A look at issues in property law, crofting law and statutory regulation affecting hydro energy schemes in Scotland

1. Renewables and Crofts –
Issues for Renewable Hydro
Developments
Robert Sutherland, Advocate
Terra Firma Chambers

2. Renewables and Crofts – Issues for
Renewable Hydro Developments
• Property Law Issues
• Crofting Law Issues
• Regulatory Law Issues

3. Renewables and Crofts – Issues for
Renewable Hydro Developments
Property Law Issues
• Downstream / upstream
• Adjacent
• CPO Powers

4. 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

5. 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

6. 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

7. 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

9. 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

10. 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

11. Renewables and Crofts – Issues for
Renewable Hydro Developments
Crofting Law Issues
Scheme for development -
• Section 19A
• Section 20
• Section 21

12. 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

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

14. 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’

15. 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)

16. 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

17. Renewables and Crofts –
Issues for Renewable Hydro
Developments
Robert Sutherland, Advocate
Terra Firma Chambers