. If the power wasn't maintained, the waste water treatment works wouldn't work. It's as simple as that. I understand that the 1846 act in reference was made to substantial improvement works. For the record, when the last substantial improvement works were carried out, was that at the time falling from the 1846 act? During my tenure, there have been three things that have fundamentally changed with the power. The first thing was that with the introduction of 360 degree excavators, we had to have an excavator track alongside the power. The machine digs the stuff out and then it's got to put it down. In order that it doesn't have to be carted away immediately, most of the power, we've got an excavator track and then we've got a strip of land where we can dump the spoil. Periodically, it's loaded and taken and tipped in low spots in the adjacent adjacent field, so that's one thing that's happened. The next thing that happened was that in the 1880s, the power was regraded, there was scope to regrade the power between red hills and just upstream of Balgau, which is going past the Balgau and Development. That was regraded and we managed to drop the bed of the power by about two foot there. When you come on your inspection, you can see the Balgau Bridge, which is in the middle of the section which was regraded, and the foundations of the bridge had to be underpinned with concrete, which shows you what was done. The next major regrading was about 1995, when we got a grant from the Scottish agricultural department, and what we did then was we lowered the whole bed of sandstone all the way through dollary by about two foot. It doesn't sound much, but when you consider the gradients of the power upstream of that it's actually very significant. That in necessitated, two bridges being underpinned and the scheme cost about £40,000. We got a grant of £20,000 from the Scottish agricultural department and that enabled the power upstream to be regraded in the course of the annual clean. The next improvement we have done is that particularly in the section upstream from dollary bridge, the soils are very unstable and the banks tend to slip in. You clean it out and you come back a week later and you find the banks have slipped in. We've revetted the banks with steel crash barrier, which is basically putting a little barrier along the toe of the bank to stop slipping in. That's had a major improvement. It means that the power doesn't have to be cleaned out as often as it used to. I wonder if I could just ask for a bit of clarification around this map that you very helpfully provided, where it's marked dismantled railway. Could you perhaps explain to me the length of that piece of land that includes the dismantled railway? Is that being added into the power? Was the original power that length? Is really a bit of background information as to why a part of the power contains the dismantled railway? Is the power the same depth all the way along or was it dug deeper to include the dismantled railway? The dismantled railway is parallel to the power. The 1846 plan, as well as surveying the benefited land, also defines the sections of the power in its side ditches, which the power commissioners are obliged to maintain. They're marked in red on the plan. The blue squares on this plan are kilometre squares, so it gives you an idea of the lengths involved. The main power channel itself is just over nine miles, and then the side ditches are about another four miles. There's 13 miles of ditches to be maintained. In the bill, following discussions with particularly the Balgaon residents, it's been proposed to extend the ditches, which the commission will maintain, to include the ditch that runs along the east side of the Balgaon development and part the way along the south side to alleviate fraud risk. Otherwise, the sections of ditches, which the commission will have a statutory obligation to maintain, are proposed to stay the same. I would like to ask you about the number of new heritors. There has been a net increase of 15 residential and commercial heritors at this stage. Would you say that that's a result of the provisions in the bill? Will all 15 new heritors have previously been obliged to pay for the power as a result of their title deeds? The new heritors are primarily people—well, if I explain the history of it—Balgaon, I would say, was where in 1846 there was a station, and sometime after that there was a sawmill constructed, and there were a series of little houses and a hue, and you'll know more about this than me. They were shacks, wooden shacks, to start with, that people were used by people on a temporary basis, and the landowner continued to pay the bill for that area of land. At some stage in the past, these have been sold off, they were used by members of the traveller community for a while. The power lost the information of who owned the plots of land. The area of land was always in the power-benefited land. Landowners should always have been heritors, but their names were lost so they weren't sent bills. The new bill should make it fair and get everyone who is on benefit land back on the register. We're going to form a register of names officially to make sure it doesn't happen again. If the area of land that the house was built on was defined as benefited under the 1846 act, they should have been heritors, but we lost track of their names, which meant that they didn't get invoices. It's now a surprise to them that they are on the new list of register. If you've lost the list of them over the years, there would have been nothing on their title deed then? No, these people won't have it. It's only the manor kingdom that knows about it and will have it in their title deed. The early 1990s were built at once, but they were built in the early 1990s because it was in the late 80s that Ovarap came to see me. Ovarap were the people who were doing the flood risk assessment for manor kingdom as a course of their planning application. Between 1846, to clarify what I understand and 1990, that is the period where this lacuna emerges, where there is a lack of knowledge of the names. The various other properties between Balgar and around the Lime Store, those houses would have been built then. Any further comments on why these names were lost? I don't think they would have been originally part of probably the Ross farm, wouldn't they? And then there would have been little bits of land sold off where the Lime Store is? The Lime Store, maybe. Most of them would be around the sawmill, and the sawmill continued to pay the levy for some time, but not forever. If I don't within the provisions of this bill going forward, any subsequent developments, that would not happen again. Can I just ask you about the function and the powers of the commission? The bill defines the commission's functions as doing whatever is necessary or desirable, and it gives you the ability to repair, maintain and renew the power and carry out improvements as are necessary. Do you think that there is any risk associated with the bill that heritors will have to pay significant costs towards this? No, is the short answer, because the commissioners are all heritors. Up till now, we'd be turkeys voting for Christmas if we did that. We've maintained modest budgets ever since I've been involved. The rate in the pound has not been increased for over 30 years. I can assure you that there's no interest at all in increasing the assessments. Not all heritors will be part of the commission. They'll all be represented. A group of commissioners will be taking decisions for all of the heritors? It's not true enough, but the way that the bill proposes is that, under the present situation, the commissioners—there isn't a rush of volunteers to be commissioners, if you understand it. He will have to be more or less dragooned into it, but the proposal in the bill is that the pile will be divided into four sections and there will be commissioners for each section, so each section will be fairly represented. That will include, for the first time, Balgaon being represented in one of the commission areas. The cost of maintaining the pile will be the same, regardless of where, near the pile, you live. Is that a standard charge? The rate in the pound will be the same, by proposing a uniform rate in the pound. Are you content that there are enough safeguards in the bill for heritors in relation to that, that the cost won't be of a nature that would be difficult for some to pay? We've debated this a lot. My concern is that having a bill is a hugely expensive thing, and the last two bills have been over 150 years apart. I don't think that we're going to be able to come running along in ten years' time and say that we want some amending legislation. It's just not affordable. We're trying to make the thing as simple as possible so that, if this has to last another 150 years, it will. If you're introducing RPI limits or some sort of artificial means of... I could just see that causing problems in the years ahead. We'll be back in the same situation where we've got a structural problem in the act that we're working with, but we can't afford to get it changed. Through the bill, you will have a list of all the heritors. You will have a new list drawn up so that you will know exactly who the heritors are along the pile. The heritors that you didn't know were there that were now going to be on the list. How are you explaining to them what the costs are, why they're paying and what will be done on their behalf? What proposal is being put to them? First of all, we've had a series of public meetings with them to explain what this whole process is. There will be heritors meetings when things will be explained to them. I think that's the main thing that will happen. There was a consultation paper with details of the proposals that were sent out to all the people who were identified by reference to the land register, the register of seasons and local knowledge. There is a community body at Balgaon. Two of the people who run that organisation have attended commissioners meetings to hear the debates and hear what we're trying to do. There is the Manor Kingdom development, the Balgaon development. We are also talking about the piecemeal, sawmill, shacks and houses here and there. They are different categories. The Balgaon development is referencing their title needs to an annual assessment. I think that you're probably focusing on the other few people who felt reasonable in the context of the bill to now include because their houses are in benefitted land. They've actually had a free ride in the meantime. When you say that you carried out a consultation, did every single person that lives on the benefitted land take part in that consultation? They were invited. Yes. How many took part? What do you mean? They were invited for the meetings. They were quite attended. They were in the village hall, in the gas village hall, which is only half a mile away from Balgaon. They were all invited. We had good lively discussions. As you mentioned, the resident association took the minutes and put them out to see on the web as well. Are you confident that every single person that lives on the benefitted land was aware of the consultation? Yes. They were all written to. They were all invited to attend. The consultation was not a document that people could read and give their views on. It was an invitation to come to a meeting. An invitation? It was both? It was both. Did you take and publish any minutes from those meetings? Was there any record of the discussion? We took minutes and we considered the points that they had raised. Was that made public? I don't know whether it was. Not as such? No. When you say not as such, what do you mean by not as such? The minutes were sent out to the consultees. Was there a reason for that? There wasn't felt necessary. Why? Those people are all on benefitted land. They all have a vested interest in that. You want to be as open and accountable as you possibly can be. If not everyone has attended a meeting and you have taken a record of that meeting, it would seem logical to me that every single person on the benefitted land would be sent a copy of the discussions that took place and the outcomes from that. If the promoter provides a written answer giving the detail of the consultation exercises that were undertaken and how feedback was taken into account in defining the various options, which became the option to take it forward under the bill. That would be helpful. That would be helpful. Would it also be possible for the committee to see the consultation documents and the responses and the minutes of the meeting? Of course. That's fine. There was just one thing that I wanted to follow up on. Given the interests of simplicity, there's not going to be safeguards. Can I just say I'm correct in understanding it? A heritor's ability to pay is not going to be taken into consideration. No. What's the difference between that and paying your electricity bill or paying your water bill or paying any other bill? There are differences in terms of state support. If the situation is someone's asset rich but income poor, they're still going to be charged the same rate. That applies to farmers. Yes, that's the situation. That's exactly the situation with farmers. You have to pay. Heritors are able to pass resolutions. Those resolutions can be passed by the heritors who represent 75 per cent of the sum of the chargeable values of the heritor's land. It's really based on land acreage as opposed to one vote per heritor. I was just wondering whether you felt this perhaps gives the large agricultural landowners disproportionate power over the residential landowners. What would be your thoughts with regard to that system? It seems proportionate on the basis that they are paying the bills, but that seems like the right way to go. Are you the right way to go because you feel maybe if they own more of the land, they're maybe getting more benefit from the land, so they should be paying a higher bill? Is that what you mean? I suppose they do pay a higher bill because they cumulatively get the benefit from it. It was on a pay-as-you-go basis, I suppose. Sorry, I just wanted to mention in terms of section 9 of the bill on the alterations by heritors and that 75 per cent sum of chargeable values. I think that it's worth bearing in mind that those alterations are only to very specific parts of the bill in terms of the sections. It's not every decision as well that would be affected. Is that only under section 9 then? I'm just mentioning in terms of section 9 where you've got the land being taken into account. Those alterations are very specific to parts of the bill. Other sections that wouldn't be applicable. I'm just referring to that specific section in those alterations. I think that's just when we want to change the boundaries between the lower middle and the upper parts of our function. It's not an everyday vote. It's section 3-6 where section 9 comes into play and section 3-3 about excluding ditches. For example, a heritor's meeting may exclude ditches from the pow by a resolution passed in accordance with section 9. Similarly, a heritor's meeting may alter the boundaries between the various sections of the pow in terms of section 9. That's how it operates. Which would alter the costs that people were bearing quite considerably? Those are for big structural changes. I should say that if it completes, it also bites at section 2-3 as well where a heritor's meeting alters the number of commissioners for a section of any benefited section of land. There's more to do with the administration of the pow in a physical sense. Regarding commissioners themselves, why is it that heritors have a role in appointing commissioners but not in dismissing them? I was just going to say that that's a continuation of the position as it was under the 1846 act. In practice, the heritors would have a number of opportunities through heritors' meetings to convey the issues that they might have. Thereafter, it's for the other commissioners to take a decision in terms of the bill on why it might be necessary to terminate a commissioner's position. Under the 1846 act, it was quite limited in the circumstances in which a commissioner might stop being a commissioner in terms of change of land ownership or death. That's what would happen in practice. The provisions in terms of termination intended to bring the commission as a statutory body more in line with other statutory commissions in termination provisions. In practice, heritors would have meetings with commissioners and the commission and they'd have an opportunity to express any concerns that they might have. We can express concerns about how our heritors would be able to hold commissioners to account. Given that it has been stated that this is a continuation of the 1846 act, that's a conception of democracy less than 10 years after the great reform act. We've moved on to 170 years. In the 30 years that I've been involved in this thing, and the heritors have been invited, I can only recall two heritors until the consultation period, I can only recall two heritors ever turning up to a heritors meeting. Two heritors in 30 years. I mean, there's an excitement now because of this bill and the changes, but once this is over, I can tell you apathy will reign again. If you start getting bills dropping through the doors that we aren't expecting, you may get a few more attendees. I think that's a potential provision that we can ever think about and perhaps respond to in life questioning. Does the bill give any alternative tools or means for heritors that are unhappy with the commissioners' performance to hold them to account, to remove them? Not to remove them at present, no. It was intended that the bill, primarily, would be the way to hold the commissioners to account. It has defined fairly closely what the commissioners can and can't do, and it would be illegal to not follow the bill, for the commissioners not to follow the bill. If I just... Can you clarify another point? To become a commissioner, you have to be a heritor, but if a commissioner ceases to be a heritor, can they continue being a commissioner on his provisions within the bill to remove him in that situation? You've got to be a heritor to be a commissioner. Someone is a heritor and becomes a commissioner, but subsequently moves and is no longer a heritor. Then he can't be a commissioner. The bill makes that provision clear. That's absolutely clear. They've got to be heritors. It seems to me that the ultimate sanction that heritors would have in relation to the commissioners would be the ability to dismiss them if they didn't feel that they were carrying their function correctly. I accept what you say that there has been a degree of apathy in the last 20, 30 years that you have been involved with the power, but you don't know that that's going to be the case going forward. You're producing a bill that gives heritors no right of sanction. Maybe that's something that we have to think about. It's a provision that we will consider carefully. I can assure you. Where is that 10-year cycle? 10 years is a long, long time for someone to be in place that heritors are not happy with. I'm sure that you'll agree with that. Honestly, it's quite difficult to find people to be commissioners. We do not have a wasting list of people who wanted to do the job. What work have you undertaken to publicise the role of the commission to those to heritors and to try to engage with heritors and encourage them to become involved? I suppose that the communication has been up until now by letters publicising our annual accounts and what we've done in the year which I suppose is noticed to anyone who wants to get involved. Was the role and function of the commissioners part of the consultation exercise that you did? I suppose that everything was available for consultation. That's not actually what I asked you. Was it part of the consultation? Did you specifically ask in the consultation or did you specifically explain the role of the commissioners? Who appoints them and who has the power of sanction? I was definitely explained at the public meetings. Yes. I can't remember it being put on paper but it certainly was explained. It is now in the bill of course and they have had communications. What piece of paper did they get which does explain quite clearly how we intend the bill to work. Have you made me at least what the average attendance was at these public meetings? 30 to 40 people Out of a total of how many heritors? What are we now? 150, is it? No, no. We have more like... No, it's not as many as that. Hang on, mate. No, it's nothing like as many as that. Is that the schedule of heritors? The numbering on the left goes down to 106. The number of agricultural heritors is 29 and there is 58 residential and commercial heritors which will increase to 73 in co-operating the heritors that have previously not been charged. On the... After the bill. I'm just reading the consultation paper which we will give to you after this meeting but the appointment of the commissioners what is a specific matter that was mentioned. I'm just quoting from it. I should comprise seven commissioners who in benefited land representing the upper middle lower and bell gown sections of the benefited land. Commissioners would be appointed by a majority of the relevant heritors voting at the heritors meeting in relation to the section of the benefited land to which the appointment relates. So there was discussion about that. I grant you there wasn't a particular point you've raised about appointment but not rights of dismissal. I don't see that in the paper from a very preliminary reading but the actual purpose and function and role of the new commissioners was a specific matter in which views were sought. Just to remind me, was that consultation document only discussed at the town hall meetings or was it a consultation document issued to every heritor? To everyone that the commission had identified as being a heritor so it was posted out to them as well. That's useful. Thank you. 2016, so that was quite a large document. How many responses did you get? I think I need to check that. We'll come back with our written response on that. Can I ask you now about maintenance and repair of the power because the two largest categories of spend are on cleaning and repairs and between 2004 and 2016 just under 190,000 were spent by the commission. Can you give us a bit more information on what in detail that involves the cleaning and maintenance of the power? The budget for the power for the past few years has been around about 18,000 a year is what we've actually had. The total budget of the assessments has been about 20,000, hasn't it, Shirley? If you take off the administration costs which are about which we keep to the minimum there are about three that leaves us 17,000 to spend on the power. Basically what happens is that I walk the power generally in about February and inspect it all and we look at the things that need to be done. I draw up a list of things that we could do. We have a commissioners meeting usually about March April. We look at the things and we decide which are the priorities and we instruct the work and always keep it within the amount available. That's what happens. It's a mixture of cleaning sections of the main channel, cleaning side ditches, repairing, revetting, that sort of thing. This year between 2015 and 2016 there was no expenditure on cleaning and repairs, is that correct? The money has been spent on promoting this bill. What are the implications for the power going forward given that no maintenance or repairs have been done in two years? There will be a backlog but we had got the power in one of the reasons for deciding that the time was right to promote this bill was that we had got the power into a good state of repair. We had done a lot of revetting on the section between Dollary Bridge and Wood End which is where we have these soft banks and we've got that into it. That was a section which we used to have to clean every year. We now because of the revetting only need to clean it every three or four years so we felt that if we were going to take a break from maintenance we had got the power into a good state and we were hoping that this process has taken longer than we thought but we thought that if we took a couple of years off we could have the legislation updated and then get back to maintaining the power. The individuals who live in the benefited land will be given a schedule of work that will be done on an annual basis on the power. I appreciate that you walk the power and the commission decides what work needs to be done and how that will be communicated to the people that are going to pay for it. As a budget, isn't it? As a budget of what work needs done and how much if we think it will cost. The other thing that happens is that Herrith is right in periodic to contact us and say there's a problem in such and such an area and we'll go and look at it and if it needs to be dealt with it will get dealt with. If you have a specific mechanism for communicating on going work on an annual basis to all of the heritors. We haven't in the past but it's probably something we should do. I just wanted to mention in that regard that in section 10 of the bill it explains what has to be included in the annual assessment and part of the requirement of the annual assessment is that it specifically includes a breakdown of the budget so that the heritor receiving that assessment has an understanding of what budget has been come up with. Sorry, I don't know if it's helpful but I can answer your previous question in terms of the consultation responses. It's set out in the promoters memorand which explains a little bit about the consultation paper and there were seven responses received. Seven responses out of how many people? That it was sent to and I'd need to double check that but it was sent to everyone on the commission's list but I can check that number for me but it was seven responses that were received so obviously the number of people it was sent to was greater and it would be more in line with the number of heritors it set out. Are you aware of any further work was done to contact the people that hadn't responded because seven seems a fairly low number to respond? One interpretation could be that the explanation provided in the consultation paper and at the public meetings was by and large satisfactory. People don't make objections when they hope to assume that they are by and large happy. Can I move on now to talk about the beaver barriers on the pow? Are you confident that they are effective enough and given that no maintenance was done between 2015 and 2016, has that had any impact on the beaver barriers? The situation with beavers is that if beavers were allowed free rein on the pow it would have a devastating impact because all the land certainly above dollary it would undo the work of the pow and it would be devastating for everybody so last December I have a personal interest about 80 acres of land which will be wrecked if the beavers were in control so I went to see Roseanna Cunningham last December because she is our constituent CMP MSP Rhyla I went to see her and explained the problem to her and she kindly contacted SNH and they have a beaver expert called Royson Campbell Palmer and she came to see me and took her around the pow and explained the problem to her and she who came up with this idea that there should be a barrier to stop the beavers coming up from the urn and then she also thought there needed to be another barrier at the other end, the reason is because meth and mast is a watershed the water runs drains westwards down the pow of enchafry and eastwards down another pow which goes into the almond and so you could get beavers coming up the almond as well as coming up the urn so she thought there should be a beaver barrier on the east pow the one that runs to the almond to stop them coming up the almond so they could come up that pow trot across meth and mast and they're into our pow so she came up with this idea and I've since had a meeting with John Burroughs who's the SNH officer dealing with beavers in the area and they're interested in the pow being a trial beaver exclusion area there isn't yet a design for a beaver barrier she's in effect asked us to produce one which we're in the process of looking into we've got a we have a contractor who was very capable and who's looked after the pow for many years and I'm discussing with him how this thing might be constructed and where it would be situated and then we're going to go to SNH with proposals so that's where we are and then Rhysyn Campbell Palmer tells me that she and her team are licensed beaver people who can handle beavers and that they would basically catch the beavers between the two barriers and remove them so that's the plan are there any other wildlife issues that affect the pow not that I can think of immediately I mean I suppose you would get invasive weeds you would get some weed which was choking the pow or you would get rabbits burying into the banks but I mean the beavers and I suppose vegetation are the two main issues okay and just for completeness before we move on to other members that want to ask questions can I just go back to the issue of maintenance and the cost are you considering putting a cap on the bills that the heritors will receive will there be a maximum charge that you will be allowed to levy well it will be very difficult because as I see it because if you say this bill has got to last for another 150 years how do you define a cap which is going to endure for that period of time it seems to me that the thing is that the whole system is self-regulating in that it's unforeseen calamity happened and we had to go and do something to sort it out how would you how would you draft something which would allow for that and also impose a meaningful cap I'm struggling to see how one would do it if this is going to be something that's going to have to endure for a long time so potentially if something quite catastrophic was to happen heritors could be faced with an extremely large well if it meant for instance that you know the drains at the Balgaon houses were not going to work I'm sure they'd be very very keen for us to do something about it all their houses would be uninhabitable so how do you how do you I'm just struggling to see how you draft that again the bill tries to restrict what we can spend money to being necessary for drainage and that's the main point we'll only do what's necessary and we can't control what may be necessary okay, thank you another small thing that's happened in the last few years which we didn't know anything about we've now got SIPA so we have to get a car licence and we have to do all the various things well if SIPA suddenly put up their charges or how do we control that on the issue of the charging scheme you wanted to come in well I was going to look at assumed values and in relation to assumed values what year or years were they used in the analysis of sale prices for comparable land what I'm really thinking about is whether the 300,000 figure for residential land took account of the recent economic downturn which obviously had created difficulty for housing developments I suppose honestly I suppose it hasn't I mean it was these figures were we've been in quite a while in drafting this bill equally I suppose the value of our cultural land has dipped in the last year or two and that's not reflected in here I suppose as well so one could argue that the whole thing needs to be updated but then swings and roundabouts you'll probably get much the same answer at the end the charging scheme is based on acreage rather than the value of the buildings I'm just wondering whether this does not unfairly penalise someone with say a modest house on a rural plot as opposed to somebody in a large house in a more compact plot associated in a housing estate well I suppose what we're trying to value is the potential to build houses which the improvement to the power has created whether somebody builds a small house or a big house on their plot up to them somebody could have a plot with a small house on and then go and put another house on the plot you know in the garden we have no you know I mean the only thought that occurred to me as a possible refinement to that which might be a way of making it a bit more sophisticated is that I think you'll see in there that there's a category for amenity land which has a nil value and the reason why we put that in is because at the Balgaon development you've got the houses which are all sit on their individual plots and then in the middle of it you've got this common land you've got a green well that's obviously benefited land because it's within the benefited area but it's got no value so that's why we put a nil value on it or it's 500 pounds based on the fact that the value of the land before the 1846 improvements is 500 pounds or 500 pounds minus 500 is nothing so I suppose you could you could say that the ground that goes with a house should be three times the footprint of the house and anything over that is amenity land you could say that in order to refine it which would be a way so if somebody is sitting with a small house on a large plot then only part of the plot would be treated as the garden ground and the rest would be treated as it you could do that which would be a refinement I haven't seen the area until we come in our walk about is there areas that you think could be in 5, 10, 15 years possibly become another manor kingdom because my concerns would be that if there was a development two or three developments along this area of land that would put further strain really on the pow and also what would be your thoughts is there potential for that to happen? We don't see any specific sites but it is a concern of ours as well that this could happen and hopefully the bill future proofs that it allows for a revaluation in the event of a major change of land use so we could then re-value again if there was another development we don't have powers to prevent development so if planning office give them planning permission it will happen One of the provisions of the bill are for all new development coming forward there has to be a notice served on the commissioners so that commissioners become aware and live to new development proposals coming forward Sorry, that was me slightly digressing as it came into my mind I would also like to ask you about the promoters if you could place on record the impact of the new assessment on both the residential and agricultural heritors How much would those assessments change? Have we circulated those figures? We can provide figures after the session to the Parliament to put in the public domain The differences are pretty small a lot of the residential ones go down from what they're assessed at the moment some of the agricultural ones go up but the differences are fairly minor And just finally why does the bill not provide for payment by instalments? It's done with council tax it could be I suppose that perhaps there's one for Shirley, but it's mainly because we're always trying to minimise the cost of administration because we want to spend the money on the power not on complicated administration That's basically the reason One other point of clarification in terms of terminology not hectares I suppose it's just common usage I mean I work as a surveyor and everybody talks about if you ask somebody how much is your farm worth they're not going to say what it's worth ex-parents per hectare or if you talk about building land people talk about values per acre it's just how people speak I should say I don't think the promoter would have any difficulty in updating it or providing it in both hectareg and acres if that would be anyone in the metric age Of course I'm just moving on slightly What levels of historical debt are owed to the commission? I don't have the accounts with me but we can provide that Have you had challenges in debt collection in the past? We've basically had unpaid bills and the issue has always been Shirley is more expert on this than me but the issue has always been a cost of recovering in very small sums and usually the cost is rather more than a lot more than the sum at stake There wasn't a very big issue until the manor kingdom houses came along and when it came before the commission the committee we decided to try and build unity and move forward to a new bill and we decided in the interests of not causing it wouldn't help our case if we started pursuing debts it would be much better to try and build a bit of agreement on our way forward unfortunately that's taken us longer than we thought it would to get this far but we haven't been pursuing these debts recently Specifically with the Balgown it's being problematic as I understand it How did it come about given that the owners had relevant legal obligations in their title deeds? I think again I'm straining on to Shirley's territory but when the manor kingdom development started as I say, Ovarra came to see me and then the developers came to see me and we discussed the assessment which should be applied to the houses and agreed that and then the plan was that there would be a deed of conditions which would I mean honestly we were hoping that we wouldn't have to send out 54 assessments to these 54 houses we were our preference would have been that there would have been somebody factoring the development there would have been a factoring charge to the 54 houses which would have included the assessment and we would have fed out one bill that would have been administrative far preferable for us but it ended up that that didn't happen and there is a deed of conditions and they are they are all notified of that but we're not actually party to that deed of conditions and we're not legal party to it can you elaborate Shirley? The deed of conditions does make reference to the householders having an obligation to pay I think it is a one 54th share of the levy payable to the power of the Jaffrey commissioners so they have been alerted to the fact that there is a charge so it shouldn't have come as too much of a surprise when they got the bill okay and I wonder if you can clarify section 21 of the bill empowers the commission to recover historical debts from owners associated with the 1846 act in relevant title conditions section 21 I think Joe and I both understood that this was to recover future debts rather than past debts I can clarify it relates to the powers to go to the share of court to recover unpaid sums under this act should it be passed it wouldn't cover under the 1846 act it would have to use the powers under the 1846 act to recover debts and so you're writing that day off then I think that's what we're going to do and just move forward we'll have to consult on it but I don't think that it will be officially written off what you're intending under the new bill to pursue these historical debts under the 1846 act we're not intending to have any powers to pursue historic debts under the new bill section 1 we've retained all property rights liabilities and obligations of the commission prior to incorporation are transferred to invested in the commission so we haven't wiped everything out we wouldn't propose to wipe not just debts due to the commission but also all the obligations of the commission that were there under the 1846 act so this new bill does make provision for pursuing these historical debts yes, in effect it puts them on to our books new powers no new powers this is really just updating what was there before which included pending and such historic methods of debt recovery under the 1846 act so it's transferring a debt but you're not intending to pursue and use the powers of the new bill to recover these debts I don't think the commission haven't taken that decision it's not been on an agenda for a meeting of the commissioners so if it's going to be part of this bill and you don't intend using the power, why have you included it in the bill that's one for a parliamentary in Draslin but it's obviously a saving provision to potentially pursue debts under the old act that's what section 1 3 includes I think in terms of the policy position which is where you're getting at you're going to write a full debt I think that the commissioners need to consider that and reach a view in a meeting as to what their policy is going to be there will be part of this bill there is the possibility that in the future a different set of commissioners could decide to use that power and collect historical debts there is that power and I would like the opportunity to come back to you and writing on that when I've had an opportunity with the commissioners and with their parliamentary Draslin if I may can I just ask you about appeal mechanisms because in the bill in section 10 and 12 there is no third party right of appeal if people are unhappy about the annual budget or the proposed amendment to the land categories now there was a right of appeal in 1846 act but there is no right of appeal in this act can I ask you why that is I think the reason is because when the revaluation process the the severe the severe valuations can be challenged by heritors at that stage but once they are once they are decided the rates the values for each category of land the actual valuation at the end of the day is a mechanical process it's the area times the the value for each category a right of appeal in a bill is slightly different from a heritor being able to make representations to a surveyor I think the thinking was that if there was an appeal which was on a valuation matter and they took it to court the court would then refer it to a surveyor to be back to square one but there is also no right of appeal on the budget and the amount that you are going to have to pay in an annual basis there is no right of appeal on that no there isn't no that would in effect come to a cap wouldn't it yeah but if you are unhappy about the proposed budget and the proposed expenditure for the year a heritor has no right of appeal has no method of disputing doing the remaining method would be under judicial review so there would be a method of going to the court if the trustees had not fulfilled their duties and powers properly under the act on a point of law for example if they were setting a budget which was unnecessary for achieving effective drainage so there is always going to be that inherent mechanism available to any third party challenging decisions of the commissioners but I think looking at it in the round a decision has been taken obviously to keep costs down and it was felt that the costs of appeal mechanisms would certainly build up in terms of what the work of the commissioners intended to do which is to maintain and improve drainage I think as Jonathan guest has indicated there are protection mechanisms in there because the actual assumed values are fixed within the bill itself that is actually in the bill so the only issue that third party objectors may have is to challenge the budget I do accept that there may be tensions within that in terms of the assumed value the severe that is appointed has to act independently and this is in the bill he has to be a member of the RICS as you pointed out the heritors can make representations against that the severe has to have regard to these representations and it's felt that if a court appeal to the sheriff what were available then the sheriff would be deferring to what a severe would be saying anyway so would it not just come to the same thing almost? I think an awful lot of what you say through on supposition you are presuming and you're presuming on the face of it that this bill weakens the ability for heritors to take disputes to get some kind of resolution for any problems that they have it weakens the provision that was already an 1846 bill and if you can give me absolute clarification on the reasoning behind that I think that would be very helpful I think we would respond in writing if we could because it's quite a detailed issue in some depth during the bill's evolution I'll just go back to the debts that we were discussing earlier I'm looking for some legal clarification here, I'm a little confused how historic are these debts that we're talking because my understanding is that if you issue an invoice to somebody and they don't pay surely you're time barred after a few years for actually chasing that so five years I missed the page so it's fine so do you have a percentage, what is the value of people who haven't paid within the five years we can provide that just out of I would like to could you provide that please can I just ask for a bit of clarification we discussed the spend on maintenance and repair in 2015-16 there was no cleaning and maintenance done and I understand that moneys were still collected and the majority of the moneys collected went into the work and the preparation of this bill did all the heritors agree that all the money that they were paying was to go towards that cost did the heritors know that the money they were paying for cleaning and maintenance of the power going towards this bill they weren't told directly they weren't all sent letters saying that decision had been made, no so only those who took an interest would know that so how many people paid in 2015-16 all the cultural people and probably what at least half of the residential half the houses and about so numbers, how many all the farmers and probably at least half the houses paid 60-70 people like that out of those 60-70 people how many of them would know that the money that they were paying for maintenance and repair was going towards this bill all the ones who came to the meetings it was widely known but if someone was completely cut off from the neighbours yes, they might not have known that so you had no method of contacting all of the individuals to say to them we are charging you X amount this year for maintenance but we are not spending any money on maintenance because this is what we are doing with the money you did not communicate that to the people that live on the land, no? no, not just like that not directly and out but you say not directly and they all knew how can you be sure that they all knew when I talk to them, I see them, they are all my neighbours so every single person that lives on the benefitted land knew that the money that they were paying was not being used for maintenance it was being used for this bill I cannot say that but I can say an awful lot of them did because I spooked them and did every single one of them agree to the money being used for the bill I have nobody objected now nobody thought it was a good idea did they actually say that? to me, yes okay, thank you okay seven people on seven heritors responded to the consultation we know that not everyone was necessarily aware of what the plans of the commission were regarding this bill and that's people living on the benefitted land supposing someone wants to move to the area and they're moving on to benefitted land at what point between deciding to move the area and actually purchasing a property would they be notified of the obligations if you were buying from that you'd be told straight away the house people you know about the convincing of houses Shirley well there's probably a number of ways that purchasers would be put on notice that there would be an obligation to pay an assessment to the power particularly in rural areas where it can't be taken for granted that the property is connected to the public service system drainage is actually an issue that's paid particularly attention to by solicitors acting for purchasers I think as Joe said drainage of agricultural land would be the subject of due diligence by the surveyor acting for the purchaser and the solicitor and the matter would be covered by the missives which is the contract for the sale and the purchase and the missives would cover drainage both for agricultural land and residential property for a house purchase the prospective purchaser would generally see the home report and that should disclose the power assessment both by the seller as a joint cost in the property questionnaire section and also in the survey report which should reveal the private nature of the drainage and the property questionnaire is a standard form prescribed by legislation the housing Scotland act 2006 and there's regulations under that act and then there's Scottish standard clauses used throughout Scotland now in residential conveyancing the offer by the solicitor to purchase will make reference to the Scottish standard clauses second edition whatever it is and that includes a clause which states that the seller warns that he's connected to the public sewer and drainage system or the property is connected to a private drainage system which would be the case here and then it goes on to refer to septic tanks and compliance with SIPA and all that sort of thing another clause in the standard clauses meets provision for the production of a property inquiry certificate and that's part of the normal sale process and that discloses whether or not a property is connected again to a public drainage system and if not which would again be the case for the properties located on the benefitted land the purchase there is then put on notice to seek additional information as to the arrangements for drainage and currently the property inquiry certificates do already report quotes the subjects are not connected to the sewerage system maintained by Scottish Water and it would be the intention that once the bill goes through that McCassan Hunter's clerk to the commission would write to the private companies that provide property inquiry certificates to make them specifically aware of the new act and ask them to specifically reference it in the search report as I've mentioned before the houses built by Manor Kingdom their title dates make specific reference to the annual levy so it should be clear from their title dates and the date of conditions also the land plans the commission would make them publicly available I think they're already publicly available as part of the bill and we would make a small amendment to the bill we could do to give that public access to the land plans a statutory footing Given all of that why is it the case that people have moved in in the first contact to have with the commission it's when a bill pops through the door in the first awareness of the commission why given all of the measures in the case that people who have moved into residential property have first come into contact with the commission when a charge arrives through the letter box Is there really a number of explanations that their solicitor may not have told them they may not have read the letter from the solicitor or it's not unknown for people to hear what they want to hear or Do you think that the commission has an obligation to ensure that prospective purchasers of land or residential property within the benefited land be aware that they will be subject to the pardon Quite often people or their solicitors phone up to see we're in the process of buying and we understand that McCashin Hunter Clark to the commissioner can you tell us the current position and they're then told what the position is Yeah You referenced a number of documents and from the evidence that we have received I'm not satisfied that they do give enough clarity and information for prospective purchasers We received a bit in submission from Professor Robert Rennie in regards to the property inquiry certificate he makes reference to the fact that the moment he does not think the sort of scheme that you are how entailed would be disclosed within the property inquiry certificate Again Regarding the property question there, which you referenced in Scottish Water, Sturridge and Drainage Network he states that there's a detailed question relating to private Sturridge connection to a septic tank but that is different to a restricted statutory scheme So would you accept that the existing information that's provided to prospective purchasers is not comprehensive enough to include and to inform prospective purchasers of their obligations should they purchase a property in benefited land Well what you're saying is that some people don't know so they factor there may be some gaps there but looking ahead Well as I say looking ahead we would be contacting the companies that provide property inquiry certificates with a view to their making specific reference to the power of enchafry Right now all the householders know about it and they'll be under an obligation under the act to tell the power commissioners when they sell a house that there's also there's a new digital land and property information service being developed by the land register I believe Scotlist which is a Scottish land information system and that would definitely seem to be the place for the powers arrangements to be flagged up looking to the future There's also been some talk looking to the future that the commission would develop a website where transparency notice of meetings send us easy ways of telling a link or an email to tell the commission clerk when a house is changing hands that would be looked at but that's the sort of thing that probably isn't appropriate to put in a statute but certainly the commission I think would be intending to make things as public as possible But this bill makes no provision on land plans which can be publicly inspected I think we would amend the bill to include that if that was felt to be useful and helpful Would the register of heritors consider inventing to make that public the sensible? That's not included in the bill either Sorry I think that consideration would need to be given in terms of what on the register of heritors would be made available just to ensure that it's completely compliant with data protection requirements Is that something you'll look at? It's something we can consider if it's felt that it's necessary for the register of heritors to be made available and the commission can consider that but definitely with the land plans I think there's consensus that that would have been made available and there's absolutely no problem with doing that and they're publicly available at the moment So you will make changes to the bill? In terms of the land plans Okay And just finally the land plans What cartographic standards do they adhere to? The land plans What standards do they adhere to? It's all based on ordnance survey material It's all been the land plans are drawn up in my office by using a software called Map Info So all the boundaries are accurately shown and the areas have been accurately calculated Excellent, thank you Any further questions? On behalf of the committee I would like to thank the commissioners and the fishers for attending today It was decided on the item 1 to take the next item in private so we will now suspend business to move into privatisation