 The first item of business this afternoon is a debate on motion 8.649, in the name of Tom Arthur, on the Poweth and Chaffrey Drainage Commission Scotland Bill. I would ask all those members who wish to speak in the debate to press their request to speak buttons now, and I call on Tom Arthur to speak to and move the motion on behalf of the Poweth and Chaffrey Drainage Commission Scotland Bill. I am pleased to open the preliminary stage debate on the Poweth and Chaffrey Drainage Commission Scotland Bill. You could be forgiving for thinking that this may be a dry and technical subject, but I can assure you that the poweth is literally anything but dry and has a rich history which involves no less a figure than King Robert the Bruce. Before I dive into the poweth in detail, I would like to thank all those who engaged with us and also the other committee members, Alison Harris and Mary Fee for their hard work. I also wish to put on in the record the committee's thanks to the clerks and space for their invaluable support. This is a private bill that was introduced on 17 March 2017. A private bill is introduced by an outside promoter and makes specific changes to the law affecting the promoter rather than changing the public and general law. This bill is promoted by the Poweth and Chaffrey Drainage Commission, which has responsibility for the arrangements, management, maintenance and improvement of the poweth. For anyone wondering what a poweth is, I will explain shortly. Anyone who considers that a private bill would adversely affect their interests can formally object to the bill and three admissible objections were lodged. None were rejected at preliminary stage, so all will be considered in detail should the bill progress to consideration stage. The objections helped to inform our scrutiny, which saw the committee take evidence from the promoters on two occasions. We questioned them not only on comments and concerns raised in the objections, but also on a wide range of written submissions, including from the Scottish Government, Scottish Natural Heritage and the Scottish Environment Protection Agency. Before I set out some of the areas of concern, I will explain what the poweth of Chaffrey is. Poweth is a Scots word, meaning a ditch or slow running stream or channel of water. The Poweth in Chaffrey provides drainage to approximately 1,930 acres of surrounding land near Creef and Perfynconross and is equivalent of 13.7 miles long. However, land at drains is defined as benefited land in the bill, and those who own land or property there are called heritors and must pay the commission a share of its annual budget for the upkeep of the pow. The origins of the pow date back to the 13th century, and further work was carried out in 1314 at the behest of King Robert the Bruce. It was first put on a statutory footing in 1696 in the old Scots Parliament, and that act was updated in 1846 at Westminster, given the commissioners greater power to carry out works and improvements and making provisions for the costs of works to be shared amongst landowners. The commission now wants to be placed in the 1846 act with something fit for purpose so that it can carry out its responsibilities more effectively in the future and ensure that there is a fair and proportionate system for calculating the annual assessments heritors must pay. Historically, the pow has been managed by the owners of the agricultural land surrounding it. It was never envisaged that the benefited land would include a large number of residential properties, but due to centuries of drainage work, some land was made suitable for development and a new housing estate was built in the Balgaon area. Some older properties were also redeveloped for residential use. Most of Rose's residents are already liable to pay the commission for the upkeep of the pow, and the remainder will be made liable by the bill. The issue of which land benefits, who should pay, how much they should pay and the balance of power between the commission and the heritors are at the heart of many of the concerns that are expressed to us in the committee. Much revolves around the commission's annual budget, as that determines what individual heritors will pay. The committee therefore spent some time clarifying what the historic budget of the commission had been and what factors could impact future budgets. On request, the promoters provided the committee details of the budget between 2004 and 2016. The budget has varied from under £3,000 to over £30,000 in that period, with an average annual budget of £14,609. My colleague, Mary Fee, will talk more about the future budgets of the commission, and Alison Harris will set out views on the need for a right of appeal and how prospective promoters are made aware of the pow. However, I will highlight a couple of other issues before I close. The committee has satisfied that maintenance of the pow is required and that a body is needed to manage that. It is clear that Perffincon Ross Council, SEPA and Scottish Water either have no interest in taking that role or have no locus to do so. Therefore, the commission needs to continue, and it is appropriate that its work is funded by those who benefit. However, the balance of power between the commission and heritors needs careful consideration, and I will briefly give some examples. There are currently six commissioners, two each for the lower, middle and upper sections, with no commissioner for the Baal-Gaun section of the pow. The bill proposes changing this to allow a Baal-Gaun area commissioner and seven commissioners in total. However, we noted that, as approximately 73 per cent of heritors live in the Baal-Gaun section, it does not seem appropriate for them to be represented by one commissioner out of seven. As a result of our questioning, the promoters have agreed in principle to bring forward amendments to allow two Baal-Gaun commissioners, leading to eight in total. The commission also supported the committee's preliminary suggestions to allow easier termination of a commissioner's appointment and to make it possible for a majority of heritors to dismiss a commissioner from their section. We also discussed whether the method set out in the bill for calculating annual assessments was fair and proportionate, particularly in terms of heritors who may be asset rich but income poor and may live in modest houses on larger land plots for historic reasons. Should the bill proceed, we will discuss seeds and other issues with the objectors and promoters, with a view to bringing forward amendments to the bill, if appropriate. Overall, we support the general principles of the bill, and while we have identified some issues that need to be resolved at consideration stage, we are confident that sensible compromises can be found. Officer, I therefore am happy to move the motion in my name. Thank you very much. I now call on the minister, Paul Wheelhouse, to speak. Thank you, Presiding Officer. I am going to briefly speak on behalf of the Scottish Government. Some private bills are straightforward, as the preliminary stage report shows. That is not a straightforward bill. I congratulate the committee for its evident hard work in scrutinising the bill. On the rights of appeal, the committee's report says, and I quote here, the committee is concerned about the lack of a right of appeal in the bill, especially given the issues that are identified regarding the potential for the annual budget to increase substantially and unchecked. The 1846 act contains an appeals process for assessments to be appealed to the sheriff. If the bill is to stand the test of time, then it seems prudent for it to contain proportionate appeals and dispute resolution procedures for those that it affects. The committee also does not believe judicial review, which is a potentially expensive form of court action, has to be heard in the court of session, and Edinburgh will be a realistic option for most heritors. It goes on to say, and I quote again, should the bill proceed to consideration stage, the committee will discuss the issue with the promoters and objectors. It is the committee's preliminary view that the bill may need to be amended to ensure appropriate and proportionate appeal and dispute resolution mechanisms are put in place. The Scottish Government agrees with the committee's view that the bill may need to be amended to ensure appropriate and proportionate appeal and dispute resolution mechanisms are put in place, and the Scottish Government is happy to work further with the committee as required to ensure that appropriate amendments come forward to put that into effect. Thank you, and I now call on Mary Fee. Can I begin by thanking the convener, Tom Arthur, for moving the motion? As we heard from Tom Arthur, how the annual budget will be determined each year is key to our considerations, because that's how each heritor's individual charge will be calculated. The committee identified three factors that could have a significant impact on future budgets. The first is the fact that the cleaning and repair of the power has been put on hold to focus on the bill. The second is the costs of the private bill and finally the fact that there are now beavers in the power, which may cause damage and so need to be managed. I will speak a little bit more about each of those factors. The promoters have confirmed that no work to clean or repair the power has been undertaken since 2014, as funds have been instead set aside for the preparation and promotion of this bill. The committee has asked what implications there are for the power due to lack of maintenance or repairs over the past two years. The committee has heard that there would be a backlog and there was already evidence of work being required in certain parts of the power, which, if left unattended, could increase the risk of flooding. That maintenance work would be a priority once the bill has passed. The implications of that for heritors is another cost that will need to be recouped from them by the commission. The bill states that any promotion costs of the bill, not recovered under the 1846 act, will be added to future annual budgets and therefore will be paid for by all heritors. The bill states that those costs can be spread out over the next three years, so that is another potentially substantial increase to the budget in those years. Then there is the issue of the beavers. The committee heard that beavers had been illegally released into the area some 10 years ago and have caused significant problems. As the convener mentioned in his opening speech, the committee members undertook a fact-finding visit to the pow on 8 September and on this visit I saw for myself some of the damage that beavers have caused to sections along the pow. The commission is now faced with having to manage the beavers in order to minimise or prevent further damage. We heard that the commission was in discussions with Scottish National Heritage about a trial beaver exclusion area. The commissioners contacted a contractor who proposed a design for a barrier. However, the cost was around £42,000 and the commission was looking to the Scottish National Heritage to fund the barriers in full. The committee has recently heard that, for reasons of cost and of complexity, Scottish natural heritage will not be pursuing those trials at this stage, which leaves the commissioners with the issue of how best to manage the beavers in the pow. Whatever steps the commission takes to manage the beaver population in the pow, it is likely that there will be a resulting cost, which will be added to the annual budget, perhaps over a number of years. It is the heritors, including the commissioners of course, who will have to pay for this in their annual contributions. The committee notes that all of those factors—the cost of promoting the bill, the backlog of clearing and repair and the potential costs of beaver protection—could increase the annual budgets and, therefore, the heritors' contributions considerably. That is why we concluded that, in order to future proof the bill, added safeguards are required to protect heritors from excessive budget increases. Safegards such as appropriate and proportionate appeal and dispute resolution mechanisms. Should the bill pass the consideration stage, we will make sure that those issues are discussed further with the promoters and with the objectors. One of the other issues that we examined was the non-payment of assessments by some heritors. We saw clarification on that, and it was confirmed that there are unpaid contributions amounting to debts of £21,480, dating back to 2012. After considering the issue, the promoters confirmed that, while the bill gave them the option of pursuing the debts, at a meeting of the commission on 15 August, it was decided that historic debts will be written off and not pursued. One reason that was given for that decision was that the potential costs of pursuing outstanding debts could be more than the amount owed. However, the promoters also confirmed that any future debts will be pursued by the commission through the courts. It does seem therefore that all the heritors under the bill, including the 20 new heritors, could face higher charges than would otherwise be the case, as a result of some previous heritors not paying and that debt now being written off. It is also clear that any heritors not paying from now on could face court action. Objections and written submissions have claimed that this is not fair, and that should the bill proceed, we will pursue that further at consideration stage. Finally, in closing, the committee will continue to closely monitor those areas of concern at consideration stage to ensure fairness to the heritors going forward. Thank you very much. No one else has asked to speak in the debate. I therefore call Alison Harris to close. I also would like to thank the convener Tom Arthur and Mary Fee for their contributions. Currently, there is nothing in the bill to prevent the commission's budget and therefore heritors' charges rising substantially. There is a right for heritors to make representations to a surveyor if changes are proposed to the values used to calculate annual assessments or to the land categories. However, that is not the same as a right of appeal. Under the 1846 act, heritors have the right to appeal to the commission and then to the court if they are not satisfied with their assessments. However, that right has not been carried forward in the bill nor does it contain any right of appeal for heritors to challenge the budget. The issue was raised in objections and written submissions, including by the Scottish Government, which stated that it would seem preferable to replicate existing appeal rights in the new bill. The promoters told the committee that a right of appeal was not included because the values that underpin the calculation of the annual assessments are set out in the bill. The only variable factor is the budget. There is less scope for challenge to this bill compared to the 1846 act. The bill provides for a cost-effective proportionate system for all and the costs of appeals would have to be shared out among the heritors. Finally, because a judicial review remains an option of last resort. However, the committee remained concerned about the lack of a right of appeal for heritors and asked the promoters to reflect further. The promoters suggested amending the bill to ensure that when heritors are given 21 days to make representations to the commissioners about the proposed budget, the commissioners would have to take any comments into account when finalising the budget. Pushed further by the committee, the promoters then made a further suggestion of providing a right of appeal to an independent expert, but only in circumstances where 10 or more heritors wished to appeal. The promoters stressed that this was not their preferred option and cautioned that such a process could delay the setting of the annual budget and lead to the budget being set at higher levels and being less accurate. They also cautioned that any appeals could result whether successful or not in higher rather than lower individual assessment for heritors, as legal costs of the appeal would need to be shared out among all heritors. The issue clearly needs further thought, and should the bill proceed to consideration stage, we will discuss it with the promoters and objectors. It is the committee's view at this stage that the bill may need to be amended to ensure that an appeal mechanism is put in place. Another issue that came to light during our scrutiny was that some prospective purchasers are not made aware of the pow and the obligations to make payments to the commission. The commission told us, in its view, that there are already satisfactory methods in place for notifying prospective purchasers, including the home report, the survey, the standard misives, the property inquiry certificate and the recently launched scotless, a new online land and property service that is launched by the registers of Scotland. However, we still think that more needs to be done should the bill be passed to alert prospective purchasers to, firstly, the pow's existence, secondly, its purpose and thirdly, the requirement to make annual payments to the commission. We identified potential changes to the bill that could help, such as requiring the land plans and new register of heritors to be published. The promoters were sympathetic to those suggestions, and should the bill proceed to the next stage, we consider those issues further with the promoters and objectors and bring forward amendments, if necessary. In addition to that, more needs to be done outwith the bill to help prospective purchasers. The promoters told the committee that companies that provide inquiry certificates are prepared to make specific reference to the pow in them. In our report, we asked the promoters to provide the committee with written confirmation of this. We also recommend that the promoters liaise with Perth and Kinross Council to ensure that any certificates that they issue make reference to the pow. We also recommend that the promoters engage with the registers of Scotland to explore how and when relevant information can be included in scotless. The promoters told us that they intend to launch a website that could include an easy online mechanism for owners to notify the commission of land and property sales. Such a website should not just help with the issue but improve communication all round. As the convener has said, the committee supports the general principles of the bill, and after thorough preliminary stage scrutiny, we have a clear picture of the issues that need to be examined further with the objectors and promoters at the consideration stage. Should Parliament agree today that the bill should proceed to that stage, thank you. Thank you very much. That concludes the preliminary stage debate on the pow of Enchafrae Drainage Commission Scotland bill. We will move on to the next item of business.