 Good morning, and welcome to the seventh meeting of the Pow and The Ventrachfree Drainage Commission's Scotland Bill Committee in 2017. The first item on our agenda today is to consider whether to take item 3 and future considerations of evidence and of our consideration stage report in private. Are we agreed? Agreed. Thank you. The second item on our agenda today is to take evidence on the objections to the bill, and I welcome everybody to the meeting today. Of the three objectors, only Tom Davis is in attendance today. Neither Mr Burris nor Mr and Mrs Beesham are able to attend. The committee is grateful to the promoters for providing a new written submission ahead of this meeting. Before we proceed, as this is an unfamiliar process to most of us, and I include the committee in that as well, I will briefly explain it and how the meeting will proceed. There are two distinct phases to consideration stage. The first phase, which begins today, involves us meeting in a quasi-judicial capacity to consider and dispose of the objections, and the second phase will see the committee meet in a legislative capacity to consider and dispose of any amendments lodged to the bill and to consider each section, schedule and the long title of the bill. At today's meeting, the objector and promoters will have the opportunity to set out their arguments and to test those arguments through cross-examination. I, as convener, will manage those proceedings. The committee will predominantly listen to both sides but make a minute times to seek clarification on an issue or to help move things along. The committee may also highlight issues made in the other two objections, given that those objectors are not present today. I will first invite Tom Davis to set out the points that he wishes to make in relation to his objections. The promoters will then have an opportunity to cross-examine. After that, the roles will be reversed, so the promoters will respond to the points made in the objections and make any other points. Mr Davis will have an opportunity to cross-examine the promoters. Either party can make a reference to or respond to points made in the issues raised by the other objectors who are not in attendance today. Once we reach the end of the session, there will be an opportunity for each party to make a brief closing statement. The committee will then reflect on what we have heard and come to a view when we meet on Wednesday, 17 January 2018. We will now move to the formal evidence session, and I encourage all speakers to be as concise as possible. I invite Tom Davis to open proceedings by setting out the points that he wishes to make regarding his objection. Mr Davis. Can I just mention a week? The promoter has prepared some papers for everyone here. They are public papers that I would intend to be using for questioning Mr Davis. I don't know if just now would be a suitable time to distribute them, or do you want to do it after Mr Davis has spoken it out? Certainly. If you wish to do it this now, so Christine is not interrupted. If I could just briefly introduce those papers. There is an inventory that goes with those papers, but they are just for the convenience of everyone really, so we can get through the matters quickly and effectively this morning. Okay. Thank you very much, Mr McKee. Mr Davis, I invite you to go ahead. Thank you. First, I apologise for my lateness this morning. Having three small children in the house often jeopardises your plans to attempt to leave, and that was no different this morning, I am sure that as many of us are aware. I have drafted my thoughts in notes, and I will read from those, and I will be as concise as I possibly can. I would like to thank the committee for inviting me to give evidence to this session. This is something that is new to me. I have not done this before, but as I said, I have gathered my thoughts in my notes, and I will refer to these throughout the meeting. I would also like to acknowledge the work and knowledge both Joe Gess and Hugh Grierson have undertaken, and the commitment to the maintenance of their land. Similarly, I take responsibility to protect my, in comparison, very modest ownership seriously, which is why I am sitting here today and setting out my objection. I live in my property. I would eat in a square with my wife and three small children, having moved there in 2010 after living in Dunblane for some time. I was unaware of the pow when we moved in and the 1846 act. However, like the committee, I have become very familiar with the pow. It is purpose, some of its history, associated with its inception, construction and subsequent maintenance. I am not a farmer or a landowner like Joe and Hugh. However, I have worked in a land-based industry for over 20 years, dealing with land use change on a fairly significant scale, with the consequential effects on the water environment. Whilst I am not a hydrologist nor pretend to be an expert on such matters, I have knowledge and experience of drainage and flooding matters. I want to move on to my objection in detail, and I will do so. However, before I do that, I just wish to make some broad points of summary, and then I will go through my objection in detail. I maintain my objection to the bill and believe that it requires substantial amendments before it could be considered acceptable to be passed into law. I consider the proposed bill to be unfair, disproportionate, lacking any evidence base, and will confer significant power onto a small group of landowners who are very much the minority of those covered by the bill. There appear to be two very different types of people affected by this bill. The landowners who run businesses on their land undertaking a range of agricultural activity supported by Government subsidy, and the householders who own very modest plots of land and likely have no or little knowledge or interest in land management issues. I believe that this is a key problem in this bill and the process up to today. We have two very differing types of owners, yet the bill attempts a one-size-fits-all approach. My understanding is that 73% of the heritors live on Balgaon estate, therefore I am part of the majority. The valuation amounts under the current act, amounts of approximately £20,000 per year. The Balgaon householders were charged £8,100. This is 40% of the total amount. So me and my neighbours make up 73% of the heritors and are charged 40% of the total cost, yet the balance of power in the bill is retained by a small group of landowners. I would now like to address in detail my objection and reasons for it. The bill details the land which is identified as those which benefit from the power. I believe there needs to be a complete and detailed reassessment of the benefited lands. This needs to be completed so it is clear who benefits and how they benefit. Only once this is done can the cost of the identified benefit be calculated. The promoter has stated that they consider the original survey of 1846 remains valid in terms of identifying the benefited lands. I disagree with this. There are three very obvious changes since 1846 which have affected the power and I'll detail those briefly. Firstly there have been housing developments in the vicinity of the power since 1846 with varying degrees of mitigation. For example the Balgaon housing state was only constructed after the land was built up. That means the land, the level of land was raised and the committee would have seen this at the site visit we undertook. The Balgaon houses are obviously higher than the top of the power bank and the fields immediately opposite the power, the fields upstream and the fields downstream. Secondly the agricultural practice has changed radically since 1846 and the benefits and impacts of the agricultural practice is now very different. For example intensive plowing of the fields will have a greater impact on the power and significant volumes of silt entering the power after plowing takes place. The third change that has happened since 1846 is the power itself has changed significantly. For example the lowering of the bed at Dollry Bridge in 1995 and the committee may remember this is the bridge we stopped at during the site visit on the public road where we looked over the bridge and there was a tremendous drop much higher than we expected. It was also the location where we had to dodge the cars as they drove over the bridge. You might remember that was certainly grained in my memory. The note for the heritage meeting on 2 March 2015 details the changes to the power since 1846 and I quote from that document. The availability of powerful 360 degree excavators has enabled the power to be significantly improved particularly over the last 25 years. The landscape has changed radically since 1846 and therefore a new assessment is required to see who benefits and how they benefit. On consideration I have come to the conclusion that my property has no direct benefit from the power and therefore it should be removed from the benefited lands in the Bill. I do not have any direct relationship with the power and I do not have any direct benefit therefore I believe my property should be removed from the benefited land and I should not be charged. I also believe that there are numerous other properties which also do not have a direct relationship with the power and should also be removed gyda'r lland. I do not release anything into the pow. There is no discharge from my property that goes directly into the pow. I release no foul drainage into the pow, and I don't release any surface water into the pow. I wish to stress this point for the committee. I do not release anything into the pow and I have, I believe, no direct relationship with it. Therefore, I ask why am I included and why am I to be charged. I appreciate those points may open up for some questions later on, and we'll discuss it later, but I just want to move on and I'll continue with explaining my objection. In respect of flooding, I believe I do not benefit from any flood protection from the pow. I have repeatedly made this point and to date, no evidence or information has been provided to prove me wrong in my assessment. In fact, the SEPA flood map surely close how my house is not considered in a flood risk zone. The commission has stated over and over again that my house is at risk from flooding, yet have not provided any evidence to support this position. I have reached the conclusion that there is no evidence to support this statement. Therefore, the question remains, why was it said in the first place? To summarise this part of my objection, I believe my home should be removed from the benefit of lands as I do not release anything into the pow, nor is my home at risk from flooding. These appear to be the two benefits identified by the bill, yet they do not affect my house directly. Therefore, I should not be charged nor should many of my neighbours in both new and old Balgown who equally do not benefit directly. How can I be charged for something I don't do? The second part of my objection I wish to explain relates to funding and specifically a cap on an increase to the annual charge. I wish to state that this is only relevant for me if my property is included in the benefited lands, which as I've stated that I don't believe it should be. The second part of my objection, as I said, is on the annual payments. I maintain that a cap should exist to stop significant increases of annual power charges. This has largely fuelled my objection by the balance of power in the bill and how all the power will be reserved to a small group of landowners and secondly the lack of transparency over funding and costs. The bill will allow a small group of landowners the ability to increase my annual charge to whatever they see fit without any reference to me. I will have no control over what I will be asked to pay and I will have no ability to review the costs let alone challenge it, which I believe is fundamentally wrong. I understand that the residents of Balgown equate to 73% of the heritors yet we, the majority, will be told what to pay and have to blindly accept this, which I believe is unfair. There appears to be a lack of transparency in the process and there's no protection against conflicts of interest and there appears to be no provision for securing the best possible deal for any of the heritors through a fair and open tendering process of the work. Therefore I'm deeply worried about what charges will be added to my annual bill. I wish to make the point that for landowners and their farm businesses the power charges are business expense and therefore will ultimately reduce their tax burden. However I do not have this luxury nor can I claim the VAT back unlike many of the farms should they be VAT registered. While the potential sums talked about at this stage may be low in the future there is the potential that the commission wishes to create a very large reserve of funds and I will have to keep paying. Or they may wish to undertake some very large capital work such as bank reinforcement which may be unnecessary and I would have to keep paying. There is no protection for me against the wishes of the land only commissioners and their desires for their land. I will have to subsidise the landowners for the works on their land which may or may not be needed and I would not be able to challenge this. It will be decided amongst the commissioners who happen to be the farmers who benefit the most. I do not believe this to be fair and I believe it to be wrong. The bill is highly vulnerable to the whims of future commissioners which may be entirely inappropriate and highly expensive, works which cost everyone but which are not needed. As I just conclude that my thoughts on that part of my objection, I wish to say that that is not a comment on any of the existing commissioners just about future proofing. The last point of my objection, the third point related to previously unpaid bills and I maintain my view that as the 1846 Actors to be repealed and replaced, calculations under that bill are none avoid and therefore these costs shouldn't be pursued. That concludes my explanation of my objection and the three key points with detail relating to why I objected. Thank you for listening to those points and I am happy to take questions and be examined on that. Thank you Mr Davis. I now invite the promoters to pose their questions to Mr Davis. Thank you Mr Davis. Can I just check that you have an inventory of papers before you, the one that was circulated a moment ago. First, can you confirm that you are the owner of Five Eden Square, Balgaon? I can confirm that I am the owner of Five Eden Square, Balgaon, Alexander McKeith. I think that you live there with your family. I do indeed. If we could just turn to document number two in the inventory, you can have that. In the top left hand corner we see that this is a land plan referred to in the power bill and it's entitled Balgaon Houses, part one of one. Can you confirm that your property, Five Eden Square, is within that area, coloured purple or the large area, coloured purple? Indeed, it is. Thank you. If you could then turn briefly to the next document in your inventory, which is again a plan, which is number three, which shows the Balgaon area in a little bit more detail. Can you see Eden Square in almost the north centre of that plan? I'm familiar with the location of my house. Can you see a number 35 on that plan? Is that your property? No. Number 33. Your number 33? Is that 33? Sorry, I can't see my glasses. The one that you're looking at is the pink one, which is south of the square. No, no, no. The green one north of the square. I don't live in number 15. I see it in the green one north of the square. That's appreciated. I'll write the opposite of the pattern. Turning to page nine of the agenda papers, if we could have that before us. You've got a copy of the agenda, do you? Yup. I think you say in here that when you first moved into five Eden Square, you were unaware of the nature of the pow, nor were you aware of the requirement to contribute towards its maintenance. Is that correct? That's correct. Could you then look at document six in the inventory, please, which is your title deed or copy of your title deed? That's document six, and if you could turn to page, I think it's page 16 of this document. Do you have that before you, Mr Hayes? Page 16 of 23. That's correct, yes. If you could go to about one, two, three, four, five lines up, it starts with 11 and then it says drainage all plots. Do you see that? Struggling to identify that just at the moment. Yeah, so it's page 16, one, two, three, four, five lines up from the bottom. Oh yeah, point 11. Right, you see 11. Could you just read that sentence, please? For the benefit of everyone here, I'll read it for it. Yup, drainage all plots shall jointly pay an equal one-fifty-fourth share of the annual drainage levy due to the power of and chaffery drainage conditions in relation to the use of the power of and chaffery for the drainage of the development. Do you wish me to go on or shall I stop there? Just continue for a bit, yes for that. If and to the extent required by the proprietor of the development and amenity ground payment shall we made to the proprietor of the development and amenity ground who will then collect and forward such payments to the power of and chaffery drainage commissioners. Right. Just pause there. So I think your position initially was that you were unaware of the nature of the power nor of the requirement to contribute towards its maintenance. Now may we agree that that specific charge was included in your title deeds when you bought your property? Yeah, I acknowledge that and I've never disagreed with the fact that you may well be in my title deeds. How is it then that you were unaware of it if it's in your title deeds? I think that would be a discussion between me and my solicitor at the time who was acting for me when I was under the property because I didn't read my title deeds and you could not say that that was a mistake on my behalf. However, I trusted my legal representative to do that for me. It wasn't alerted to me at the time. I wasn't aware of it until I received the first bill. And when you bought your property it was never disclosed to you by the previous owner? Well, I was the first owner of the property. You were the first owner of the property, were you? I distinctly remember a discussion with a vendor. I asked specifically if there's any annual charges. I expect they thought it related to maintenance charges but it was never identified to me at that point. Now, two points just in terms of the paragraph you've read out. May we agree that the reference for the charge, what the charge is for, is for drainage. It does use the word drainage. I know that you've made some statements about flooding but can we agree that this charge, per your title deed, is about drainage? There are statements made about flooding but they weren't made by me in the first place, they were made by the commission. I'm less interested and we can go to that later but for the purposes of this title deed may we agree that the reference in terms of the charge being made by the commissioners on your property relates to drainage? I would not dispute what it says in the deed. May we also agree that there's no statement of any cap being placed on that charge in your title deed? The deeds are clear for everyone to see, it doesn't appear that there's a statement of a cap. When did you become aware of the charge, Mr Davis? I don't recollect a specific date, Mr McKee, but I would imagine it was around about the time I received the first bill, which I would understand would be when I moved in in July 2010, probably midpoint 2011. I don't recollect the exact date. Do you recollect what the charge was, how much the charge was for? No. If I advise you that it was £150, would that joggy for me at all? Yes, of course it was different. That rate then, so it's probably about 175 inclusive of that. Have you been paying the annual charge? I have paid some, but not all. How much have you paid towards the... I don't recollect the figure of my exact payment. From the records that I've established from the commissioners' solicitors, McCash and Hunter, they show that you are £620 in arrears on your annual charge of £150 plus fat. They say that you paid £100 towards the 2016 assessment, but he has not paid in the years 2014, 2015 or 2017. Might that be correct? That might be correct. Your written evidence is that you've come to understand the nature of the power, why it's needed and you accept that there should be a charge for it. Given that you accept that and you accept the principle of paying, why have you not contributed any further sums? Firstly, I went to two points into your comment, Mr McKee. Firstly, I have come to a different conclusion following the original submission of my objection that my property benefits from drainage. I don't believe that to be the case, though I don't believe it directly benefits from drainage. The reason for not paying is set out in my objection that I have objected for exactly the same reasons as I have chosen not to pay at times because I don't believe that it's fair, proportionate, evidence-based. I don't believe I have any direct relationship with the power. We'll come to that in a moment. Just staying with the theme of how much this might cost you and what the annual charges would be. Could you now have a look at document 4, which is a schedule that the commissioners have supplied to the Parliament on the Parliament's website? If we look down the property down to number 33, which is your property, that's 5 Eden Square, that's correct, isn't it? Yep, that's where I live. Now, just looking across to what the new assessment would be for your property, this is on the basis of an average out £20,000 annual assessment. We see that your charge would be £16.90. Can you see that? I can see that. Do you have any comment to make on that? I'm not aware of any of these figures or nor have I seen evaluation because that wasn't included in the original notes relating to the submission of the bill early this year. I appreciate that this may come as news to you but this has been on the Parliament's website for some time. It's information that the commissioners have been giving to the committee. I think that your position is that you haven't… Well, this spreadsheet has been… This spreadsheet, yes. Well, I was unaware of that but thank you for pointing it out to me, Mr McKee. Now, if you look at the next schedule, which is document 5, and if we do the same exercise and we look down at property number 33, which is 5 Eden Square, we see the… And this again is based on a £20,000 annual assessment. We see a draft new assessment on your property of £51.51. Now, maybe just to explain that the commissioners have actually carried out a further exercise to smooth out the potential effects of properties which have a relatively large garden to house size. So they've put this through a multiplier but under this new kind of method of assessment for a £20,000 annual charge, your annual charge comes out at £51.43. Now, what's your reaction to that compared to your current charge which is being levied against you? Appreciate you haven't paid it for £150? Well, there are two very different amounts and I presume that these are charges based upon the current assessment of the requirements of the PAL. They are based upon the assessments under the PAL bill, yes. Yes, so the requirement for current work under the PAL. Yes. Well, that's helpful to know. Thank you for bringing that to my attention. I'm just interested in your reaction. You're up at £150 under the old arrangements, shall we say, because you don't agree with them, but under the new arrangement you're at £51. I acknowledge that. I haven't done the calculations. I'm not aware of how those calculations have come about and I don't know what the methodology behind them is, nor do I know the assessments of the methodology. I'm being advised that the calculations are obviously on the chart, but I appreciate that you may have had time to look at that. It's the first time that you've looked at it. Can we agree that you're arguably getting something of a bargain from what your previous position was at £150 to your position going forward at £51? The point of my objection is not necessarily about the money, it's actually about the point of principle. Let's turn to some of those principles. You will know that the promoter has stated in evidence, both orally and in writing, that the basis for identifying benefited land in the PAL is the original survey prepared in 1846. I think that your position is that you want a reassessment done because you don't trust it, you don't rely on it. I don't believe that I have any direct relationship with the PAL. That's why I don't. Let's see if you do. If you could turn to document 8 in the inventory, which is a copy of the original survey plan that accompanied the 1846 act, if you can open that plan out in some length. If you open it out fully, because I think it's actually the last unfolding that we have the Balgauin section. Can you see where there's a red arrow? I can spot that. That was put on by me. Now, immediately above that, may we agree that that area showing a series of enclosures is Balgauin? It's not possible to identify detail because this is neither an upstate map or it doesn't have any georeferences on it, so I'd have to assume that that might be the case. There's no detail here to suggest that this is the location, but I'll take your word for it that it is. We can take evidence from Mr Guest on that if you dispute it. I don't dispute it, but I just point out that it's not easy to identify exactly where Balgauin is on this map. I'll go back to document number two, which is the parliamentary plans that were derived from this original survey plan. I'm putting to you, Mr Davis, that that Balgauin area is the area that is indicated by that arrow. I wouldn't... It's not... Well, what is that arrow indicating? I don't want to make it be a point of difficult because I think it's perhaps just not helpful, but it's not clear exactly where Balgauin is on this map. We'll have to take that in evidence in chief from Mr Guest. If one assumes that the 1846 original plan was accurate and it was used for the purposes of an active parliament, why should the commissioners go to the very significant cost and the expense of undertaking a reassessment? Mapping has changed something quite significantly since 1846 and the accuracy of maps has changed quite significantly since 1846. I had to question whether this map is indeed accurate and where the location of Balgauin is on this map. That said, if we assume that your orange red arrow is the north-south-west corner of Balgauin, then it would appear Balgauin sits somewhere in that area. However, my point, which I made earlier on, is that when the houses were constructed there was mitigation associated with the development of that property and the land was built up. Therefore, the houses weren't built directly on to this assumed location, but the land was changed. My point is that the reassessment of the land is required because since 1846 there have been three very significant changes, one of which is the mitigation associated with the housing development of Balgauin. The most significant change has been the introduction of housing in this area, particularly around the Balgauin area. I think that there has been a number of changes and I wouldn't be able to identify which is the most significant. You are saying that the land in which or the land platform in which your development has been built was raised. May we still agree that the surface water drainage from that whole development still flows into the pow? I don't know. You don't know? That is the position of the promoter that it does. It is at a higher level than the pow, isn't it? When the surface water drainage leaves my property it goes on to someone else's ownership and I don't know what happens with it thereafter. We will have to agree to disagree. May we agree that there is a waterworks that has been built for serving your development? Indeed, there has been. May we agree that that waterworks ultimately outfalls into the pow? I don't know. All I know is that it leaves my property and then it goes on to someone else's ownership. If we assume that your surface water drainage and your outfall from your sewerage system flows into the pow, might we agree that you are benefited by the pow? I don't believe that I have any direct relationship with the pow nor any direct benefit. Sorry to say that I don't agree on that point. If your property drains directly into the pow and your sewerage system, we know that politicians have seen it, but they came to look at it and I think that you are on the site. That drains into the pow. Is it not the case that you are living on land that is benefited by the pow? Who owns the sewerage system? You tell me. I don't own a sewerage system. I believe that it is in private ownership, isn't it? I understand it is owned by Beth Holmes, who took on Manor Kingdom, who was the previous builder of my property. The sewerage and drainage leaves my property and thereafter it goes into the community sewerage system. I don't know any detail about that. It then goes on to the ownership of someone into the property of someone else. I do not know what they do with it. I do not know how they treat it. I do not know where it goes and therefore I don't have any direct relationship with the pow. You do not know the answer to the question, but can we agree that, at least when your title deed was being prepared, those who drafted it were aware that you did receive some drainage benefits from the pow because it is in your title deed? It may be my title deed and in accordance with the 1846 act, however, we are moving on. That is going to be repealed and we are moving on to a new act and therefore I think it is appropriate to consider what the points are would be under the new act and therefore I am raising my objection. The water leaves my property, foul water drainage, and it goes elsewhere. It doesn't go directly into the pow. I don't know where it goes. I assume it goes into the drainage network. Let's just for the sake of it, assume it goes indirectly into the pow. You're still receiving a benefit from the pow, aren't you? I think the important point is that the detail is quite critical to my statement at the beginning of my objection. I do not own the sewerage works. I do not really send anything into the pow. You're releasing something into the waterworks which then goes into the pow. Yes, but it's not up to me when it's released into the pow or who it's released into the pow. For all I know they put in tankers and take it away. I don't know what happens with it. It goes into the treatment works and then it's entirely up to the owner. I don't own the treatment works therefore I have no control over what happens when it goes to the treatment works and what happens to it afterwards. So I have no direct relationship with the pow on that basis. When the water lands in your garden on your roof, the surface water runs off your house, it's at a higher level than the pow. Is it reasonable to assume that it ends up in the pow? I own 192 square metres of land. I have a small garden at the back of my property which, excuse me, I'll just find my notes for this so I can explain my thinking on this. Let's say I own 192 square metres. That's 0.192 of a hectare, 0.47 acres. Mr Joe and Hugh obviously own a significant mass more as do all the farmers. Part of that is my garden, probably 20 to 30 square metres maybe. A lot of the water will be dealt with through interception and transpiration of the plants in the garden. And then the water that drains from the roof into the drainage and the gutters into the drainage, soak away, goes into the communal drainage system. It then leaves my property and I don't know where it goes. I can only assume it goes into a communal drainage or sewerage system, but I have no control over what happens to it once it leaves my property. What do you think would happen, for example, if the water works and does have a dependency on the pow? The surface water drainage from your property does have a dependence on the pow. What happens if the commissioners stopped maintaining the pow? There was a problem that in some way meant that the surface water wouldn't drain from your property, the sewerage system wouldn't work. Wouldn't you want that to be repaired? Don't you have a dependency on the commissioners? The water research from my house goes into the systems under other organisations or people's ownership. I would imagine those who choose to release water into the pow would want to take that up with the commission. If they don't release anything into the pow, I don't have any direct relationship with the pow, nor do I have any direct relationship with the commissioners. You have a direct contractual relationship because it's in your title deeds. I think it's important to get to the detail of what actually happens, which I appreciate that you're wanting to do. I don't dispute that. When the water leaves my property, it goes into the sewage works, which is owned by bet homes. I don't know, but I presume that it goes into the pow. As I said, I don't release it into the pow, nor do I have any control over it to be released into the pow. It isn't even in my power ownership, so I would question whether there's a legal point on how I could possibly be charged for something that I don't have any control over, nor do I have any power over. Our position is that you are quite clearly a directly benefited person, Mr Davis. We disagree on quite a lot. We can agree that there is a direct contractual relationship in your title deed, requiring you to pay a one-fifty-fourth share for the drainage into the pow. Under the 1846 act and the benefited lands identified, yes. However, we're moving on to a new act. I'm calling through this process and I'm ejecting on the basis that the benefited lands need to be re-identified, because I argue that I do not directly benefit from the pow. We'll need to choose to disagree. If we can move on to the points about flood alleviation, I think that you've made some big points about this, about what is it that the pow does if anything for you, and you said that it's definitely not flood alleviation. On that basis, could you perhaps look at the document 1, the pow bill itself, please, which is document 1, pow bill. If you could turn to section 27, which is on page 9. If we move down to the definition of benefited land, can you see that? May we agree that it says that it's land drained by the pow shown on the coloured plants, which is the parliamentary plants? On that basis, can we agree that the purpose of the pow bill in terms of benefited land is to ensure drainage not flood alleviation, although I agree with you perhaps that flood alleviation may be indirectly related to effective drainage? Is that a concession on the part of the commission that it's not flood alleviation? In certain parts of the benefited land, there is some flood alleviation because drainage and flooding are also a related concept, but for the purposes of the charging system under the old act, the 1846 act and this act, may we agree that the bill is about drainage, it's about maintaining effective drainage? For my property, if there was any direct, which I disagree, there isn't, are you stating, Mr McKee, that it's drainage and not flooding? I think that for the purposes of your property, I think that it fulfills a drainage function. It may ultimately fulfil a flooding function if, for example, the pow did not flow, there may be flooding over what period I do not know. I think that its primary function insofar as your property is concerned is drainage. I would thank you for making that concession and acknowledging that it is drainage. I would ask the question... Sorry, Mr Davis, it's not a concession, it's what the act actually says. The act is not called the power of enchafry flood alleviation commission bill, it's the power of enchafry drainage. Thank you for that clarification. Can I make a point just on that, which may be helpful for the committee also? On the 13th of January 2015, I received a letter from a cash-in-hunter and I will quote, it says the power commission is charged as levee for the purpose of ensuring that the power burn is cleared and dredged so as to prevent flooding of the lands in this area. Inspections are periodically carried out and the maintenance works of the power and its banks are carried out each year so that the full length of the power of enchafry continues to flow unobstructed. Your property benefits from these works in the absence of which it would be a risk of flooding and possible uninsurability. Excuse me, what are those identifying papers? For the note for the Heritors meeting of Gas Call 6 p.m. on 2 March 2015, a note was prepared and given to all the Heritors. On page 1 it says, the commission's role in preventing the floods which have blighted the low-lying land in Strathurn for centuries means that the land is drained, the land drained is among the most fertile agricultural acreage in Scotland. In addition, the commission's work has made residential development possible in some areas such as the former Balgaon sawmill site. It is therefore vitally important that the power is maintained to prevent flooding in this area. In the promoter's memorandum that sentence is used again, it is therefore vitally important that the power is maintained to prevent flooding in this area. If flooding isn't the issue, why has it been repeatedly stated that it is vitally important to prevent flooding of my house? That's a question that you'll need to put to the promoter when they come to give evidence. I'm asking the questions just now. I think that we can agree that, from what I've said, these words could have been better chosen in correspondence with you. I will come back to that point. Better chosen is an interesting statement of words. Better chosen, I would perhaps use another word. The reason that I say better chosen is because we have agreed, have we not, that there is a relationship between drainage and flooding. If you don't drain, you could flood. As a matter of fact, residential properties need to be able to drain. Both surface water drainage and foul water drainage. If that drainage cannot happen at some future point and cannot drain, there will be a flood or the higher propensity to flood. I think that it's important to have a proper hydrological assessment of the catchment to identify the risks. I think that your next big point that I have noted is that you're concerned about perhaps not the current commissioners but future commissioners setting budgets at a level that you don't agree with. You want to impose some form of cap or limitation on that. Just come back to the point that if we are correct and you're not correct, we are correct that we are not. We are not. We are not. We are not. We are not. We are not. We are. We are. We are. We are. If we are correct and you're not correct, we are correct that your property does benefit from the power and if the power were not to be maintained, you would suffer some deleterious effects. Not least, you couldn't outfall the sewage from the waterworks and surface water drainage wouldn't operate. Would that not then have the effect of reducing the value of your property? Wouldn't you want the commissioners to have the freedom to do works that are needed solely, and I stress the word solely, to maintain effective drainage? I'll answer your question, Mr McKee. As I said earlier on, I do not believe that my property has any direct relationship with the power and should be a move for the benefit. Let's just be a bit hypothetical here, because you can't answer the question by saying in fairness that you're totally disagreeing. If you can just humour me on the basis that your property is benefited by the power, then maybe you could just answer the question whether you'd like the commissioners to maintain their property. On the theoretical point that my property does benefit directly and I don't believe it does. Then the commission has a duty to undertake works to maintain the power. However, I do not believe that the current arrangements, so maybe I've misunderstood the bill and I would be happy to receive further clarification of that. However, I do not believe that the current bill provides the necessary protection in place to ensure that unaffordable increases are unilaterally added to bills associated for me, my neighbours and any other heritage. We'll come to that in a moment. You've got a sort of developed point on that. You also mentioned in your letter of objection that you have concerns that the commissioners may also build up a financial reserve. Is that probably a related point? It's related to potential financial reserve in the event of unexpected expenditure, the beaver gate, which has been talked about, but also future proofing. What happens if, for example, all the farms are amalgamated and it's all owned by one particular ownership and that farmer then chooses to do unrequired works all along the length of the power, which would have to be paid for significantly by the residents of Balgaon, who again make up 73% of the heritors. So I believe there needs to be some mechanism in place to identify transparency, resolution of the conflict of interest, to ensure that there is a free and open tendering process over the work and some mechanism which would allow for controlling the expenditure. Just dealing briefly with the financial reserve point, would you agree with me that as a sort of matter of prudent measure to address unforeseen circumstances, it's sort of reasonable for the commission in their duties to have this opportunity of a financial reserve for exceptional circumstances? If your budgeting for the maintenance of any piece of ground is appropriate to be able to call on reserves to deal with emergencies. Okay, thank you. So if we could go back to document 1 please, if you could look at schedule 1 on page 10. Can you see that? It's actually setting out the functions of the commission. Can you see that? Sorry, page 10. So what you're concerned about in your lengthy answer to my question was the transparency about this possibility of an amalgamation of a large farm and they're choosing to do something which you ultimately have to pay for and you're worried about levels of control. May we agree that in terms of the statutory functions which the commission would have if the act is passed and if we go down to underneath sea here, they've got to do a number of things. They can only maintain repair and renew the power, take out the weeds on affected land, carry out improvements in protective works, but only insofar as the commission considers it necessary or desirable to maintain effective drainage of the benefited land. Can we agree that that does place a limitation on what the commissioners can authorise? It has to be within the statutory duties. If it's not for effective drainage then they shouldn't be doing it, they can't do it. Within those duties conferred through the bill I would see there be an opportunity to interpret the requirements of the power, not to interpret the legislation itself but to interpret what actually is required. For example, what happens if an owner decided to reinforce the bank the entire length of their ownership? As I understand it, such work has been undertaken already, but if that is the case the commissioners would have to pay for that as well and they're trying to keep the costs down, are they not? Is there a mechanism in the bill for the commissioners to keep the costs down? There's not a statutory cap. No, that's my point. Can we just turn to document 7 in your list there, the tax banding? Mr Davis, this is what's published by your local authority, Perthyn Kinross Council. It breaks down what the council tax banding is for particular values of property and what the individual charges are. If you go to page 1 to begin with, we see in there on the penultimate column at the bottom of the page a wastewater charge. Can you see that? Unfortunately it needs to go over the page here, but the column starts at £154.20. If we move down there it talks about the value of the properties. If you continue on it's talking about the charges for the next year, it's maybe easier to see that. The charges say for example for a property, I'm told, might be in the sort of C to F range. It means that if you had an adopted sewerage system rather than a private system, might we agree that you would be paying council tax to the order of £200 plus to the council? Yeah, that's exactly right. Under the current arrangements on a £20,000 with the five multiplier you'd be paying £51. I wouldn't disagree with any of that. My understanding is that in time the sewerage system will be adopted by Scottish Water and the local authority. I will be paying that at some point in the future. It has not been adopted, I don't know the details why, it's been indicated to me that maybe it's not up to stand, I don't know genuinely. But I understand that I will be paying that at some point when it is adopted by Scottish Water. But at the moment it is an unadopted private system, isn't it? Yes, absolutely. So just purely financially with an assessment at £20,000 at £51, perhaps the local authority may charge a lot more. You may well know that the commissioners did approach Perthenkin Ross Council asking them to look after the power and they refused as did Scottish Water, SIPA and all the rest of it. So that's the situation we were left with. But balancing the £51 roughly against £200 plus, that's not an unreasonable state of affairs you're in just now, is it? No, no, you said it's under £50 difference. I would just say though that at some point I will be charged for the, if the system is adopted I'll have to be charged for that. And secondly, within the bill my concern is I can't see any mechanism to stop that being increased to 200, 250, 300 on an annual basis should the commissioners see fit to do so. Okay, so just on that specific point are you aware that the commissioners wrote to the Scottish Parliament on the, I think it was on the 11th of October, setting out a possible amendment to give a right of appeal to heritors in respect of the annual assessment? I am aware, I'm not, I wouldn't necessarily understand all the detail but I am aware that there was an right of appeal which is identified. Can I maybe just explain a little bit about the appeal and then we can just explore your views? I mean what the right of appeal concerned was, if 10 or more heritors, and I stress that because this is an important point in it, if 10 or more heritors wish to challenge the annual assessment in any given year or the draft budget, however you describe it, it would be the draft budget because before the annual assessments are raised. So if 10 or more heritors wish to do that, then they can then have that budget assessed by an independent expert at no cost to themselves directly, there's no fee for making the appeal. Now, one of the concerns in giving this right and why it's been resisted by the commissioners has been the potential costs that that right of appeal might impact on all of the other heritors because if there's a right of appeal exercised and it has to go to an independent expert, then the cost of that independent expert require to be paid by the commission itself. And the commission have no other source of income other than the annual assessment. So if it was just one person, one heritor appealing, then all of the rest of the heritors would have to pay for that appeal. And in the calculations we've made and given the committee, the fear of the commission is that, say for example, the costs of the appeal could run into a few thousand pounds. Even if the independent expert upholds the appeal and said that the budget's too high, everyone needs to get 50 pounds or 20 pounds less, it's still going to be a higher annual assessment because the costs of that appeal need to be borne by the finite pool of heritors that we have. But be that as it may, that really explains why we've got this threshold of 10. It's to stop someone who simply is just doing it because they want to do it. We've put this threshold of 10 and I'm just really interested in exploring what your view is of that right of appeal, right of review. Thank you for explaining it. That was my understanding, having read it. It was interesting how to provide some provision for the ability to review the cost. It went straight into an appeal process. I think there's other parts of the process that need to be identified, not straight into an adversarial approach. Firstly, transparency about the actual costs of the maintenance. Secondly, an open and fair tendering process of the works. I just feel it's a much bigger thing that's needed, a much bigger explanation, much bigger provision that's needed, not just the right, oh right, you can appeal it, straight into adversarial, you can appeal it. And secondly, what are you actually appealing? Well, you're appealing the assessment of the cost of the works. You don't have the right to appeal the actual requirement of the works, nor do you have a right to appeal the actual tendering process of those works. So it actually just directs the appeal to a very narrow part of the overall picture, and I think it needs to be much broader. One of the issues that was raised in the very first heritage meetings that I attended, probably back in 2015, there was a real sense, and this is my view, and perhaps Jo and Hugh made disagree, but wanting to know what this was all about. Why were we being charged? What was the PAL? What were the costs associated with? And it's not just all you can appeal the actual assessment of the cost of those works, that's quite a narrow part of the overall picture. It needs to be much broader than that. Because if a contractor states that it will cost me X to dig the PAL, and we say, I don't think it will cost you X, I appeal it, then obviously there's a cost. We've got to get an expert. Who's going to be the expert? The expert is going to be appointed by the Association of Drainage Authorities, because we're looking for an expert, who would be a surveyor, I would imagine. The likelihood is there wouldn't be a substantial difference in the appeal. There may not be a substantial difference in the actual cost of the digging. My point is, is it actually needed? And is there thorough and proper explanation to demonstrate that it is actually needed? So I think although it is welcomed that there's a right of appeal, it's a much bigger picture that needs to be inclusive of all the heritors, so they can understand why it's been dug, the costs, there is a fair tendering process to get best value for the heritors, as well as the ability to veto the actual, to actually have some sort of mechanism to challenge the rate. But just saying it's on that one point is a narrow point. You say it's a narrow ground of appeal, but I have to say I don't agree with you, because the independent expert would always be looking at the budget, be looking at the work, be looking at the costs for that work. Is that all detailed in the more recent submission? Yes. So they'll be looking at the requirement for the work? Well, sorry, it is a right of appeal to an expert, and I'm assuming that he is looking at all of these matters. He or she needs to form a view as to whether the annual budget is reasonable, it is within the terms of the act, because we know that the duty of the commissioners, the function of the commissioners is effective drainage. If the money isn't being used for effective drainage, he or she, I would say, would like to say that you can't charge that. Well, that's an assumption based upon what's provided. I'm not saying that perhaps more detail needs to be included for me to fully understand it, because, as I can see it, it's just an appeal on the cost of the actual work, rather than, well, is it required full stop? No, I can assure you that the appeal goes beyond merely looking at costs. An appellant wouldn't be saying, this is just far too much, if you say it's too much, because these items shouldn't be included, for example, and it would be for the independent expert to look at all of the issues and around and make a view. And does it say that? We haven't formally drafted the right of appeal, and it's only a suggestion at the moment, but we are negotiating on that point at the moment. I can see what you want, but I can see that. I mean, can I record that? I don't want to record it wrongly, but you broadly welcome such a right. There needs to be further provisions in the bill to protect all the heritors from unaffordable increases and to create transparency to secure best value for money and protection of conflict of interest. I welcome what you've proposed, but I don't think it goes that far. You'd like it to go further? Much further. I have no further questions. Thank you very much, Mr McKee. Thank you, Mr Davis. Davis, we will suspend briefly for a five-minute comfort break. Thank you. I now wish to invite the promoters to set out their views. The promoter stands by the evidence already given to the committee, orally and in writing. In particular, the promoter relies upon its responses to all of the three objections made to the power bill and the written representations, all are set out in the letter on its behalf dated 6 December 2017 to the committee clerk, which has been encapsulated into the committee papers. May I respectfully request that the committee take that as read? I can just develop four points before we move to questioning. The first of these, and I've just got some headings for these, is the drainage function of the pow. The principal function of the pow and indeed the 1846 act relates to maintaining effective drainage. The function of the commissioners following that of the 1846 act is to maintain effective drainage, and that's schedule one of one, and it's not specifically about flooding, although flooding is, as I've pointed out, not indirectly or indirectly related to effective drainage. Whilst the consequence of effective drainage may be in certain areas of benefited land to alleviate flooding, again, the central purpose of the pow bill relates to drainage. Benefited land, as defined in section 27 of the pow bill, is land drained by the pow as shown on the parliamentary plans. The second point that I wish to advance is really the reasons why a reassessment in the sense of a re-survey is not required. In my questioning of Mr Davis, I've indicated why a reassessment is not needed. The promoter has stated in evidence, both orally and in writing, that the basis for identifying the benefited land in the pow bill is the original survey plan prepared for the 1846 act. The promoter believes that the original survey plan, which was prepared in relation to the act, identifies benefited land and remains accurate, and in the promoter's view there is no evidence to the contrary. The promoter in preparing the parliamentary plans for the pow bill has examined the enclosures and fields shown on the benefited land on the 1846 plan and transferred them faithfully on to the parliamentary plans. Because of that, in promoter's view, there is no reasonable basis for any reassessment of benefited land to be undertaken nor is it necessary. On that point, if I could just pass over to Mr Gast and ask him as the author of the parliamentary plans and someone who is interpreting the original survey plan just to explain what he did, I thought that would be helpful. If we could again have before us the survey plan, which is number eight of the promoter's papers, and if we could open that up again to where the pink arrow is shown, and I should say that I put the pink arrow on, that isn't on the original plan, I just did that for ease of reference for today. I could perhaps just invite Mr Gast to explain his understanding of in what way the Balgaon area specifically, because that's what we've been dealing with today, is benefited land in terms of the 1846 plan, why that plan is reliable and how he then transferred the identification of the benefited fields and enclosures on to the parliamentary plans. So Mr Gast, if you could help, I would be grateful. The 1846 survey shows the power and the side ditches, and it also shows the enclosures, which comprise a benefited land. Whilst I appreciate that this plan was prepared, I think the ordinance survey plan started about 1870, so it's not much before. It does show, it shows the enclosures of the benefited land. If you look at the Balgaon area, where Alistair's red arrow is, you can see the main power, you can see the Buckleton power, you can see the Jesse Byrne, which is the one going north towards the north point, and you can see the Cow Gas, which is the side ditch running southwards, and you can see that double line, which is obviously the road, which we drove along during the inspection. You can see that the enclosures between the road and the power are shown as benefited land. So when we were doing the, when we prepared the plans, which in support of the present bill, what we did was we looked at this 1846 survey, and I've got a larger version of this back in the office. We looked at that, and then we transcribed, as accurately as we could, the benefited land, as shown on here, onto modern ordinance survey vector data. We then analysed the, on the agricultural side, it's classified according to, I don't know if you're familiar with it, but there's the Macaulay Institute, which is this thing. All the agricultural land in Scotland has been classified by the Macaulay Institute into the different grades, and there are maps here which show where the different grades are. We transcribed those onto the new plan, and then with digital mapping, it's very simple to work out the areas of the different categories of land and different areas, such the approach we took. And then we took the values for each per acre, for the different land classifications, whether it was different, the different types of grades of our cultural land, forestry land, residential land and commercial property land, and we applied those to the areas which had been worked out off these digital plans. That's how we did it. That's very helpful. Could you also maybe just explain what your understanding is of any key changes that may have occurred in this area? I don't believe that the levels of the land have changed at all. The topography of the land is the same as it always was. There have been changes in the bed level of the power where we've been able to achieve a better gradient, as we saw at Dolary Bridge, and actually we also, in the late 1980s, regraded the power under Balgaon Bridge, and I think on the inspection, I think I showed, pointed out the underpinning work that had been done on the bridge there. And that regrading work was what enabled the outfall for the waste water treatment works to be installed. I was really meaning any physical changes to the benefited land. I think there have been, obviously, changes in land use. I could think of one area that used to be our cultural land, which is now forestry, but other than that... I mean, if I may just direct the question at the Balgaon area, I mean, on the original survey plant I'm looking at, there doesn't appear to be any development there. No, well originally this land was part of Balgaon estate, which was primarily to the north of the power. And then there was a sawmill, which I would imagine would have started off as a state sawmill. Yes. And then it would have been taken over by an independent timber merchant. Railway in between. Yeah. So am I right in saying, at the time this plan was drawn, this was undeveloped land. It then subsequently became developed for a sawmill. The other change on this survey is huge, just pointed out, is the railway. There was no railway in 1846, which now was closed by Mr Beeching, but there was a railway constructed along here. Thank you, Mr Guest. If I could just maybe continue, I've got a few further points. The third of my points relates to the imposition of a cap or a ceiling. As the committee will know, the promoter opposes a cap for the annual assessments for the reason that this may place an unworkable and unacceptable limitation on the exercise of the statutory duty of the commissioners in their repair, maintenance and improvement in order that the POW operates in a way that's effective, drainage-wise. That's why we're opposing a cap. I do think that there is, though, perhaps a relationship between the suggested right of appeal, which is being put forward by the promoters and a cap, in a sense that it does allow some check and balance to be exercised by heritors should they choose to exercise that right. That right to review appeal to an independent expert was suggested in the promoter's letter of 11 October 2017, and I thought it might just be helpful to me just to unpack that a little bit. As committee members are aware, the principal concerns of the commission in regard to introducing a right of appeal related to cost, efficiency and speed, and indeed fairness to all heritors. As has been illustrated by the promoter in evidence today, if one heritor seeks an appeal, the cost of that appeal needs to be borne by all of the heritors. It's quite a unique position in my submission because it's not often you have a right of appeal where there's a limited amount of people who have to contribute towards the cost of processing that appeal and, indeed, to pay for that, whether it succeeds or fails. I think that it is a very unique position that the commission and the committee find itself in. That's why we had introduced the concept of having to be 10 or more heritors to exercise that right. I should also say that the commissioners gave serious consideration to individual rights of appeal on the basis that, because there was going to be an impact on costs, whether that appeal succeeded or failed, that the independent expert should be given the right to award costs, but it was felt that, because we're dealing with relatively small sums, the existence of a right to award cost would be deterrent to those who might want to appeal in the sense that the appeal may be over £500, hypothetically speaking, but the actual costs, if they were awarded against the appellant, would be enough to really negate that right of appeal. That's why we moved away from the right of appeal by one heritor only and thought that we needed to have a combined weight of heritors such as 10. We did, in our discussions, consider who the right of appeal should be made to. We went for the independent expert appointed by the drainage authorities organisation because we thought that would be faster. We considered arbitration. We thought that would be too lengthy. We are dealing with a relatively short window in terms of setting budgets. We thought about the land tribunal or the sheriff, but again, these were felt to be too costly and they would not be quick enough in their decision making. That's where we got to the independent expert. What's been happening up to now is that we generally inspect the power around about February time. Work has to be carried out during the summer months, partly for SEPA and partly also for a practical reason. If it's carried out in the summer months, the water's low and if the banks are disturbed it gives them time to grass up again before we get winter floods. We're always aiming to do the work in the summer months, which means you need to book the contractor by, say, April to be certain that he's going to turn up during the summer, which means we need to instruct him by March. The idea is that we inspect the power in February. We decide on what the priorities are. We then have a meeting to decide what needs to be done and instruct the contractor, so he's got plenty of time and notice to do the work. Now, if we, with the appeal process, we'll have to allow for the time, what's proposed at the moment is a review followed by appeal process, so we'll have to allow time for that, working backwards from instructing the contractor in April. So, instead of deciding on the work in March, we'll have to probably decide it two or three months earlier, you know, November, December, probably October, November, we'll have to decide on the work to be done. So, the budget will inherently be less accurate because we won't know at that point what damage might be done to the power over the winter months. We also won't know whether it's going to be an appeal or not, so we'll have to include in the budget a provisional sum for winter damage, and we'll have to include in the budget a provisional sum for an appeal if there is one. So, when we get to the point of the spring, we know whether there has been an appeal or not, we know what damage has been done over the winter, and we can then confirm the work to be done. If I can maybe just continue, because the commissioners have been reflecting on the preliminary stage report and indeed the preliminary stage debate and have reflected further on whether it would be possible to offer some additional protection. I can maybe just unpack this for you, and you may have some questions about this, but what may be possible, and I stress that it's not the sort of preference of the commission because they think the one that we have at the moment on the table for the 10 Heritors is adequate, but it would be possible to introduce a right of appeal for any Heritor, so that wouldn't be numbers, just any Heritor to lodge an appeal if the draft annual budget exceeds 3 times the £20,000 annual assessment index linked. So, for example, say it went to £60,000, there would be an automatic right to have an appeal against that to an independent expert. That's not quite a cap, but it's kind of related to a cap. You've got the kind of situation where I think, coincidentally, I've met Mr Davis, where his charge under a £20,000 at the moment would be say £51. If it went triple that, he would have an automatic right individually to have a right of appeal, to have that looked at, to see if it was within whether it was an acceptable budget in terms of the act and on the judgment of the independent commissioner. I would say that we're using the £20,000 as the benchmark, as the base, but that would be index linked, so the bill going forward, that would go up, so it would be 3 times that. So, the two rights of appeal, one for the 10 Heritors, who can actually appeal whatever the budget is set at, and then we have the other one for individual Heritors who can go if it goes up three times. That's not our preference, but those could operate in combination with one another. It's something that we have reflected on, and I know that you feel strongly about rights of appeal, so we're certainly open to discuss it further if you have questions about it. That's really all I had to say in terms of presenting our case, and we welcome any questions from Mr Davis. For a practical point of view, we have actually used the same contractor to do the work on the power for the last 30 years. He's been the same person, and he does an excellent job. He does pretty well all the land drainage for the farms in the surrounding area. He knows all the farmers, and he's totally trustworthy, and I think his charges are very reasonable. What I'm worried about is that if we had to go out to Tender every time, we would lose that continuity, we would lose that intimate knowledge of how the power works, and we would have somebody who's just going to be in for one year and then he wouldn't know where he's going to be there the following year. We would lose the fact that doing the work on the power, there's a lot of interaction with the local farmers to get access and to make practical day-to-day arrangements. If we have a contractor who doesn't know all the local farmers and doesn't know all the people, it would take a lot more, you know, you might save a few quid on the cost of the work, but there'll be an awful lot more time and expense in supervising it and making sure the work was done properly and didn't upset all the people. Gwestin Mr McKee, I invite Mr Davis to make any comments or questions he has to the promoters. I do just have a few questions to ask. The charge is for those who benefit from the power, so in relation of the Balgauan estate, who releases water into the power? The manor kingdom development all drains to that waste water treatment works, and I think the original idea was that that was going to be common property amongst the development, rather like the open areas of the development. It's rather like if you have a block of flats, and the external walls and the stairway are in common ownership of the people who own the individual flats. My understanding is that that was the intention when manor kingdom started the development and that the individual properties each have a shed, that the open spaces and the common areas of that development, including the waste water treatment works, are in common ownership of all the householders. I think that there was a deed of conditions, and that's what's reflected in your title. What happened was that manor kingdom, once they built all the houses they just wanted out, so they offloaded it onto this organisation called Green Belt, and they were given a lump of money, which in theory lasts forever. That covers the cost of running that treatment works and maintaining the common areas forever, we hope. So who releases water into the power? Well, it goes from that waste water treatment works. I'll go further. The waste treatment releases it, so it's sewage effluent in, but I believe every house releases its own drainage water into the power. How does it do that? Through its drains. So when the water leaves my property and goes into the drains, who owns the land upon which those drains flow? You're asking me who owns the land between your house and the power? I think it'll be in common ownership in the same way as who owns the green area in the middle of the, you know, who owns that. I don't think you can lose responsibility for your drainage water just because it passes through someone else's land. Lawyers can correct me, but I don't think that means it's not your water, drainage water. My question here is, who owns the land from which the water is released into the power? I think you do from the one that comes from. You release it. I don't release anything into the power. It goes from the sewage works, treatment works. You release it from your property and it ends up in the power? It doesn't go directly into the power from my property. It goes, as I understand it, it goes to the sewage treatment works. That's right. Now I don't know where it goes after that. Well I tell you it goes into the power. The old drains in the ground on which you're built on won't go to the drainage works. They'll go straight to the power. I doubt the old land drains are still functioning. There are two pipes. There's one from the wastewater treatment works into the power and there's another one which goes into the cow gas which runs into the power. My understanding is, but it appears that you're not entirely clear on who releases water into the power. Is that the owner of the treatment works will release water into the power? The owner of the treatment works will be, I'm not sure whether it's Greenbelt or whether it's the house owners who have common ownership of the whole thing. It is a bit disappointing that you don't actually know who releases water into the power. Legally we know who benefits from the water being released into the power and that's what's legally important. I'm not sure. I think what's important is who actually benefits. Why do you think that? Well benefits, yes. We're with you on benefits. Who actually benefits? Who releases water into the power? Those are two different things. You've been trying to distinguish, separate the two. We're happy that the people who benefit are charged. You're trying to say now that you don't benefit because it's indirectly goes through a drain that someone else owns before it gets to the power. It seems a bit spurious to us. I don't agree with that. I don't think it's spurious. I think a landowner has to receive the water that comes downstream from their property. For example, if the sewage treatment works was a community sewage works and that was all transported away and disposed of elsewhere, which it could be for all I know, then it doesn't release anything into the power. On that basis, the whole power would be maintained by the landowner who owns the land at the bottom where it comes into the earth. Wouldn't it? Yes, but it's all about benefit. It's all about benefit and I don't believe I have any direct benefit because water passes from my property onto someone else's ownership. It passes into the treatment works and those treatment works I understand are owned by Betthomes I don't understand what exactly happened to Manne Kingdom but Betthomes now own as I understand the treatment works. Maybe that's information for you today but it's Betthomes who actually release, I would imagine, anything into the power. We don't do drainage. We enable drainage. We dig a bigger hole so that your drains can work. My hole is still there and you are benefiting from it. It's not my drain though. I don't release it. That's where we've got to. That is the nub of the matter. You stated and you may be correct it's not your drain but I don't think that gets around your benefit. I think it entirely does because I don't think I have to pay for someone else's direct benefit. If the power wasn't maintained and those outflows blocked up, your house would be not worth a lot because you'd have no drainage. That might be the point but I don't think that's entirely relevant. It's totally relevant. Who actually releases water into the power is the person who directly benefits or the organisation who directly benefits. If we want to take that line, when the manor kingdom development started, what we wanted to do was to raise a single assessment against manor kingdom. Manor kingdom would then deal with all the householders and there would be a service charge if they'd all pay. Much simpler for us but we'd raise one assessment instead of 54 and that was our preference but manor kingdom wouldn't do that. That's why we have to deal with all the individual 54 people. The question has been who releases water into the power is clearly not exactly clear who actually does that, who owns the land, who owns the infrastructure. It is slightly concerning that we've got to this point with the bill and it's not clear who releases water into the power. The other point is that I think the person who directly benefits or who directly releases water into the power is the one who should be charged. Now they may pass that charge on to the third party but that's another point. We've already asked that question when we were discussing with manor kingdom whenever it was years ago, they wouldn't do that. We wanted to have a single charge to whoever was going to be factoring all the common parts of that development so they would have to deal with all the individual householders but they wouldn't do that. That's disappointing but historical. That's why we have to deal with all the individuals. Under the current Act. There are houses uphill from you. Would you accept that you're responsible for their drainage water because it comes under your house to get to the power? Well it depends what you mean by drainage because of course there'll be some water which will flow into the groundwater under the property. The drainage from the rooftops would go into the communal drainage system I assume. I think if we were going to get down to how much surface water was created through my garden or someone else's garden, I think we're getting on very minimal amounts of liquid because you've got to have to factor in the transpiration and the interception that occurs through the vegetation in my garden. So actually how much water goes in but at my point is all the water that hits my roof goes into the drains into someone else's land, I don't know in that land, I don't know what they do with it. All the foul water goes out of my property into someone else's land and I don't know what they do with it. Can I just answer that? Mr Davis we're having quite an interesting academic discussion here about whether your property is or is not benefitted but you have stated in your letter of objection and I'm just going to quote this to you. I have however come to understand the purpose of the power and its history and understand and accept I have to contribute towards its maintenance. Now when you made that statement may we agree that you must have had it in your mind that you were in some way at least benefitting from the power otherwise you wouldn't have accepted it and be prepared to contribute towards its maintenance. Earlier on in my evidence I did state, perhaps I didn't make it clear I've come to a different position to what I wrote in my original objection and I've come to the conclusion that actually I don't directly benefit and my property shouldn't be in the benefitted lands so that I appreciate that's different to my original objection and arguably I should have given it greater consideration at the time but I don't agree that my land directly, my property directly benefits from the power because there's no direct relationship with the power. We'll have to disagree. So I move on to another question. Disrelating to flooding and I went through various documents. I don't, would it be worth me re-quoting those or for the record they were already? If you wish to, you may. I've received a number of quotes here relating to issues around flooding and on the 13th of January 2015 McCashen Hunter sent me a letter explaining that the power's commission is charged as levee for the purpose of ensuring that the power burn is cleared and dredged so as to prevent flooding of the land in this area and then it goes on to say your property benefits from these works in the absence of which it would be at risk of flooding. In the notes for heritors meeting gas call 2 March 2015 it says that it is therefore vitally important that the power is maintained to prevent flooding in this area. In the consultation paper prepared by the power and chaffery commission in May 2016 it repeats that line. It says that it is therefore vitally important that the power is maintained to prevent flooding in this area. In the memorandum, it promotes its memorandum to the bill submitted to the Parliament earlier this year it says again that it is therefore vitally important that the power is maintained to prevent flooding in this area and even up to the site visit we had a brief dialogue about flooding and I think it was captured in the notes. It is quite clear that the flooding alleviation is a side benefit of the drainage commission because before when the manor kingdom development was under consideration over Arab who were the flood consultants for manor kingdom came to see me and I showed them the plans which showed the regrading of the power under Balgaon bridge and they took away that as a longitudinal section which shows it all in some detail and they were very interested in that and it's interesting that the drains, the outfalls from the wastewater treatment works and the surface water outfall there are set at levels which it could not have set out could not be set out if those regrading works had not been carried out by the commission. My question is if flooding is a side issue which I very much believe it is more than a side issue I don't believe there's any evidence to support the flooding as an issue none has been provided but let's say it's a side issue, a minor issue not an issue at all why has it been stated several times that it's vitally important that the work of the commission is carried out to prevent flooding in the area? If you look at the agricultural land for example there are quite large areas of agricultural land within the benefited area which in bad weather flood and however well we maintain the power we will not stop them flooding but they can be drained because the power is deep enough to allow drainage so I mean I've got some on my own farm fields which flood if in bad winter weather they flood and you wouldn't dream of growing winter crops on them but they do grow spring crops because one can drain them. I accept that in respect of agricultural land blossoming and specifically the Baogauan sawmill site as it says here in addition the commission's work has made residential development possible in some areas such as the former Baogauan sawmill site it is therefore vitally important that the power is maintained to prevent flooding in this area the linking of those two senses suggests to me that what the commission is saying is vitally important to undertake the work to prevent flooding on the Baogauan site. I'll stand by that, why not? We're clear in the legal documents that the service provided is one of drainage but the reason I pay the drainage bills is to prevent flooding and I completely believe that your site would flood without a thousand years if we undo the thousand years of drainage I completely believe that the reason you should pay it is to prevent flooding as well. Well, I think there's two separate things because when we're past those thousand years of drainage work we are where we are with respect to the power and what it currently is there's no, that's history. No, it requires maintenance to preserve it. The work undertaken on the power is history. No, it goes on every year. Well, we'd like it to go on every year. But if we stop that work we will revert to our original state. To the original state of thousand years ago? Yeah. If you look down the valley you'll see that until the Baogauan development all the houses up and down that valley are above there are none on this benefited area plan. They're all above it for a very good reason. Yeah, understandably but I'm not talking about the other houses I'm talking about my house. Your house is on the benefited area all the houses at this time were built above the benefited area. Yeah, which was built on high ground. Is there any evidence? Have you got any evidence to say that flooding is an issue for my house? No, the evidence is that you benefit from the drainage. So flooding is not the issue? It's not the legal issue. If I was you I would be very concerned about flooding as well. I'm not very concerned because there's no evidence to support the flooding as an issue. It's been maintained that... When you do get evidence, what evidence do you want? Water in your home? The super map obviously supports my point but however that is an assessment that is no doubt a model. But there is still no evidence to support flooding as an issue. Has there been a hydrological assessment by a net relevant expert of the catchment and the potential flooding? Of course not. It's stated several times that it is vitally important that the power is maintained from flooding in this area which I think would be fair to assume that is my house. There is no evidence to assume that. It's been identified as a minor issue. There's been no hydrological assessment. Joe said it was a side issue. I would argue this. All my neighbours and I can put myself in that have been under the impression through this documentation although I've maintained my position right from the outset that flooding is an issue. If it's not an issue, why is it repeatedly said in the documentation that is vitally important? Because flooding is such an emotive issue. You see people's houses flooded on the news and you think I don't want that to happen to my house. However, there is no evidence whatsoever to support the statement that it is vitally important that the power is maintained from flooding in this area. I would suggest that it would need to be carefully considered if this was never included at the outset in any of the consultation documents that we don't know how people would have reacted to this bill. I'm surprised that it's still maintained that it's vitally important because there's no evidence to support it. Can I answer, at least in part, your question? I'm just looking at the preliminary stage report and I'm just on the issue about flood risk mapping. One of the conclusions in that is the committee noting from CEPA, Scottish Environment Protection Agency, which indicates that its flood risk mapping cannot be used to assess land which benefits from the paw. Do you understand that? The other conclusion that has reached is that having visited the area in question, the committee has satisfied that the drainage of the paw, the drainage that the paw provides, is essential for the drainage of surface water and waste for the houses in the Balgawain area. That's a conclusion that has been reached. That's helpful clarification. The point that CEPA is making in respect to a benefit is different to flooding. They're not saying that it might be at risk from flooding just because they're mapped. That's a different point. I'll move on once I've made this final point. I would submit to you that all the documentation is indicated to me and my neighbours that our houses will flood if the paw isn't out. When they came to see me, it was certainly very interested to know that the regrading works which we'd carried out would be maintained. There's no evidence to support that. It's not in the bill. Why should it be in the bill? You said it's vitally important to prevent flooding in the area. If it's vitally important, why isn't it in the bill? We have an obligation to maintain the power. Obviously we have an obligation to maintain the power as a proper drain. I don't say this is in any way deliberate, but I think some of this wording is a little misleading. I don't think so because we're trying to update the 1846 Act and the 1846 Act says at the beginning of it in the preamble it says it is for the better draining and improving of the lands adjacent to the river or stream called the power of in Chaffrey. It does not talk about flooding. It talks about better draining. It's vitally important that the power is maintained to prevent flooding in this area. The 1696 Act says exactly the same thing. Why has it been repeated? It's vitally important to prevent flooding in this area. If it's not in the 1696, the 1846, not in the 2018, or whenever the bill passes? Primarily because we can't actually prevent flooding. We can drain as much as we want, but we cannot in the act promise to there will be no floods. That is why we can't promise it in an act of parliament. It is primarily because we believe that it will happen anyway to a certain extent. What we will do is work as hard as we can to improve the drainage and thereby has a free benefit. We all get what we need, which is a freedom from flooding. My point is this, that I think there's been a miss, these are misleading statements. It's deliberate, I think. It's been misleading. I would put the question, and I'll move on to my next point, that we don't know how heritors would have reacted to this bill, to the so-called consultation prior to it that you undertook, if the flooding statement had been removed and it specified that it was about drainage and that flooding wasn't an issue. I think that undermines much of the process to date. I'll move on to state labour in this particular point. Do we have a particular timeframe for our conclusion of our session today? I don't want to, kind of, an hour ago, was that? The procession is appreciated. I'll look at what I had prepared question-wise, and I don't want to make points, for the sake of making points, just to get what I wish to. It may be worth it if I make my final few points and sum them up rather than continue questioning, because we may be a quicker way to get to what I wish to state, rather than following questions. Okay. Yes, that's fine. Thank you very much, Mr Davis. Okay. Thank you. I would now like to invite the promoters to make any final points. I wish to sum them up. Thank you, convener. I'll be brief. In the promoters' view, benefited land is properly identified on the parliamentary plans, which are before you. In terms of fairness and proportionality, the promoter maintains its position that the basis for charges, the annual assessments under the power bill, are fair and equitable across all the different categories of land, agriculture, woodland, amenity, commercial and residential, and that's of carative land, which benefits directly from the power. As the commissioners are all heritors, they will continue to have a strong invested interest in avoiding unnecessary expenditure and minimising the level of the annual assessment. It is considered that the rights of appeal review suggested by the commissioners, and indeed the new right that I announced today, are both fair and proportionate, having regard to the unique circumstances of the commission. Thank you. I'd like to invite Mr Davis to make any closing remarks. Okay, thank you. Having listened to the points made today, I still maintain that the proposed bill is unfair and disproportionate, lacking any evidence base, and will confer significant power onto a small group of landowners who are very much the minority of those covered by the bill. I believe that my property should be removed from the benefitted land because I do not discharge anything into the power, nor does it provide any flood mitigation benefits to me. I do not own any of the systems which discharge water into the power, and, therefore, why should I be charged? The balance of power in the proposed bill is wrong, and the proposers of the bill should reassess the mechanisms to protect heritors and ensure transparency and value for money and stop significant annual charge increases. I will just make a couple of supplementary points. Presumably, the power was maintained in good order prior to the construction of Balgaon. Yes, it seems there is a tremendous amount of income under the previous assessment derived from the properties of Balgaon, with no assessment of the impacts of Balgaon estates. Therefore, I consider it disproportionate. Prior to Balgaon, the power was presumably managed accord correctly, maintained correctly, and Balgaon estates were then built. Balgaon estates will now have an impact, and the charge should be a result of that impact, yet the charge is 40 per cent of the total bill, and I say that is disproportionate to the benefit to Balgaon. Secondly, there has been no assessment of the actual land of the differing land ownership. For example, Balgaon estates as a member of Balgaon community, the Balgaon estate benefits in some way and inputs in some way. However, if I'm a farmer, I benefit greatly because of the potential to remove flood water from my property, but my impact is also potentially very significant. What we haven't considered is the intensive plowing work that takes place in the catchment. When the intensive plowing takes place and there's significant rainwater, that washes off silt into the power. I would argue that the most significant cost of the work of the maintenance of the power is digging out that silt. Therefore, farmers benefit the most and impact the power the most, and no proper assessment has been made of that particular point. On the consultation, which was undertaken prior to the submission of the bill, I wouldn't say it was a poor consultation process. I asked the question whether or not any changes to the bill have been made as a result of the consultation. I asked for a record of the comments that were made and to date I've not received any of that information. I can only assume that the bill that was submitted to Parliament was exactly the same as the commissioners developed prior to the consultation period being undertaken. That would be my final point. I conclude my sum-up on that. Thank you very much, Mr Davis. On behalf of the committee, I would like to thank everyone for attending today. The next meeting of the committee will be on Wednesday, 17 January, 2018, at 10 am, and it will be to consider the objections and for the committee to consider its consideration report. It just remains for me to say to wish everyone a very happy Christmas and a very good new year. The committee will now move into a private session and suspend briefly.