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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...
Renewables and Crofts – Issues for  Renewable Hydro DevelopmentsProperty Law Issues• Downstream / upstream• Adjacent• CPO ...
Renewables and Crofts – Issues for  Renewable Hydro Developments• Downstream  – right to receive the water (subject to the...
Renewables and Crofts – Issues for  Renewable Hydro Developments• Ordinary uses  – domestic, agricultural, manufacturing• ...
Renewables and Crofts – Issues for  Renewable Hydro Developments• Adjacent owners  – presumption that boundary is the mid ...
Renewables and Crofts – Issues for  Renewable Hydro Developments• Hamilton v Eddington & Co, (1793) M  12824• Lanark Twist...
Renewables and Crofts – Issues for  Renewable Hydro Developments• CPO Powers, Electricity Act 1989  – Schedule 3: compulso...
Renewables and Crofts – Issues for   Renewable Hydro Developments• There appears to be some reluctance to use  compulsory ...
Renewables and Crofts – Issues for  Renewable Hydro DevelopmentsCrofting Law IssuesScheme for development -• Section 19A• ...
Renewables and Crofts – Issues for  Renewable Hydro Developments• Section 5(3)(a) - consent of the Scottish  Land Court re...
Renewables and Crofts – Issues for  Renewable Hydro Developments• Grant v Glengarry Estate Trust, 2008  SLCR 63• Crofting ...
Renewables and Crofts – Issues for  Renewable Hydro DevelopmentsRegulatory Law Issues• The Water Environment (Controlled  ...
Renewables and Crofts – Issues for  Renewable Hydro DevelopmentsThe Water Environment (ControlledActivities) (Scotland) Re...
Renewables and Crofts – Issues for  Renewable Hydro DevelopmentsThe Water Environment (ControlledActivities) (Scotland) Re...
Renewables and Crofts –Issues for Renewable Hydro       Developments   Robert Sutherland, Advocate     Terra Firma Chambers
Renewables and crofts   issues for hydro developments crofting law group - 2011-09_22
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Renewables and crofts issues for hydro developments crofting law group - 2011-09_22

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

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

  1. 1. Renewables and Crofts –Issues for Renewable Hydro Developments Robert Sutherland, Advocate Terra Firma Chambers
  2. 2. Renewables and Crofts – Issues for Renewable Hydro Developments• Property Law Issues• Crofting Law Issues• Regulatory Law Issues
  3. 3. Renewables and Crofts – Issues for Renewable Hydro DevelopmentsProperty Law Issues• Downstream / upstream• Adjacent• CPO Powers
  4. 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. 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. 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. 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
  8. 8. 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
  9. 9. 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
  10. 10. Renewables and Crofts – Issues for Renewable Hydro DevelopmentsCrofting Law IssuesScheme for development -• Section 19A• Section 20• Section 21
  11. 11. 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
  12. 12. 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
  13. 13. Renewables and Crofts – Issues for Renewable Hydro DevelopmentsRegulatory 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’
  14. 14. Renewables and Crofts – Issues for Renewable Hydro DevelopmentsThe Water Environment (ControlledActivities) (Scotland) Regulations 2011•Hierarchy of activity and regulation – General Binding Rules [GBR’s] – agricultural pollution control measures / fish farming – Registration – Licenses (Simple or Complex)
  15. 15. Renewables and Crofts – Issues for Renewable Hydro DevelopmentsThe Water Environment (ControlledActivities) (Scotland) Regulations 2011•Hydropower schemes will require a wateruse licence from SEPA•Requirements will depend on size and scale•http://www.sepa.org.uk/water/hydropower.aspx - SEPA Guidance
  16. 16. Renewables and Crofts –Issues for Renewable Hydro Developments Robert Sutherland, Advocate Terra Firma Chambers

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