 Fy gyd ni, ac rhaid i ff selen nhw i'r FDIF, y cyffrediniddion derbynnig, Fy law i'r FDIF y Gwyrdd yng Nghymru? Rwy'n meddwl i gyd yn Gweithdoedd Cymru, ac rhaid i'n defnyddio'r FDIF i'w perffort trwy'r Gwyrdd dros y rymor iawn, ac i'n ddwybod i'r cyfwyr diwrnod. Why Fy law i'r FDIF yw Windows 13 th December 2017 y bydd cyfeirio efallai genre dweud hynny'n dod o gaelol ac reduce darlodol. Mae'r cyconfidianth yn dwybod i'r FDIF, Peter Simon, y cyfnodd ei ginsod i hyfforddiad o'r ysgolwg cyraint o'r gwneud cyfrifatag o'r ysgolwg cyfrifatag rydyn ni'n ffrindio'r ysgolwg cyfrifatag o'r ysgolwg cyfrifatag, ac mae dduch yn rhoi'r cyfrifatag fel gairan nhибwys gydag ychydig, ac mae'n cyfrifatagholau cyfrifatag o'r hynny o'r gwneud. Maen nhw'n mwyaf i'w sgolwg cyfrifatag gyfrifatig o'r cyfrifatag fod oeddwyl i gydag o'r cyfrifatag aion o'r awg Lord Simon? There will also be an opportunity for questions to be asked regarding other new issues that have been raised and the other submissions received since the last meeting, which includes a submission signed by 61 residents of the Balgown estate. Will the promoters like to make an opening statement? Yes, I would, convener. Good morning, committee members, the clerk and others. You should have before you documents that I have presented this morning. I think that there was an opinion of council that you will have been sent a copy of earlier this week. What I am planning to refer to today is five documents. First, it is the opinion of Mr Robert Sutherland, an advocate, dated 19 January 2018, a copy of the 1846 act, a copy of the 1848 plan, a copy of the book of reference, an estimate of expense, dated 1847 and a copy of the estimate of increased value, dated 1851. Those are all in the pack that you have, so I am not really going to go into the documents in too much detail. I am just going to sort of summarise the promoters' understanding. If you have those documents before you, firstly, may I start with a sincere apology on behalf of the promoter and its advisers for the inconvenience to all concerned in a requirement now for the promoter to provide replacement parliamentary plans, to identify properly and robustly the benefited land for the purposes of the bill. As there will be new heritors as a consequence of new parliamentary plans, they will need to be notified with a requirement for an objection period. It is necessary for me to firstly explain how this error occurred and secondly the promoters' proposals for remedding the situation. The promoters' witnesses have provided evidence to the committee that the benefited land, and I will for convenience call it the red line boundary because we can think in terms of a red line boundary, shown on the existing bill plan matches exactly that set out in the 1846 act. I am sorry, the 1846 plan, a copy of which I provided to the committee at its meetings on 24 May, last year and 13 December. I have also provided such evidence on the basis of the commissioners' instructions. First, the promoter requires to clarify that, although the existing bill plans are based on the 1846 plan in their preparation, the exact boundaries were finalised using the experience and knowledge of Mr Guest as a qualified, severe and experienced commissioner. On 11 December 2017, my attention was drawn by your clerk to an archival website called Scotland's Places, where copies of the following documents that you have before you can be viewed. This was the first time that the promoter was aware of those documents and that they were available and could be examined. Those documents are a copy of the 1848 plan, a copy of the book of reference and expense, dated 1847 and a copy of the estimate of increased value, dated 1851. Those are the three documents that the promoters were unaware were available. Having checked the 1848 plan against the 1846 plan, it was noted that those were substantially the same, although the 1848 plan is certified as having been adjusted for the 1846 act. I say that that may be the one that we should use, but I will be returning to this point when I consider Mr Simon's latest submission, which I have just seen earlier this morning. After the promoters gave evidence on 13 December 2017, my attention was drawn by your clerk to a submission by Mr Simon, dated 12 December 2017, which provided for an assessment of benefited land having regard to all three of those documents that I have just mentioned. A copy of Mr Simon's submission was subject to a preliminary examination, and Mr Geist arranged to meet Mr Simon and a meeting that Julie took place between them on 20 December 2017. At that meeting, the potential for an amendment of the existing bill plans became clear in the light of those newly available documents. I then called your clerk on 20 December 2017 to advise him of the matter. I, in fact, spoke with him on 21 December and summarised the outcome of the meeting between Mr Simon and Mr Geist. It is vitally important that the replacement plan is as accurate as it can be. The commissioners have therefore sought an opinion of council on the correct interpretation of the 1846 act, which has been circulated today and sent to your clerk on Monday of this week. In particular, the commissioners have asked council to provide advice as to how the 1846 act defines land in respect of which assessments are made in order that the commissioners can provide detailed instructions to their surveyors for drawing up replacement plans to identify benefited land for the purposes of the bill. As you will note, council examined the 1848 plan, the copy book of reference, an estimate of expense and the copy estimate of increased value, copies of which you have before you. Council's opinion describes the broad purposes of the act, which included the provision of powers to the commissioners to undertake works to the power and to appoint surveyors to undertake an accurate survey of the land's adjacent to the power. A plan and book of reference were to be made. Once the works were completed, the commissioners were to complete a second survey in order to establish the extent to which the land had increased in value as a consequence of those works. All of the expense of the works were to be recovered by way of an assessment raised and levied on the owners of the land. That is in summary the way in which the 1846 act operates. Council's opinion indicates limitations inherent in the work that was done in 1846. Whilst the schedule of land and valuations would allow one to know the extent of the land, no precise boundary lines are given in the sense of a red line. Council states that there are no consistent red line identification of the boundaries that has benefited from the work and therefore professional judgment is therefore required in establishing precisely the red line. Council notes that some buildings appear on the 1848 plan and is in a reasonable inference that they would not be benefited as they would not have been built on a site that was affected by drainage problems. It is therefore the promoter's intention to exclude such buildings. Further, Council notes that the penultimate page of the report accompanying the book of reference states that the works to dollary farm should be excluded because of an agreement made between the then owner and the commissioners. For this reason, the promoter wishes to adhere to that approach. Council is clear that, in drawing up the replacement plans to identify benefited land, the promoter's surveyors must have regard to the 1848 plan, copy book of reference and estimate of expense and the copy of estimate of increased value and the buildings that existed in 1846 and that the dollary lands ought to be excluded. Council advises that, where there are ambiguities, it would be reasonable to resolve those by reference to what can be ascertained on the ground. Council has further identified three residential properties at Nethermains of Gorthy that are required to be included in the replacement plans, together with a house at Mill Hill, and notification will be required for those new heritors. It is important to make it clear that, while the 1846 act identifies land that has been improved as a result of works to the pow and provides for valuations on what I will describe as a plot by plot basis, the pow bill uses the land that was improved under the 1846 act as a proxy for identifying the red line for the benefited land in the current pow bill. The pow bill does not provide individual assessments on a plot by plot basis, but uses valuations based on the categories of land that are used, such as agricultural, commercial, woodland, residential and amenity. If the committee are content with the methodology, it is the promoter's intention to instruct Mr Willard in particular to draw up the replacement plans, in line with the methodology that was endorsed by Council. Mr Guest will be involved in that exercise also. From a preliminary assessment, there will be four residential properties that require now to be included and notified. That is the three houses at Nethermains of Gorthy and one at Mill Hill. There will also be further agricultural land, including land at Nethermains of Gorthy that requires to be included and notified. Some agricultural land will now be excluded. There will be no change to the residential benefited land at Balgowen. I would add that, having looked at the plans again, it is also considered that there will be an additional requirement to notify the owners of amenity land at Balgowen, but in terms of amenity land, no such assessment is made against amenity land. It is a nil assessment. We have been given a copy of Mr Simon's submission only this morning and have not had time to fully digest it, but my broad take on what he is saying about Council's opinion is that he is broadly endorsing that. I think that the last sentence of his comments is of some significance, because he refers to a yet further plan, an 1851 plan, which he says is currently unavailable. That is not something that the promoters were aware of, nor was I until we saw that this morning. In terms of dealing with that, it is important that the promoters urgently contact the national records office to see if that plan is throwing up any different situation. It is expected that it will be following the 1848 plan, perhaps with some minor adjustments, but beyond that, not having seen it, we cannot comment. I would finish by repeating the promoters and my own sincere apologies and we await your questions. Thank you very much, Mr McKee, and I apologise that I truly noted and accepted. Clearly, there has been a significant oversight and omission in this process. What I want to clarify, Mr McKee, and perhaps Mr Gess would be best to answer this, but Mr McKee stated that promoters were unaware that plans were available. I just want to clarify if there was any knowledge that there had been other plans in existence, but there was a belief that they were no longer available. I want to clarify if there was a known unknown of an unknown unknown. I think that the act itself does make a reference to those documents. It is clear from the act that those documents were prepared. That is the first thing that I would say about it, but I defer to Mr Gess as far as I know the promoters' position that we do not know that those were available. It was known that there were other plans. I had seen the plans that I made in copies of the 1846 plan, but I had not seen any of the other documents. If I had done, I would have taken them into account. Were you aware of them with existence or potential in existence? In the sense that they were referred to in the 1846 act, I have never seen them. To clarify, you were aware that there were other land plans in existence. I am only aware of the words in the 1846 act, but that is 170 years ago. I have never seen those plans. Simply all that I want to clarify, Mr Gess, is that you were aware that other plans had been prepared or could potentially have been prepared, which was to be consistent with the act, but you did not see those plans and did you make any attempts to find out if those plans were in existence or accessible? I had seen the plan that Mr Murray, who used to own Dollary, had. I had seen that one and I had seen a photocopy of that plan. That was the extent of the plans that I had seen. In regard to those plans that have subsequently been brought to light, to clarify, you were aware of their existence, but you had not studied them in any detail and you had not incorporated them? I had seen the plan. The plan that I had seen was the one that Mr Murray, who used to own Dollary, had. That is the only actual original plan from the 1846 act that I had seen and that I was aware of. Those plans that have been brought to light by Mr Simon, you were unaware of their existence. I was unaware that they still existed. They still existed. Were you aware of them having ever existed? In the sense that they referred to in the act, to that extent, I was aware. You were aware that there were plans, in addition to what had been used in the preparation of the bill, but you did not bring that to the committee's attention? I have learnt quite a bit going through the process. I was not quite fully aware at that time of the different versions of the plan that were produced in 1846. I thought that there was one plan To clarify, as a promoter, you were aware that there were documents that would impact upon who was eligible for assessment. You were aware of their existence, but you did not bring that forward to the committee. Is that correct? I was not aware at that time that there were different versions of the plan dating back from 1846. I thought that there was one plan. There were different copies of the plan, but they were all essentially the same. I was not aware that the plans had been adjusted in that time. As far as I was concerned, my understanding was that there was one plan, and then there were schedules that defined the areas on that plan that benefited. I was not aware that there were different versions of that plan. You were aware that there were multiple plans, but you believed that they did not differ from each other? I think that, thinking about it, in 1846, they did not have photocopying machines. Somebody would have produced the original survey plan, showing all the fields that might benefit from the improvements that would be carried out. Further copies would be produced by tracing over it, so it is quite possible that there would have been more copies, because somebody would have traced over it and produced another copy of the plan. I was not aware that those other copies would be any different from the first one. When you make reference to being aware of plans mentioned in the act, in addition to the plan that was submitted originally, can you clarify what you mean by that? Well, in the sense that the act refers to plans produced at different dates. Can you clarify to the committee how many plans does the original act refer to? Well, it refers to—I have not got it in front of me now, but I think that it is the 1846 act. My understanding was that there was a plan produced before the works were carried out, and there was another plan that was probably the same plan adjusted—well, it would have been the same plan adjusted—produced after the works were carried out. What plan have the promoters based a bill on? The one that Tony Murray of Dollery has. What plan is that? That is the four works that were carried out. So you were aware of it as a plan after the works were carried out, which has been stated as changing the definition of the plan. I do not think that the plan—I think that my understanding was that the post-works plan was simply the first plan modified by the schedules that identified which fields on the 1846 plan had benefited from the work carried out. So it was not simply a case of it being a tracing exercise, it was a plan— The plans that I have seen all basically show the same fields. You have got to read the two together. You have got the plan and the schedule. It is not—as Alasdair McEar has told you, the plans do not have a red line going around them saying that this is the benefited area. The plans show the fields in which the 1846 plan shows the fields in which there was the potential for an improvement, and then there is a schedule that shows the fields in which there was an actual improvement as following the survey's inspection after the works were carried out. So those two plans should be a complementary in the issue that Ben Macintosh said together. They have got to be read with the schedule. Okay. Does the bill that is put forward by the promoters refer to both of those plans? Our bill? Yes. I do not think that it does now. So there are two bills that have to be understood as complementary, but the bill—there are two plans that are a bit understood as complementary, but the bill only refers to one plan. Am I understanding that correctly? In a sense, this bill is a fresh start, so it refers to a plan. I do not think that the bill, which is before you, specifies where that bill comes from in the text of the bill. It just simply says that these are the land plans. Okay. I do not think that it would be unfair to say that there seems to be some ambiguity. Are you aware of any other land plans— For the current bill? No. Yes. Are they pertinent to the current bill? I do not think so, no. Other than the bill—other than a subsequent plan— Other than the plans that we have produced and which we have been working on up till now, I am not aware of any other plans. Sir, if I can move to the same truck— Obviously, we have Mr Simon this morning making reference to an 1851 plan. So it was an 1851 plan just to clarify that. So we now know of an additional plan that could potentially impact upon the definition of benefiting land and who-headed stars. Is that correct? That is correct. Okay. I suspect that the 1851 plan will be a fair copy of the 1848 plan, which we have seen online. Essentially, the 1846 plan, and then referenced to the schedules that were produced after the works that were carried out, is the same plan. It has just got a docket on it in the top left-hand corner, so it is the same plan. I suspect that the 1851 plan will be that plan, but excluding the fields that did not benefit. Okay. Do you see what I mean? Are you aware of any other plans in addition to the 1851 plan? And not unless something else? Is there another rabbit that comes out of the hat? No, I don't know. Given the rabbits that have been coming out of the hat with alarming regularity, have you undertaken any work to establish if there are any further plans? I think that following this meeting, the promoters will be making urgent contact with the national record office to obtain a copy of the 1851 plan. Mr Simon seems to be very knowledgeable about those matters, and clearly, in any methodology going forward, I think that the promoters would like to liaise with Mr Simon in that regard. I don't know how Mr Simon became aware of that. He could have mentioned that in his last two or three submissions, but he's obviously mentioned it at the last minute today. Had he drawn it to our attention last week, you may say why I rely on Mr Simon. We're not necessarily relying on Mr Simon, but he seems to be someone who has not inconsiderable local knowledge. However, I think that there needs to be a serious effort on the part of the promoter to make sure that there is nothing out there that could then contradict, shall we say, the 1851 plan once we've looked at it. That seems eminently sensible, but I imagine that that would have been in the correct course of action before introducing the bill. Why was that work not undertaken? We simply weren't aware of it. Is there anything else you're not aware of? How do I know, as you're going, that it comes down to the known unknowns and the unknown unknowns? So, if you're aware of those things that you might not have been aware of, why was work not undertaken prior to the introduction of this bill to establish? Why was there not contact made with the relevant records office? Why was research not commissioned? With hindsight, that would have been the correct course of action. That's why we're here apologising for the error, convener. No, I appreciate that. My concern is that, had this not come to light in this bill, we would have become an act. Hindsight is all very well, but it's not that effective if something's unnatural, Vic. Mary, did you want to come in? No, I've answered the question. I mean, I think that it's also a fair to say that adjusting these plans will obviously make them correct and all the rest of it, but I think that the financial implications of these adjustments will be very minor. There will be one or two people who pay a bit more, but I think that for the vast bulk of people, the practical consequences of it will be pretty likely to be pretty small. I appreciate that, but for those who know four new editors, it is significant. Well, it will be three new heritors because one of them is an existing heritor. Okay. Just another point that I want you to pick up on in this issue of the dollary area. Can you shed some light on why this has been excluded? When preparing the plans, which we have prepared to date, and the schedule of heritors, obviously we looked at the existing schedule of heritors, which, as you know, does not include dollary. The reason for that has now been confirmed when you look at the book of reference, which specifically refers to the exclusion of dollary. I was understood that that was for the simple practical reason that the POW improvement works in 1846 could not have been carried out without the active co-operation of dollary. Dollary is the key point in the whole POW. Between the source of the power at Methford Moss and Dollary Bridge, the fall is insignificant. Well, it actually is down to about the Muckleburn, which is just upstream from Dollary. The fall, the power is to all intents and purposes, is flat and it runs through very soft soils. When you get to just upstream of the Dollary Bridge, you get into hard sandstone. The ground levels rise quite significantly. When the POW was improved in 1846, it had to dig through the sandstone rock at Dollary in order to let the water through from all the flat ground upstream. In 1995, we did further improvements to the POW at Dollary to improve the drainage upstream. Those are photographs that I took at the time. If you look through the photographs, you will see that the work carried out was very significant. We took out a huge depth of rock, large amounts of pretty unsuitable stuff. In order to dispose of the material, we had to dig pits in the fields on either side to bury the rock and then cover it over with soil. Now, we were only able to do this through the goodwill of Mr Murray, who then owned Dollary and whose forebars owned Dollary in 1846. We were totally dependent on his goodwill. He received no compensation and no payment for that at all. The bill seeks to give permission to the commissioners, as the previous act does, for access to people's property to carry out maintenance. Why is it for the owner of a Dollary that it is their goodwill and why is it a legal requirement for other heritors? If we had gone along and said to Mr Murray that we want to come through your estate and dig up large amounts of rock and bury them in the fields, I think that we would have had some difficulty. I hope that it is Mr Murray's estate. I hope that it is not very big. It is a couple hundred acres. It is a house with some nice parkland and a few fields around it. How many acres does an average resident in the Bulgarian estate have? Well, I appreciate a much smaller area, so it is a question of power. But it is also when you look at the land, when you go there, because it seems to me that it was two classes of people. When you look at the land, I know that the 1846 plan shows it as being potentially improved, but when you go and look at it, it is grassland that slopes down on a steep gradient towards the power. I appreciate the significance and the importance of that land. That is a question about rights. Why is an exception being made? Because I do not honestly think that the land of Dollary actually benefits from the power of toll. I think that it is the other way around. I think that he has provided all the other people in the valley with a great benefit in allowing his land to be done through his land. I understand greatly the assessment that the plan suggests that the land does benefit Dollary. Is that what the land is? I agree that that is what the 1846 plan shows, but your statement does not benefit. You go and look at it. What I am keen to understand is that there is land that is identified as benefitted, which in your opinion you are saying is not, so you are contradicting the plans. Why is that any different from an object that is saying that their land in the Bulgarian is not benefitted, if it is just an opinion? I am going to answer that. The 1846 original plans did show that there was ground benefitted by the improvements. There was then a note added by the surveyor, which the council picked up on, which says in the plans—I am not sure of the exact place—that, while they did benefit from it, that benefit could have been achieved without the vast cost that was spent on the power. That could have been achieved for them very simply by draining into an area that ran freely itself. It was decided at that time and written into the legal documentation at the time that, while they had benefited, they did not require the expense of maintaining the power to get that benefit. That was what our council picked up on when he gave the opinion that it was right that it did not pay an on-going payment. In that specific regard, there are ultimately classes of people who benefit the land. A key issue that has been previously raised is, for example, the distinction between water that drains in from agricultural land, which is soil on it, and the water that is injected into the power from the Bulgarian estate. You have suggested in previous evidence sessions that everyone benefits. Now you are saying that there are different classifications of benefit, and that has to be reflected to the extent where someone in the dolly estate can be exempted entirely. Is that not inconsistent? If you look at the opinion of council at the bottom of page 2 in paragraph 4, you can see that three lines up starts with the word in there. In addition, it should be noted that the penultimate page of the report accompanying the book of reference, which is one of the legal documents that we have circulated this morning, states that the severe had not botioned any part of the estimated expense of the works to Mr Murray of Dollery because of an agreement between him and the Committee of Heritors, which had promoted the bill, which provided that he was not to be liable for any part of the expenses. I understand your argument, and it is one of fairness, but what we are saying is that the promoters are attempting to follow the 1846 act and use that as a proxy for identifying benefited land, and to follow that would therefore mean that Dollery would be excluded. Is the bill in the clauses to repeal the 1846 act? Yes, I appreciate that, yes. I will ask him what is the argument in justification for the Tainless Perversion. The very 1846 act says, I must also state that I have prepared the plans for the works in terms of that agreement, the effect of which is that the amount of the expense of the works has been very considerably increased above what is necessary for the purposes of the drainage or expedient for Mr Murray's own interest, he says. I am wanting to establish why the promoters think that a deal that was agreed, which I know is a minute of the meeting of that deal, is of a contract that we can refer to. It is in the book of reference. I am just reading a few. The nature of it, the trade, is of a type that is in perpetuity, because what is the justification for the process that is contained within it? It is in the book of reference. Why should that be preserved into the new act? The promoters' position is that it is using the identification of, shall we call it, benefited land, the red line from the 1846 act, which we accept is going to be repealed, but we are using that red line for the purposes of the power bill plans. The red line for the purposes of the 1846 act excludes the lands at Dollary because of the agreement that you referred to. We are simply following what was done before. You might say, why do that? Why not do something different now? I understand your point. I appreciate that, but there are lots of things from the previous act that you are not wishing to continue. That is hence the purpose of bringing this forward. You have not argued that the land at Dollary is not benefited. Indeed, you have argued that there is other land that is benefited in the residential areas that should be subject to those charges. Why, in principle, would you wish to maintain that provision? Was there any reason of it being simply just... Just in the right way. It seems the right thing to do. It seems the right thing to do, so that is the opinion of the promoters. I mean, if we are following the 1846 plans, we should be consistent. That is the basis on which they were done. I think that the promoter will consider the direction of the questioning and maybe revert back in the statement if we make it. For some helpful clarification, substantial work has been done at Dollary. Indeed, the day that we came to visit, we stopped at Dollary bridge and we saw the degree to which work had been carried out, so substantial work has been carried out at Dollary. That work being carried out was that with the permission of Mr Murray? It was long access as well. It involves putting a lot of spoil into his fields. Had no work been done at Dollary, what would the impact of being on Mr Murray's property? If the work had not been done, he would not have had to put up with all that disturbance and mess. The power going upstream would be... We have been able to deepen the power going upstream by about two foot. It does not sound much, but it is very significant. We had considerable benefit. Everybody upstream, right the way up to Belgar. If no work at all had been done at Dollary, it would have had absolutely no impact on Mr Murray. No, I do not think that it would have had... You do not think that... It would have just... What I know, he would have... He derived no benefit from the work that we did in 1995 at all, none at all. The aim of that bridge? Does he have any upstream? I think that it is all downstream of that bridge. So, you are saying that the land at Dollary is not benefited, so the land plans are wrong then in stating that it is benefited? There is a section below the bridge that is drawn in differently from the benefited land above, and it is benefited, and the note with it says that that benefit could have been achieved without the expense of doing up the pay. Mr Simons estimates that expense is over a million pounds in today's money of the 1846 act, and the note says that he could have achieved that without going to the huge expense that was done. I presume a simple drain would have done it. While he did benefit, he did not need to spend all that money to benefit him, was the key reason the original surveyor uses for leaving him out of the assessment. So, he benefits in some way? He does. If he could have benefited without spending the money, then he must benefit from the work that is done. He does show that there is some benefit there, but it does not require the huge on-going expense to obtain that benefit. There is a fundamental problem here. In previous evidence, benefited land and non-benefit land has been a binary distinction. Now this is not. This is ambiguous. It comes from the original data. We have looked much harder at it now, and that is what it says. Our initial response has been to carry it forward. As Alasdair says, we are capable of reconsidering. Can I accept this? Is it the promoter's permission that there is good variations of benefited land, that some land is more benefited than others within the overall category of benefited land? Is that the position of the promoters? That is the position of the 1846 thing. Yes, so we intended to bring that forward. So, for any, when they did the issue to suggest, for example, that they believe their property is less benefited than another, while still being benefited within that benefit land, they have a valid point? Is not more or less benefited, it is benefited at zero cost or benefited at ongoing expense. I would be happy to say that to any of the householders, that all of us who are apart from Dollary, have to spend money to maintain our benefit. The distinction made for him 150 years ago was that he did not have to spend money to benefit. Okay, well, again, those reference, I guess, spoke about 170 years ago, these things spoke about 150 years ago. Why should this week continue forward? Does it seem fair, inequitable and reasonable? To me it does. Can I just ask if you had any discussion with Mr Murray about the potential for him to... He doesn't own the house anymore, he sold it about two years ago. Whoever now owns the house, have you had any discussion? Not at all, never met him. About the potential, no discussion? None at all. Not occur to you to meet with them to discuss the work that's done in the access issues? We never, it's never necessary to do any work done in that section of the power, unless the only time we've done, I mean, I've been doing the power for 30 years, the only time we've ever done any work down there was in 1995 when we did that work, which was entirely for the benefit of the people upstream. But there's a potential that you could be required to do what there in the future? Very, very unlikely, because it goes through a hard rock channel, and the usual reason for doing improvements is because you get the banks slipping in. It's a rock channel there. We've, in 30 years, it's the only time we've ever done any work there. And at no time did the commissioners consider it good practice to speak to the new owner to say... This is the function of the power. He's not a heritor, we have no... He's not a heritor, you see, at the moment. I've been listening, excuse me, to everything that's been said this morning, and I have to say I think we're going round in circles here. We have 1846, and I heard what you said about Dollary and Mr Murray not being able to... Well, being able to do the different work, which therefore didn't feed into the power, therefore you're regarding him nowadays, is not benefited, is that correct? You know, I think we need to drill down here. He's either benefited or he's not benefited. In my view, he doesn't benefit, no, it's all the way round. Currently he doesn't benefit, so nowadays he doesn't benefit. No, it's all the way round. We have benefited hugely from... I heard that and I understand that, but I think what Tom Arthur is trying to get at is in 1846, obviously someone deemed him benefited, so therefore wrote in that he therefore wouldn't have to contribute because of him being gracious and allowing you on to the land. What we're trying to establish now is we don't think that that's actually acceptable to come forward to us now in 2018 and say he didn't benefit or whether he did benefit in 1846, but because he was so gracious to let us on to the land, he therefore doesn't have to pay, we need to translate that and be very clear. In 2018, does he benefit or does he not benefit? And if he does, in any shape or form, benefit, then I think we're really coming from the perspective then in modern days terms he should therefore be included in this calculation. In 1846, in 2018, does he benefit or does he not? Is there a simple answer? If you're looking at it practically, I would say he doesn't. If you look at the photographs, you'll see there's a 12ft deep rock channel that goes through the plan. I can see all that. I can see all that. I just want to hear from you. If we're using the original plans and the definition is benefit or not, then he's in. If that's the answer, I think that we're basically saying you need to look at that again quite frankly. If I can just be correct, Mr Grayson's opinion is that dollar is benefited. I guess that opinion is that it is not. We used the map from the 1846, which we are attending to do then or 1848 as the definition, then in that definition he is in. Can we move on now to the issue of increasing the cost because all of the new work that will need to be done, redrawing of plans, will add a substantial cost? Do you have any figure for how much this is going to cost going forward? I'm going to start on behalf of Savils who are undergoing the remapping, because I was wedding the remapping at no cost to the commissioners or to the power. So there'll be no additional cost to the heritors? Not from Savils, no. What's the commission's view and the commissioners' view? Will there be any additional cost to the heritors from the delay in processing this bill through Parliament? You've had to take for the legal advice. There will be some additional legal fees, yes. Do you have any idea how much that will be? I wouldn't like to give a figure here that could be wrong. But it will be several thousand pounds, yes. In the council opinion, is that included in that figure? Yes. The original intention, I believe, was to allow a three-year period to collect all the monies. Have you given thought to perhaps increasing that, to recoup the monies? Not at this stage, no. We still have a forward budget that says we can get on track in three years. Obviously, we haven't got to the end of the process yet, but we're still on track. Is there a particular reason that Savils are doing this at no cost? So the original mapping exercise was undertaken and we accept that there was errors in mapping the exact path of the 1846 plan and so we're going back to rectify those by following the correct boundaries this time around. When you did the original piece of work, did you try to do any research or check to see if that was the correct plan to use because we've heard about 1846, 1848, we've now heard about 1851. There may be other plans. What did you do to satisfy yourself that you were using the correct plan? I apologise. I wasn't involved in the original mapping exercise of the first plan, but it was a colleague of mine who, a former colleague who no longer works for Savils, who undertook that exercise. What was used was the 1846, the photocopy of the 1846 plan and then the local knowledge of an expertise of Mr Guest. The other issue that is of a concern to the committee, Mr Simon seems to have had very little difficulty in finding additional plans and drawing up different land plans and deciding who should benefit and who shouldn't benefit. It would appear on the face of it that he is not a heritor. I struggle to understand how Mr Simon has been able to do all of this research and to find all of those additional plans. None of the commissioners or the promoters of the bill have been able to find them. Do you have anything that can reassure us that you are absolutely confident that you have not missed anything else or is there any explanation as to why Mr Simon can find us and you are unable to? Mr Simon is an academic who has made a particular study and interest in this sort of thing and he has got plenty of time to devote to it. As he said to himself when we met him, he is something of a perfectionist. We had to find those, because certainly as a layperson I did not understand the act well enough and the steps that we have taken this time is to get someone else to interpret the act for us to get a council to give us proper advice of exactly what the schedules are, how they all fit together and to bring that to you so that we really are certain this time that we are following the correct methodology and have turned up all the information that we need to find. You did not take legal advice at the start of this process? We had lots of legal advice but this seems to be the ultimate that we can do to make sure that it is right. Can I come back to your point that you made when you said that Mr Simon is an academic and a bit of an expert? Given that you have spent 20-30 years walking the Pau and you have a deeply personal and professional interest in the Pau, as do you, Mr Reeson, would you not consider yourselves to be experts on the Pau? I think that I am a reasonable practical expert but I am not an academic and I am not somebody who looks at archived material in national archives on a regular basis. Given that you were undertaking quite a substantial exercise to update the 1846 legislation, I would have considered that you would have made sure that you had every I dotted and every T crossed before you got to a point where you produced a piece of legislation or proposed a piece of legislation. To me that would mean doing all your research, ensuring that you were using the right plan and ensuring that there was nothing else there. I struggle to understand why you did not do that. When we started this exercise over three years ago, we were looking to produce a workable practical plan rather than something that was legally perfect. That was probably the misunderstanding. However, it has to be legally perfect to go through the Parliament. Yes, but in the sense that the Parliament can adopt any plan and it is then legally perfect. It is the basis on which the plan is produced, does not it? It is the evidence base that you use. No, carry on. I think that we acknowledged that the original plans were based on the 1846 plan, which was a photocopy, but there was too much subjectivity put into them and local knowledge adapted to them. Following Mr Simon's revelations, we have acknowledged that this is an area that we have been weakening and pouring. We intend to liaise with Mr Simon and speak with him to find out what his sources work with him to ascertain that the 1851 plan now is the final plan that should be followed. We are going to map that to the boundaries of the red-line boundary as far as we can tell from the 1851 plan. Any areas of subjectivity will be used as an element of local knowledge and expertise. We will look at Mr Simon's opinions on it and that will be reported. Any area of subjectivity will be documented and highlighted to yourselves. We think that that is the best way forward and to rectify what has been a mistake on our part. What work will you undertake to ensure that the evidence that Mr Simon has now brought to life is accurate and correct? First of all, we need to have sight of the 1851 plan, have a look at making sure that it is authentic and in a workable condition, and then we will do our independent research along with Mr Simon's input to ascertain that there are no further plans. The 1846 act refers to the 1846 plan, the 1848 plan and the 1851 plan. There are no other plans referred to in that act. I am just looking for confirmation of as far as— That would be the case, but that is something that we need to absolutely— Absolutely. When you said that you were looking for Mr Simon's input to ensure that the 1851 plan is the last or latest plan, I am keen to understand what work your firm will be doing to establish that that is the latest plan. Surely you are not going to rely on Mr Simon, because Mr Simon could say that there was a plan in 1871 or 1881? No, but we will do our own research and contact at the national archives and do the appropriate due diligence before we confirm the final version of the plan. The committee would like to see the evidence of how you establish the latest version of the plan to base any further work that you do. How long do you think that all of this is going to take? Considering just this morning that we have been told about the 1851 plan, we need to factor in some time to have sight of that. Following that, the mapping exercise that we consider to take no longer than four weeks. Just finally, I would be interested in Mr Greerson's Mr Guest and Mr McKee's view on this. Do you accept that this latest—I suppose that episode is probably the only word that I can really use—that has come to light has damaged the credibility of the commissioners among the heritors? It must have done, yes. What steps will you take to repair that damage? The first thing is to get it right, get the map right. That is the most important thing to get that in the end. Then, after that, it is contact with people, isn't it? Do you intend setting up meetings with all the heritors? How will you communicate the change in the plan? How will you explain to them if there are any discrepancies and who benefits and who does not? We do not have a plan for that at the present moment. Obviously, we are aware that we have to communicate with people who are going to be affected. There has to be another process started. Are you sure that you need to communicate with all the heritors? I would say that there is definitely something that has to happen. Yes, as I said, we have not got that far-made decision. Take advice on that if there is a process required. Mr Guest, do you have any additional comments? I think that it would be very helpful for the committee to see a document that is said in the plans of how to engage with the heritors. I think that it would be exceptionally helpful as well to see some kind of documented approach that the commission intends to take to ensure that there are no other relevant documents that have been overlooked in that process. I think that there has to be a great deal of work and it has to be further, because what we cannot risk is getting to the end of a process where another set of maps are composed to discover that there are additional maps that have not then come to light. I think that it is essential that the promoters can bring forward evidence of how we are going to ensure that that will be the case. There is another point that I want to mention before, but I accept that it is the path that promoters wish to go down. However, it does seem incredibly complicated and fraught with risk. Have promoters given any thought to a new 2018 assessment that, using modern techniques and standards, everyone can have confidence in, rather than relying on documentation, which is 170 or 160 years old and potentially other documents that come to light? I have discussed the possibility with the chairman of the drainage association and he tells me that this is a service that they provide from time to time in defining the benefited areas for arterial water courses at eternal drainage boards in England and Wales. That is another possibility. Previously, it has been suggested that cost would be inhibitive. Has that stole a view? I am going to be seeing Mr Thompson tomorrow and I could discuss that with him. I believe that the cost might not be that prohibitive. In terms of the assessment, it would be viewed to provide a complete up-to-date picture of what land is benefited and what land is not benefited. That would be something that could produce using modern techniques, digitised, easily accessible and, most importantly, something that all heritors can have confidence in. Is that what the aspiration would be to achieve? I am still under the opinion that that would be very, very hard to achieve. I do not think that we have no basis to instruct someone as to how to define the edge of benefited land. Anyone we appoint to do that needs a basis to work from, and the only basis that we can give him is the evidence from the past. I am seeing Mr Thompson, who is the chairman of the Association of Rangel Authorities, tomorrow. He happens to be up here and I have not met him before when I was going to see him. I could discuss with him whether, when I have spoken to him on the phone, he has told me that that is a service that the Association provides to members. Would you be willing to date the committee to share the outcomes of that meeting? As you know, we now have a third of all heritors of the Balgown residents have expressed unhappiness with the bill. I want to know the promoter's response to their submissions and particularly the issues that are raised relating to the residential heritors only being charged at the higher rate based on the footprint of their house and their gardens being charged at the same rate as fields. The current proposal is that the way in which residential properties would be assessed is that the notional area of their plot would be five times the footprint of the house and there would be nothing on any surplus. Any surplus would be treated as a community land, which, in effect, has a nil value. Significant costs have so far been incurred in developing a bill that protects and respects the commissioner's position. Is it reasonable for the commission to object on grounds of cost to doing a proper reassessment of the benefited land that we have been discussing and that the aim should be to achieve a bill that is fair and acceptable to the residential heritors, as well as to the farmers? We definitely are in favour of finding a system of apportioning our costs that is fair, transparent and agreed by all, and so far we have given it our best attempt. Do you think that you are concerned that so many heritors, now with them being a third of the total number, have expressed such levels of concern and unhappiness with the bill? It is obviously a setback. The main point in that letter seems to be about double charging, which in speaking to people at the development seems to be what they are talking to me about. It is their belief that, if Scottish Water were to take over the sewage works, it would then get charged on their council tax, as well as the pay commission's costs. They consider that double charging. We do not consider that double charging in that we do not see any overlap in our services. Scottish Water would be processing dirty water, treating it and releasing it into the POW, and it is our job to take it uphill out of the catchment. Unfortunately, we think that Scottish Water's charges are charges that are applicable all over the country, and the POW, for people living in the POW-benefited area, is an additional charge that we think it is fair and reasonable to consider. The people on the manor kingdom development, their properties are connected to the wastewater treatment works, and at the moment that is being run by the developer or the developer's successors at no charge. If you compare their situation with all the other people who have residential properties on benefited land who have septic tanks, they pay the power assessment, and they also pay the costs of maintaining and emptying their septic tanks. To get a septic tank emptied costs about £250. If the septic tank needs to be replaced, a typical septic tank for domestic property would cost you between £3,000 and £4,000 to replace. Those costs have to be met entirely by the house owner, so they are paying the cost of their sewage treatment, so to speak, and the power commission for their outfall. If the manor kingdom residents end up having to pay power assessment for the outfall and the council tax supplement for the maintenance of the sewage works, it seems to me that they are in exactly the same position. It would be inconsistent if they did not pay the power assessment when you compare them with the people who have septic tanks. That is fine. I move on to the rights of appeal. I would like to ask a couple of questions. While noting that the two proposed rights of appeal are one for 10 or more heritors and the other for individual heritors in circumstances where the budget is 60,000 or greater, is that the latter is stated as being index linked? I would just like to ask what index are you actually referring to here? What index would you use? Would either be CPI or RPI, would it not? Well, is that what it is? I can't remember which it is. What is it, David? It's just a general proposal. There's no final decision on which index to... It's just a recognition that it would need to be index linked, but it wasn't a final decision on which index it would be. I cannot comment on that. Right to the committee and let us know whether it's RPI or CPI, please. Okay, and the proposed amendment to the bill states that if there is an appeal, the extent will decide what the budget should be. No, the expert, sorry, will decide what the budget should be. How will they actually do that, rather than only being able to assess if the proposed work is necessary and the cost is reasonable? Well, we had in mind that the expert, one of the reasons that I'm seeing Mr Thompson tomorrow, is that Ada frequently provides experts to adjudicate in exactly these situations. Right, okay, so you're looking to find the expert, okay? Yeah. That's fine. Do the commissioners know that they are paying a reasonable amount? How do the commissioners know that they are going to be paying a reasonable amount for cleaning and repair contract if you're not actually testing it in the market by going out to get quotes? Now, I do know we've discussed this in the past and I do appreciate what you're saying about the person who's been doing it historically, has the economies of scale, et cetera, and is that, you know, good at doing the job, but… You know, the surveyor is, I mean, we instruct contractors to do other works on in other situations, so we're aware of what the typical hourly rates are for a man on an excavator and we're aware of what the typical rates are for cleaning ditches and so forth. We can see very quickly whether they're comfortable. Yes, you can see, but I think in light of the fact that you now have a third of the heritors unhappy with what the process is, et cetera, do you see where I'm coming from from whereas it might actually be helpful to actually have, you know, put it out, not necessarily put it out to tender, but actually to achieve quotes so that then you're actually in a position where you can turn round to anyone who's complaining and saying, we're paying some sort of x, but here are some quotes. I guess like getting quotes from people if I know that they're not going to get the work, it doesn't seem fair. Well, I think that's a system of quotes nowadays, they might actually come in to do the job, Mr Guest, and therefore potentially win the quote. The maintenance of the power depends to a large extent on co-operation and the goodwill of all the farmers and owners through whose land it passes, and having somebody who knows them all and understands how they work and can organise the work to fit in with the operation of their farms is extremely helpful. And if we parachute in somebody who just happens to be a cheap chap with a digger who doesn't know anybody and doesn't understand how the farms work, it would be difficult. My point is not parachuting anyone in who might be undercutting somebody. My point to you is you're now in a position where you're no longer dealing with the farmers, et cetera, along the line. You're now dealing with 31 heritors who are extremely unhappy with the process. These people might not have the farming background or the knowledge of how things work, and I appreciate what you've described to me is in farming how things probably do work. I feel it would be appropriate for you to actually seek quotes so that you are keeping yourself right in the eyes of those people, so that you can turn round and say, we're paying him this because it would cost that elsewhere. That's my point. I don't know whether that's a matter for the bill or whether it's just good practice from the point of view of the survey. Well, I certainly think that it's good practice. Thank you. I think that I'll pass back to Tom now. That's fine, sorry. I'll take one, Mary. The Manor Kingdom residents pay in total about a third of the budget that is collected along the pow, and there has been a proposal for one commissioner to come to represent the residents from Manor Kingdom. There has been a suggestion that, given that they pay a third, they should have three commissioners. I'd be interested in your review on that. Is that something you would consider allowing Manor Kingdom three commissioners? We thought two was sufficient. We did start at one, and it was drawn to our attention. Each section would then have two commissioners each. It seems about the right place to be. They pay a third of the amount. Two seemed about right. Is it something you would consider? Three. Well, it would need other changes. We would need to look at the quorum again. When we moved from one to two, we looked at the quorum numbers. If we're going to look at changing again, we'll have to see what that does to the group. When you say we, are you talking about the original commissioners that are there? I presume so, yes. Yes. The commissioners, it's a decision for the commissioners, I suppose, because it's put forward another amendment. Is it? I think also, I'm past experience. Okay, there'll be an initial rush of enthusiasm, hopefully, when this is enacted. In the years ahead, I think you might struggle to find three commissioners. But you don't know that, and you don't know what will happen in the future. I accept that you can say in the past that this has been the situation, but you don't know what will happen in the future. Clearly, there is an interest from the residents of the Balgaon estate to become more involved. Surely, from the point of view of increasing the openness and transparency of how this all operates, it would be good to have more people involved. There is, I believe, a Balgaon community group. Have you spoken to them? I've been to one of their meetings. Yes, I've spoken to them. They had a residence association. It relied, I believe, on funding, which isn't there any longer. I think that, in their correspondence, they mentioned if they got together another association, would we be interested in communicating with it? Yes, we would. So, in the past, have they been fairly active? They were briefly very active for a year or so, and I think that it's not so active now. Okay, thank you. Thank you. Okay. Just as a general question about engagement, has any progress been made regarding the website and other communication? No, that's not something that we are looking to tackle until after the bill was enacted and we have some money. No, I appreciate that. I think that also it's not a data protection issue, because we've discussed that there would be a requirement in the bill for us to publish information on the website, which would enable us to be totally transparent. Yes, so I wasn't suggesting a website in the form where this bill to be enacted. It was simply as if in terms of a means of keeping heritors and people affected up to date. I think that it would be a very good thing, and it would simplify the administration future. Yes. I think that we've discussed before. It was just in terms of the kind of on-going communication through the bill process. That was purely... I think that we touched on the issue of wastewater treatment and double charging. I might have touched on that already, but just to confirm for the record the understanding of who owns the wastewater works. I think that it still belongs to the success of the manor kingdom. I think that all the amenity land within the manor kingdom development, including that durian treatment, belongs to. Avent homes have taken over from manor kingdom. It's manor kingdom who's changed the name to Avent homes. Thank you for that. That concludes questioning from committee. Would the promoters like to make a concluding statement or any final remarks? I would like to thank the promoters and their associates for attending. Clearly, there's a lot to consider going forward and a lot to reflect on. For the committee, we will obviously be waiting for an outcome of the mapping exercise, correspondence regarding Mr Guest's meeting with the Draining Association regarding a potential future assessment and correspondence regarding other matters, including, for example, which indexation the commission would be seeking to use. Clearly, the correspondence on a mapping and potential future assessments will help to inform our understanding of the commission's position in regard to the dollary area. However, I remain for me to say just to thank the promoters for coming along today and to suspend this meeting briefly until our witnesses to leave. The second item on our agenda today is to consider the three objections to the bill. Given the evidence that we have heard this morning regarding the land plans, I propose that we defer for reconsideration of the objections until the situation with the land plans has been clarified. Are we agreed? Thank you. Given the circumstances that we have now found ourselves, the date of the next meeting of the committee is not yet known and will be notified to the committee's website once confirmed. With that, I close this meeting.