Renewables and Crofts – Issues for Renewable Hydro

Developments

Robert Sutherland, Advocate

Terra Firma Chambers

Renewables and Crofts – Issues for Renewable Hydro Developments

• Property Law Issues

• Crofting Law Issues

• Regulatory Law Issues

Renewables and Crofts – Issues for Renewable Hydro Developments

Property Law Issues

• Downstream / upstream

• Adjacent

• CPO Powers

Renewables and Crofts – Issues for Renewable Hydro Developments

• Downstream– right to receive the water (subject to the

ordinary uses) undiminished in quantity, unpolluted in quality, and unaltered in direction, force or volume

• Upstream– consequential obligations / limitations on use

Renewables and Crofts – Issues for Renewable Hydro Developments

• Ordinary uses– domestic, agricultural, manufacturing

• entitled to divert water from a stream to act as a power source, but have to return it to the same stream, undiminished in volume - Cowan v Kinnaird, (1865) 4 M 236

Renewables and Crofts – Issues for Renewable Hydro Developments

• Adjacent owners– presumption that boundary is the mid point of

the river– each owner has the same right to full use of

the water passing downstream, Bicket v Morris, (1866) 4 Macph (HL) 44 – not every trifling interference, but any risk of a material change sufficient

Renewables and Crofts – Issues for Renewable Hydro Developments

• Hamilton v Eddington & Co, (1793) M 12824

• Lanark Twist Co, (1810) Hume 520

• Robertson v Foote & Co, (1879) 6 R 1290

Renewables and Crofts – Issues for Renewable Hydro Developments

• CPO Powers, Electricity Act 1989– Schedule 3: compulsory acquisition– Schedule 4: rights to obtain wayleaves, fell

trees, and enter land for the purpose of ascertaining the state of the ground

– Schedule 5: can be authorised to abstract and divert water from a watercourse or loch as may be necessary

Renewables and Crofts – Issues for Renewable Hydro Developments

• There appears to be some reluctance to use compulsory powers

• William Old International Ltd v Arya, [2009]

2 P & CR 20

Renewables and Crofts – Issues for Renewable Hydro Developments

Crofting Law Issues

Scheme for development -

• Section 19A

• Section 20

• Section 21

Renewables and Crofts – Issues for Renewable Hydro Developments

• Section 5(3)(a) - consent of the Scottish Land Court required?

• Decrofting direction Section 24(3) – discretion of the Commission; Section 25(1) – some reasonable purpose

• Right to buy croft land and apportioned common grazings – Sections 12 and 13

Renewables and Crofts – Issues for Renewable Hydro Developments

• Grant v Glengarry Estate Trust, 2008 SLCR 63

• Crofting community right to buy – Land Reform (Scotland) Act 2003, Part 3, Sections 68-97

• Section 30(6A)/Section 30(6B) – landlord’s consent - compensation for improvements

Renewables and Crofts – Issues for Renewable Hydro Developments

Regulatory Law Issues

• The Water Environment (Controlled Activities) (Scotland) Regulations 2011– surface water, wetlands, rivers, lochs,

estuaries, coastal waters and groundwater– Came into force on 31 March 2011– Extensive meanings for ‘surface water

courses’ ‘abstractions’, and ‘impoundment’

Renewables and Crofts – Issues for Renewable Hydro Developments

The Water Environment (Controlled Activities) (Scotland) Regulations 2011

•Hierarchy of activity and regulation– General Binding Rules [GBR’s] – agricultural

pollution control measures / fish farming– Registration– Licenses (Simple or Complex)

Renewables and Crofts – Issues for Renewable Hydro Developments

The Water Environment (Controlled Activities) (Scotland) Regulations 2011•Hydropower schemes will require a water use licence from SEPA•Requirements will depend on size and scale•http://www.sepa.org.uk/water/hydropower.aspx

- SEPA Guidance

Renewables and Crofts – Issues for Renewable Hydro

Developments

Robert Sutherland, Advocate

Terra Firma Chambers