The plan shows the location of the Pow. Its tributaries extend for circa 13.7 miles and the ditch drains over 2000 acres of fertile farmland and is used for drainage of surface and foul water by some residential properties.
Indeed the Pow is regarded as a vital part of the endeavour to ensure that land in the area which the Pow serves is not flooded. Despite that, it appears that it is not the responsibility of SEPA, Scottish Water or Perth and Kinross Council. In fact the Pow's management has historically been dealt with by Act of Parliament, from as early as 1698 and that original Act of Parliament has been updated over the years, in 1846 and then again in 1946. Today the Pow is the subject of a Private Member's Bill which has just finished its final stages at the Scottish Parliament and it is also the subject of its own Parliamentary Committee.
The current Bill has been promoted by the incumbent Commissioners acting under the Pow of Inchaffray Drainage Act 1946. Its purpose is to ensure the maintenance, repair and renewal of the Pow and the flora and fauna within it and on adjacent land. The Bill also provides a mechanism for carrying out improvements to maintain effective drainage of the benefited land. In addition it deals with the appointment of Commissioners, Commission meetings, Heritors (being owners of land benefited by the Pow and obliged to maintain it) and how charges for maintaining the Pow are to be calculated. The Bill also provides that activities affecting the Pow and adjacent land, require the consent of the local authority and it provides a mechanism for acquiring that consent and dealing with failures so to do.
It is clear, then, that those affected by the Pow have to be aware of this new Bill: being a Heritor brings both rights and responsibilities.
Heritors and relevant land managers and solicitors all need to be aware of the position and consider how acting in the sale or purchase of land for a Heritor is going to affect the missives of sale.
To illustrate that consideration, there is the matter of the apportionment of these charges in a sale. Will responsibility for payment of the charges due up to the date of conclusion of missives remain with the seller (in the same way as responsibility for payment of local authority notices served on the property)? What is the position of executors selling a property on behalf of a deceased Heritor? Will they be regarded as “owners” (and therefore Heritors) in terms of the new legislation? The same question arises in relation to heritable creditors in possession and trustees in sequestration.
It does not appear that this has been clarified by the new Bill but no doubt the law and conveyancing practice will evolve to deal with these matters after the Bill becomes law.
It is worth noting that the obligation to pay the Commissioners will not appear on the Land Register of Scotland (albeit I understand that in one of the current residential developments affected by the Pow, it does appear that there is some reference to these charges in the titles). That is the current position. However again it may be that in due course the law will be amended to bring these charges within the scope of an “encumbrance” under section 9(1)(f) of the Land Registration (Scotland) Act 2012 and in turn ensuring disclosure to property purchasers. This must surely be a welcome development!
The Pow is an unusual, almost unique, arrangement and pertinent only to a very localised area, but it is true to say that unless you are a landowner or land manager or indeed a solicitor with specific local knowledge or experience of the matter, the rights and obligations relative to the Pow and the charges involved are not matters that would normally be checked for as part of the usual service to a purchaser. Nor would the obligation necessarily be covered under generic apportionment terms in standard missives without a specific clause being introduced, thereby potentially leaving a purchaser exposed to an unexpected cost. It is the kind of information which many practitioners might expect to be noted in sales particulars but having dealt with many sales and purchases in Perthshire I have never seen the Pow referred to. It has also been suggested that clauses in the property questionnaire section of the Home Report might be altered to impose a specific obligation to include details of the Commission and attached charges in relevant cases.
In conclusion, the matter of the Pow needs to be taken seriously by all landowners and managers, farmers and professionals dealing with the sale and purchase of property which is part of the area covered by the new legislation. The law is still evolving in this area but it is important to ensure that you take steps to keep yourself aware of these developments given that necessity of complying with statutes in force.
For more information, please contact the Agricultural and Rural Property Team here at Morton Fraser.
With thanks to Savills for allowing us to use their plan.