Reservoirs (Scotland) Act 2011 (the 2011 Act) became law in April 2011 but at present only seven of its 116 sections are in force. For the remainder of the 2011 Act to come into force and ultimately replace the Reservoirs Act 1975 (the 1975 Act), secondary legislation is required. It could therefore be 2016 before the 2011 Act is fully in force.
The main thrust of the 2011 Act is to move the capacity-based approach of the 1975 Act to a more risk-based approach in order to control certain manmade bodies of water. The 2011 Act makes a number of important changes to the regulation of such bodies of water, including the transfer of the regulatory and enforcement functions of the legislation from the local authorities to the Scottish Environment Protection Agency (SEPA). SEPA will therefore be responsible for establishing a Controlled Reservoirs Register and to classify each controlled reservoir as either “high risk”, “medium risk” or “low risk” depending on the potential adverse consequences of an uncontrolled release of water and the probability of such a release, from such a controlled reservoir. However, responsibility for registering each controlled reservoir will lie with the “reservoir manager” who replaces the “undertaker” in terms of the 1975 Act. The definition of reservoir manager is not entirely clear and there may be more than one. However, the default position is that the reservoir manager will be the owner of the controlled reservoir. It is therefore fundamental to the operation of the 2011 Act to be able to identify what a “controlled reservoir” is. Unfortunately, at the present time, this is not entirely clear.
Under the 1975 Act the definition of “reservoir” and “large raised reservoir” were relatively straightforward. A “raised reservoir” was a reservoir designed to hold, or capable of holding, water above the natural level of any part of the land adjoining the reservoir, and a “large raised reservoir” was a reservoir designed to hold, or capable of holding, more than 25,000 cubic meters of water above such level.
The 2011 Act seeks to regulate “controlled reservoirs” and the definition of controlled reservoirs is wider than that of a raised reservoir.
A controlled reservoir is (a) a structure designed or used for collecting and storing water or (b) an artificial (or partly artificial) loch or other artificial (or partly artificial) area , which is capable of holding more than 10,000 cubic meters of water above the natural level of any part of the surrounding land. The type of structure or area is therefore wider in scope than simply reservoirs and the qualifying capacity has been reduced from 25,000 cubic meters to 10,000 cubic meters. Helpfully, the definition contained in the 2011 Act goes on to exclude certain structures or areas from the definition of “controlled reservoirs”. These exclusions include (a) ponds within extractive waste sites or waste facilities, (b) canals or other inland waterways and, most importantly, (c) weirs. Rather unhelpfully (or helpfully depending on your viewpoint) the 2011 Act also provides that the Scottish Ministers:-
(i) may by order provide that a structure or area which at present does not come within the definition of a controlled reservoir, is nevertheless to be treated as a controlled reservoir. Does this mean that a weir which is expressly excluded from being a controlled reservoir in one part of the definition can be treated as a controlled reservoir by order of the Ministers?;
(ii) may by order, vary the qualifying capacity of a controlled reservoir, presumably by reducing the qualifying capacity to below 10,000 cubic meters;
(iii) may enact regulations to help to clarify (a) when a loch or other area is considered to be artificial or partly artificial, (b) how the qualifying capacity is to be calculated and (c) the meaning of “natural level” and “surrounding land”.
Until these regulations have been enacted it is difficult to determine which landowners who have an artificial body of water within their ownership are now caught by the 2011 Act who were not subject to the 1975 Act raised reservoirs regime.