Renewables and crofts issues for hydro developments crofting law group - 2011-09_22
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Transcript of Renewables and crofts issues for hydro developments crofting law group - 2011-09_22
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