The land of Scotland and the common good: report

Section 30 - Water Resources

1 A country's natural resources of fresh water are a basic asset that forms part of the land. In Scotland, these resources include all standing or flowing water on the surface of the land ( e.g. rivers, lochs, canals and reservoirs), all groundwater and also that in wetlands.

2 In this Section, the Review Group considers the current arrangements governing the management and use of these fresh water resources, as part of Scotland's system of land ownership. These water resources are a key consideration for the public interest in Scotland. As the preamble to the European Union Water Framework Directive stated, water " is not a commercial product like any other but, rather, a heritage which must be protected, defended and treated as such". ^[1]

3 The freshwater flowing though Scotland's rivers, streams, lochs and other water bodies has, by the nature of its flow, defied ownership. However, during the historical development of Scotland's system of land ownership, the rights to use water became attached to the ownership of the adjacent land. Owners came to have full control over the use of any water course or water body entirely within their land and from an early date, legal principles of common interest were also established. Thus, with rivers and streams that flowed through the lands of more than one owner, the doctrine of natural flow meant that each riparian landowner downstream was entitled to receive the flow undiminished in quantity and quality by upstream riparian land owners. Similarly, with lochs or other water bodies surrounded by more than one adjacent land owner, all adjacent proprietors could use all the surface of the water for fishing, boating and other purposes.

4 From the 18th century, with the importance of water power to the industrial revolution, the common interest rights of riparian land owners became increasingly contested in the courts. These disputes between the private interests of different riparian land owners continued in the 19th century and the current position over their common interests is still largely defined by 19th century case law. ^[2] However, in the second half of that century, legislation started to transfer water rights to various public bodies for the emerging public water supply systems. This public interest in water also led to legislation that began to limit pollution. Legislation on both these fronts continued during the 20th century. However, limited progress had been made by the end of the century.

5 The law relating to water rights in Scotland has, since the Treaty of Union in 1707, always been a matter of Scots law and there has never been a UK water law. ^[3] Thus, as with a range of other aspects of Scots property law mentioned in this report, the limited time for Scottish legislation at Westminster meant that by the time of devolution " Water was just one area crying out for attention from the new devolved Parliament". ^[4] In the case of water, it is one to which much attention has been paid by the Scottish Parliament. ^[5]

6 Since 1999, the Scottish Parliament has passed five pieces of primary legislation relating to water with Acts in 2002, 2003, 2005, 2009 and 2013. Collectively, these Acts have transformed the arrangements governing Scotland's fresh water resources by establishing an integrated public interest statutory framework for the management and use of these resources.

7 The first Act in 2002 established a single Scotland wide public corporation, Scottish Water, to take over the delivery of public water supplies and sewerage services from three regional authorities. ^[6] This has remained in the public sector since, as part of the Scottish Government. The 2003 Act then implemented the European Union Water Framework Directive. ^[7] Amongst other measures, this Act brought in a comprehensive public authorisation system managed by the Scottish Environmental Protection Agency ( SEPA) for all uses of the water environment: abstractions, discharges, impoundments, and river works. ^[8]

8 The next Act in 2005 involved giving the Water Industry Commission for Scotland, the power to set charges for public water rather than just advise Ministers. ^[9] The fourth Act in 2009 implemented the European Union Floods Directive. ^[10] This gave SEPA further powers and interests including in this context, the removal of historic structures in rivers and identification of land that might be used for 'natural flood management' to help address downstream flooding problems. ^[11]

9 The most recent Act in 2013 partly relates to the Scottish Government's commitment to develop Scotland as a 'Hydro Nation' and the Act places a duty on Ministers to develop 'the value of water'. ^[12] Amongst other measures, the Act clarified Scottish Water's powers to enter land management agreements to protect upstream water quality. The Act also gave Scottish Water new compulsory rights of entry to private land for various purposes, where that may encompass a water body that subsequently forms part of the public supply. ^[13]

10 After a long evolution from the 19th century, these Acts have retained the delivery of public water in the public sector and established Scotland's fresh water resources clearly in the public domain, after a long evolution from the 19th century. The new legislation provides a comprehensive statutory public interest framework governing the management and use of Scotland's water. All land owners now need permission for all uses of water and this statutory framework has succeeded the historical position, where the management of the use of Scotland's water resources was based on land ownership. Now the management and use of water is determined by the public interest. As a result, the rights of use of land owners have been significantly reduced. However, as has been observed, these major changes have not involved any challenges by land owners to protect their 'rights' using Article 1 of the First Protocol of the European Convention on Human Rights. ^[14]

11 The Review Group regards the Scottish Parliament's series of Water Acts as a progressive achievement. The Group's view is that riparian rights in Scots property law should also now be brought up to date, to modernise the relationship between property rights and the use of water on, adjacent to or below the land owned. This proximity provides the owners of that land with the capacity to apply to use water, not a right to use it. The common interest rules delineated by the courts in the 19th century have also been superseded by the public interest judgement of statutory regulation.

12 The Group considers this modernisation should also review the current interpretation in Scots property law, that land owners own the beds of rivers and lochs adjacent to their land out to a mid point with any other adjacent land owners. This historic position might now be seen as something of an anomaly and most conspicuously so for major lochs and the public interests in them, such as Loch Ness. These river and loch beds should be seen as an integral part of the public interest in the water that flows on top of them. These beds could therefore be treated as part of the same public domain. Within the new statutory framework, this would reflect that the interests of adjacent land owners, now amounts to the ownership of a right of use over the bed and not a level of possession that amounts to the ownership of the river or loch bed itself.

13 The Review Group recommends that, following the reform by the Scottish Parliament of the arrangements governing the management and use of Scotland's fresh water resources, the riparian rights still attributed to adjacent and surrounding land owners in Scots property law should be reviewed and reformed to reflect the public interest in these resources as now defined.