Land Drainage (Scotland) Act 1958

1958 CHAPTER 24 6 and 7 Eliz 2

An Act to make provision with respect to the drainage of agricultural land in Scotland and for purposes connected therewith.

[14th May 1958]

Modifications etc. (not altering text)

C1 The text of this Act stands unchanged between 1.2.1991 and 1.12.1991

1 Application for improvement order and making of order by Secretary of State. S

(1) The owner of any agricultural land may apply to the Secretary of State for an order (hereafter in this Act referred to as an “improvement order”) authorising the execution of such drainage works as will improve the drainage of the said land or will prevent or mitigate F1 ... erosion to which that land is subject.

(2) On receiving an application for an improvement order the Secretary of State, if he is satisfied—

(a) that it is in the interests of agricultural production that the drainage of an area consisting of or including the agricultural land to which such application relates or any part of such land should be improved or that F2 ... erosion to which that area is subject should be prevented or mitigated; and

(b) that such drainage could be improved or such F3 ... erosion prevented or mitigated by the execution of drainage works at a cost which is reasonable having regard to the benefit to agricultural production likely to accrue therefrom; and

(c) that it is otherwise expedient for him to do so; shall have power to make an improvement order relating to the said area.

(3) In this Act the area to which an improvement order relates as aforesaid is, in relation to that order, referred to as the “improvement area”.

(4) An improvement order shall be made in accordance with the provisions of Parts I and III of the First Schedule to this Act, and Part IV of that Schedule shall apply with respect to the validity of such an order.

Textual Amendments

F1 Words in s. 1(1) repealed (24.12.2010) by Flood Risk Management (Scotland) Act 2009 (asp 6), s. 97(1), Sch. 3 para. 1(2) (with s. 91); S.S.I. 2010/401, art. 3(h)

F2 Words in s. 1(2)(a) repealed (24.12.2010) by Flood Risk Management (Scotland) Act 2009 (asp 6), s. 97(1), Sch. 3 para. 1(2) (with s. 91); S.S.I. 2010/401, art. 3(h)

F3 Words in s. 1(2)(b) repealed (24.12.2010) by Flood Risk Management (Scotland) Act 2009 (asp 6), s. 97(1), Sch. 3 para. 1(2) (with s. 91); S.S.I. 2010/401, art. 3(h)

2 Contents of improvement order. S

(1) An improvement order shall—

(a) describe the improvement area by reference to a map and specify the extent of that area;

(b) describe particularly and by reference to a map, and specify the extent of, each portion of the agricultural land situated in the improvement area which is in separate ownership or, where the whole of such land is in the ownership of one person, that land, and specify the name and address of the owner of each of such portions or of such land;

(c) contain provisions empowering the authorised persons to execute, in accordance with the order, such drainage works as may be specified therein, being works, whether on land situated in the improvement area or on other land, which in the opinion of the Secretary of State will improve the drainage of that area or will prevent or mitigate F4 ... erosion to which the area is subject, and refer to such plans and specifications as may be necessary for the purpose of specifying the said works adequately;

(d) specify such other works (hereafter in this Act referred to as “protective works”), whether on land situated in the improvement area or on other land, as in the opinion of the Secretary of State will be necessary for the protection of land (hereafter in this Act referred to as “endangered land”) specified in the order as being likely to suffer injury in consequence of the execution of the said drainage works, refer to such plans and specifications as may be necessary for the purpose of specifying such protective works adequately, and provide that the authorised persons shall, on executing any of the drainage works specified in the order, execute also such of the protective works specified therein as have become necessary, in consequence of the execution of those drainage works, for the protection of any endangered land;

(e) provide that where a grant has been made under section nine of this Act in respect of the cost of improvement under the order, the authorised persons shall be obliged to maintain in a good and effective condition any drainage works executed in pursuance of the order, and provide also that the authorised persons shall in any case maintain in a good and effective condition any protective works executed in pursuance of the order so far as such works continue to be necessary for the protection of any endangered land;

(f) specify the estimated cost of improvement;

(g) provide that the cost of improvement and the cost of maintaining any drainage or protective works executed in pursuance of the order shall be borne by the authorised persons and, unless there is only one authorised person, specify the proportions in which, subject to any apportionment made under subsection (3) of section five of this Act, the said persons are to bear such costs;

(h) if the Secretary of State thinks it necessary, prescribe the procedure to be followed by the authorised persons in taking any decision relating to the discharge of their functions under the order; and

(i) incorporate, subject to such modifications as may be specified in the order, such of the provisions of the Second Schedule to this Act as the Secretary of State may consider appropriate.

(2) In this Act references to the authorised persons shall, in relation to an improvement order, be construed as references to the owners for the time being of each portion of the agricultural land situated in the improvement area which is in separate ownership or, so long as such land is in the ownership of one person, as references to the owner for the time being of such land.

(3) In this Act “cost of improvement” means, in relation to an improvement order, any cost incurred by the authorised persons for the purpose of, or in the course of, the discharge by the said persons of their functions under such order or this Act, but does not include any cost incurred by those persons for the purpose of, or in the course of, maintaining any drainage or protective works executed in pursuance of the order.

(4) Before fixing, for the purposes of an improvement order, the proportions in which the authorised persons are to bear the cost of improvement and the cost of maintaining any drainage or protective works executed in pursuance of the order, the Secretary of State shall consult each of the said persons, and in fixing the proportion of such costs to be borne by any one of those persons he shall have regard—

(a) to the extent of the agricultural land owned by that person which is situated in the improvement area, being land the productivity of which is likely to be improved in consequence of the execution of the drainage works specified in the order, and

(b) to the improvement in productivity which is likely to result to the said land from the execution of the drainage works specified in the order, and

(c) to any damage which that person is likely to suffer as owner of the said land by reason of the discharge by the authorised persons of any of their functions under the order in relation to a matter as to which such person has not himself been in default.

(5) A provision in an improvement order specifying the proportions in which the authorised persons are to bear the cost of improvement and the cost of maintaining any drainage or protective works executed in pursuance of the order shall, subject to the provisions of this Act, have effect for the purpose of regulating the liability of the said persons to bear such costs only in a question arising between those persons or any of them.

Textual Amendments

F4 Words in s. 2(1)(c) repealed (24.12.2010) by Flood Risk Management (Scotland) Act 2009 (asp 6), s. 97(1), Sch. 3 para. 1(3) (with s. 91); S.S.I. 2010/401, art. 3(h)

3 Improvement committee. S

(1) An improvement order may, where the whole of the agricultural land situated in the improvement area is not in the ownership of one person, provide for the establishment of a committee (hereafter in this Act referred to as an “improvement committee”) which shall have the duty of discharging on behalf of the authorised persons such of their functions as may be specified in the order.

(2) The members of an improvement committee shall be appointed by the authorised persons from among their number, and an improvement order providing for the establishment of such a committee may also—

(a) contain provisions regarding the constitution of the committee including, without prejudice to the foregoing generality, provisions as to the number of members of the committee and their appointment and tenure of office, the filling of casual vacancies in the committee and the appointment of a chairman thereof;

(b) prescribe the procedure of the committee and fix their quorum;

(c) provide that the proceedings of the committee shall not be invalidated by reason of any vacancy therein or any defect in the appointment of a member thereof;

(d) provide that the committee may from time to time levy on and recover from the authorised persons such sums as are, or in the opinion of the committee will be, necessary for the purpose of enabling the committee to meet the cost of improvement or the cost of maintaining any drainage or protective works executed in pursuance of the order, and provide that such sums shall be levied according to the proportions in which the said persons are liable, whether under the order or by virtue of an apportionment made under subsection (3) of section five of this Act, to bear such costs;

(e) provide that the committee may engage and remunerate a secretary and such other servants as they consider necessary;

(f) provide for the keeping of accounts by the committee, for the auditing of such accounts, and for the submission thereof to the authorised persons at such times as may be specified in the order;

(g) contain provisions for the making of such administrative arrangements as may be necessary or desirable for enabling the committee properly to discharge their functions under the order; and

(h) contain such incidental, consequential and supplemental provisions as may be necessary for the foresaid purposes.

4 Repair of damage and compensation. S

(1) The authorised persons under an improvement order shall, so far as is reasonably practicable,—

(a) make good any damage suffered by any land in consequence of the discharge by those persons of any of their functions under such order, and

(b) replace any fences or other structures removed by them in the discharge of any of the said functions or erect adequate fences or structures in substitution therefor:

Provided that paragraph (b) of this subsection shall not apply in relation to fences or other structures removed by the authorised persons which have become unnecessary in consequence of the execution of any of the drainage or protective works specified in the order.

(2) Compensation shall be payable by the authorised persons under an improvement order to the owner of any land, other than agricultural land situated in the improvement area, and to the occupier of any land, in respect of any damage suffered by such owner or occupier by reason of the discharge by the authorised persons of any of their functions under such order in relation to a matter as to which the owner or occupier has not himself been in default:

Provided that compensation shall not be payable under this subsection to the tenant of an agricultural holding in respect of any damage suffered by him, being damage due to factors which, on a requisition made under subsection (1) or (2) of section six of this Act, would fall to be taken into account in assessing any increase or diminution in the rental value of the holding.

(3) A claim under this section for the making good of any damage to land, for the replacement of any fences or other structures, or for compensation, shall not be maintainable if it is made to the authorised persons after the expiry of two years from the date of the completion of the drainage and protective works specified in the improvement order in question or, where the claim arises out of a particular exercise by the said persons of their functions relating to the maintenance of such works, after the expiry of two years from the date of that particular exercise of those functions.

(4) Any question arising under this section between the authorised persons and the owner or occupier of any land shall be determined, if such land is agricultural land, by the Land Court, and in any other case by a single arbiter agreed upon by the parties or, in default of such agreement, appointed by the sheriff on the application of any of the parties.

5 Provisions regarding liability of authorised persons under improvement order. S

(1) The liability to pay any sum falling on the authorised persons under an improvement order, whether by virtue of such order or this Act, shall fall upon the persons who are the authorised persons at the time when such sum becomes due for payment.

(2) Any sum payable by the authorised persons under an improvement order, whether by virtue of such order or this Act, shall, if it is included in a levy made by an improvement committee in pursuance of the order, be deemed for the purposes of this Act to become due for payment on the date on which notice of such levy is served on the said persons.

(3) Where any agricultural land situated in an improvement area is in the ownership of one person and such land comes on any date to be held by two or more separate owners, the liability to bear the cost of improvement under the improvement order and the cost of maintaining any drainage or protective works executed in pursuance of such order, so far as falling on the first-mentioned person immediately before the said date, shall on and after that date fall on the said owners in such proportions as may be determined by agreement between them or, in default of such agreement, by the Land Court, and such owners shall at their own expense cause a notice in the prescribed form of any apportionment made under this section to be recorded in the Register of Sasines.

(4) In this section “prescribed” means prescribed by regulations made by the Secretary of State by statutory instrument.

Modifications etc. (not altering text)

C2 References in ss. 5(3) and 9(5) to the Register of Sasines or to the recording of a deed therein to be construed as mentioned in Land Registration (Scotland) Act 1979 (c. 33, SIF 31:3), s. 29(2)

6 Variation in rent of agricultural holding in consequence of execution of works thereon. S

(1) Where the drainage and protective works specified in an improvement order have been completed in pursuance of such order, the rent of any agricultural holding situated wholly or partly in the improvement area shall, if the landlord by notice served on the tenant within six months from the date of the completion of the said works so requires, be increased as from the said date by an amount equal to the increase in the rental value of the holding attributable to the execution of those works:

Provided that where any grant has been made under section nine of this Act in respect of the cost of improvement under the said order, the increase in rent provided for by the foregoing provisions of this subsection shall be reduced proportionately.

(2) Where in pursuance of an improvement order any drainage or protective works are executed on agricultural land situated outside the improvement area, the rent of any agricultural holding in which such land is comprised shall, if the tenant by notice served on the landlord within six months from the date of the execution of the said works so requires, be reduced as from the said date by an amount equal to the diminution in the rental value of the holding attributable to the execution of those works.

(3) In assessing, for the purposes of either of the foregoing subsections, any increase or diminution in the rental value of an agricultural holding account shall not be taken of any injury to fixtures, buildings or other improvements which the tenant of the holding would be entitled under the M1 Agricultural Holdings (Scotland) Act 1949, to remove, or for which he would be entitled as aforesaid to be paid compensation by his landlord, on the termination of his tenancy.

(4) Any question arising under this section between the landlord and the tenant of an agricultural holding shall be determined by the Land Court.

Marginal Citations

M1 1949 c. 75.

7 Secretary of State may execute works by agreement. S

The Secretary of State may, at the request of and by agreement with the authorised persons under an improvement order, execute, in such manner as may be agreed between him and those persons, such of the drainage or protective works specified in the said order as may be so agreed, and may recover from those persons the cost of executing the said works.

8 Secretary of State may require execution or maintenance of works. S

(1) Where the Secretary of State is satisfied—

(a) that in consequence of the execution of any drainage works specified in an improvement order the execution of any protective works specified in such order is necessary for the protection of any land, and that the protective works necessary for that purpose have not been executed, or have not been properly executed, by the authorised persons;

(b) that, where a grant has been made under the next following section in respect of the cost of improvement under such an order, any drainage works executed in pursuance of such order are not being maintained in a good and effective condition, or that any protective works executed in pursuance of such an order continue to be necessary for the protection of any endangered land and are not being so maintained;

he may serve on the authorised persons a notice requiring them, within such reasonable period as may be specified in the notice, not being less than four weeks, to take such steps as may be specified therein for the purpose of executing or properly executing or, as the case may be, maintaining such works as may be specified therein, and stating that those persons may, within twenty-one days of the service of the notice, make representations to the Secretary of State against the requirements thereof; and the Secretary of State shall consider any representations so made and may thereafter withdraw the notice or confirm it.

(2) Where the requirements of any notice served under this section, against which no representations have been made as aforesaid, or of any such notice which has been confirmed as aforesaid, have not been complied with, the Secretary of State may himself take the steps specified in the notice, and for the purpose of taking such steps shall have and may exercise any of the powers conferred by the improvement order on the authorised persons.

(3) The Secretary of State may recover from the authorised persons the reasonable cost of taking any such steps as aforesaid, and any question arising under this subsection as to what is the reasonable cost of taking any such steps shall be determined, in default of agreement, by the Land Court.

(4) Anything done under subsection (2) of this section by the Secretary of State shall, for the purposes of this Act other than this section, be deemed to have been done by the authorised persons in the discharge of their functions under the improvement order in question.

9 Exchequer grants in respect of cost of improvement. S

(1) The Secretary of State may, in accordance with arrangements made by him with the approval of the Treasury, make grants towards any expenditure incurred by the authorised persons in meeting the cost of improvement under an improvement order.

(2) The amount which may be paid by way of grant in respect of the cost of improvement under an improvement order shall not exceed one-half of that cost so far as approved by the Secretary of State as having been reasonably incurred.

(3) A grant in respect of the cost of improvement under an improvement order may be paid either after the completion of the drainage and protective works specified in such order or partly in instalments from time to time as the works progress and as to the balance after the completion of the works.

(4) The Secretary of State may, if it appears to him that the drainage and protective works specified in an improvement order are unlikely to be completed, or if those works are not completed to his satisfaction, recover from the authorised persons, according to the proportions in which the said persons are liable, whether under such order or by virtue of an apportionment made under subsection (3) of section five of this Act, to bear the cost of improvement, any payment made by him under this section by way of grant in respect of the cost of improvement under such order.

(5) The Secretary of State shall, when the drainage and protective works specified in an improvement order have been completed to his satisfaction, certify accordingly and shall specify in such certificate the date of the completion of the said works and shall cause the certificate to be recorded in the Register of Sasines.

Modifications etc. (not altering text)

C3 References in ss. 5(3) and 9(5) to the Register of Sasines or to the recording of a deed therein to be construed as mentioned in Land Registration (Scotland) Act 1979 (c. 33, SIF 31:3), s. 29(2)

10 Secretary of State may require certain information. S

(1) For the purpose of enabling him to perform any of his functions under this Act the Secretary of State may require the owner or occupier of any land to state in writing the nature of his own interest in such land and the name and address of any other person known to him as having an interest therein and to furnish the Secretary of State with a particular description of the land, and the Secretary of State may also require any local authority, public undertaker or other person to furnish him with such information as he may specify, being information which in his opinion is necessary for the purpose of enabling him properly to discharge his functions under this Act.

(2) If any person fails to comply with a requirement of the Secretary of State under this section, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding [F5 level 1 on the standard scale] in the case of a first conviction or [F5 level 1 on the standard scale] in the case of a second or any subsequent conviction.

Textual Amendments

F5 Words substituted by virtue of Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), ss. 289E–289G

11 Provisions as to entry and inspection. S

(1) Any person authorised by the Secretary of State in that behalf shall have power at all reasonable times to enter on, inspect and survey any land for the purpose of determining whether, and if so in what manner, any of the powers conferred on the Secretary of State by this Act are to be exercised in relation to that or any other land, or whether, and if so in what manner, any requirement given under any such power has been complied with.

(2) Any person authorised as aforesaid who proposes to exercise any power of entry, inspection or survey conferred by the foregoing subsection shall if so required produce some duly authenticated document showing his authority to exercise such power.

(3) Admission to any land shall not be demanded as of right in the exercise of any such power as aforesaid unless fourteen days’ notice of the intended entry has been given to the occupier of the land.

(4) If any person obstructs any person authorised by the Secretary of State in the exercise of any such power as aforesaid, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding [F6 level 3 on the standard scale].

Textual Amendments

F6 Words substituted by virtue of Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), s. 289H, Sch. 7D and substituted (1.4.1996) by 1995 c. 40, ss. 3, 7(2), Sch. 1, para. 10, Sch. 2, Pt. III

12 Notices, etc. S

(1) Any notice for the purposes of this Act shall be in writing, and, except as otherwise provided in paragraph 5 of the First Schedule to this Act, any notice or other document required or authorised by or under this Act to be served on any person shall be duly served if it is delivered to him or left at his proper address or sent to him by post.

(2) Any such notice or other document required or authorised to be served on the authorised persons under an improvement order shall, if an improvement committee has been established under such order, be duly served if it is served on the secretary of that committee, and any such notice or other document required or authorised to be served on a local authority, a public undertaker or an incorporated company or body shall be duly served if it is served on the clerk or secretary of such authority, undertaker, company or body.

(3) For the purposes of this section and [F7 section seven of the M2 Interpretation Act1978],the proper address of any person on whom any such notice or other document is to be served shall, in the case of the clerk or secretary of any local authority, public undertaker, or incorporated company or body, be that of the registered or principal office of such authority, undertaker, company or body, and in any other case be the last known address of the person in question.

(4) Where any notice or other document is to be served on a person as being the person having any interest in land and it is not practicable after reasonable inquiry to ascertain his name or address, the notice or document may be served by addressing it to him by the description of the person having that interest in the land (naming it) and delivering the notice or document to some responsible person on the land or by affixing it, or a copy of it, to some conspicuous object on the land.

Textual Amendments

F7 Words substituted by virtue of Interpretation Act 1978 (c. 30), s. 25(2)

Marginal Citations

M2 1978 c. 30.

13 Miscellaneous provisions as to orders. S

(1) The Secretary of State may, on the application of any of the authorised persons under an improvement order, make an order varying or revoking such improvement order, and an order under this subsection shall be made in accordance with the provisions of Parts II and III of the First Schedule to this Act, and Part IV of that Schedule shall apply with respect to the validity of any such order.

(2) An improvement order, or an order varying or revoking an improvement order, may contain such incidental, consequential and supplemental provisions as appear to the Secretary of State to be necessary or expedient for the purposes of the order.

14 References to Land Court. S

The provisions of the Small Landholders (Scotland) Acts, 1886 to 1931, with regard to the Land Court shall, with any necessary modifications, apply for the determination of any matter which they are required by or under this Act to determine in like manner as those provisions apply for the determination by the Land Court of matters referred to them under those Acts.

15 Financial provisions. S

(1) All expenses incurred by the Secretary of State under the provisions of this Act shall be defrayed out of monies provided by Parliament.

(2) All sums received by the Secretary of State under the provisions of this Act shall be paid into the Exchequer.

16 Crown rights. S

(1) Subject to the provisions of this section, nothing in this Act or in any order made thereunder shall affect prejudicially any estate, right, power, privilege or exemption of the Crown.

(2) Except with the consent of the appropriate authority, nothing in this Act or in any improvement order made thereunder shall authorise—

(a) the inclusion of any Crown land in an improvement area; or

(b) the execution of any works on Crown land; or

(c) the entry of any person on Crown land.

(3) In this section the expression “Crown land” means land an interest in which belongs to Her Majesty in right of the Crown or land an interest in which belongs to a government department or is held in trust for Her Majesty for the purposes of a government department; and the expression “appropriate authority” means—

(a) in the case of land belonging to Her Majesty in right of the Crown, the Crown Estate Commissioners or other government department having the management of that land [F8 or the relevant person] ;

(b) in the case of land belonging to a government department or held in trust for Her Majesty for the purposes of a government department, that department;

and, if any question arises as to the authority which is the appropriate authority in relation to any land, the question shall be determined by the Treasury.

[F9 (4) In subsection (3), “relevant person”, in relation to any land to which section 90B(5) of the Scotland Act 1998 applies, means the person who manages that land.]

Textual Amendments

F8 Words in s. 16(3)(a) inserted (1.4.2017) by The Crown Estate Transfer Scheme 2017 (S.I. 2017/524), art. 1(2), Sch. 5 para. 7(a)

F9 S. 16(4) inserted (1.4.2017) by The Crown Estate Transfer Scheme 2017 (S.I. 2017/524), art. 1(2), Sch. 5 para. 7(b)

Modifications etc. (not altering text)

C4 S. 16 applied by Mines and Quarries (Tips) Act 1969 (c. 10), s. 34(3)

[F10 17 X1 Provision as to work involving alteration of telegraphic lines. S

[F11 Part 10 of Schedule 3A to the Communications Act 2003 (the electronic communications code)] (which provides a procedure for certain cases where works involve the alteration of [F12 electronic communications apparatus]) shall apply to the authorised persons under an improvement order for the purposes of works in pursuance of that order.]

Editorial Information

X1 Unreliable marginal note

Textual Amendments

F10 S. 17 substituted by Telecommunications Act 1984 (c. 12, SIF 96), s. 109, Sch. 4 para. 36(1)

F11 Words in s. 17 substituted (28.12.2017) by Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 3 para. 6; S.I. 2017/1286, reg. 2(d)

F12 Words in s. 17 substituted (17.9.2003) by Communications Act 2003 (Consequential Amendments) Order 2003 (S.I. 2003/2155), art. 1(1), Sch. 1 para. 2(1)(b)

18 Interpretation. S

(1) In this Act, unless the context otherwise requires,—

• “agricultural holding” means an agricultural holding within the meaning of the M3 Agricultural Holdings (Scotland) Act 1949;

• “agricultural land” means agricultural land as defined in the M4 Agriculture (Scotland) Act 1948, and includes any dwelling-house or other building occupied for the purpose of farming any land;

• “authorised persons” has the meaning assigned to it by subsection (2) of section two of this Act;

• “cost of improvement” has the meaning assigned to it by subsection (3) of section two of this Act;

• “drainage works” means any works for the purpose of draining land or of preventing or mitigating F13 ... erosion to which land is subject, and includes the construction, cleansing, scouring, deepening, widening, straightening or diverting of any watercourse or outfall for water, the construction, installation, alteration or repair of any pump, pump machinery or pump house, the removal of any obstruction, natural or artificial, in any watercourse, and the construction, repair, raising, lowering, widening, strengthening, altering or removal of any embankment, dam, barrier, sluice, weir, wall, culvert or groyne or of any structure or erection for the purpose of defence against water;

• “endangered land” has the meaning assigned to it by paragraph (d) of subsection (1) of section two of this Act;

• “functions” includes powers and duties;

• “improvement area” has the meaning assigned to it by subsection (3) of section one of this Act;

• “improvement committee” means a committee established under an improvement order as provided in subsection (1) of section three of this Act;

• “improvement order” has the meaning assigned to it by subsection (1) of section one of this Act;

• “land” includes land covered by water and includes also salmon fishings;

• “Land Court” means the Scottish Land Court;

• “long lease” means a lease which has been, or is capable of being, [F14 registered in the Land Register of Scotland or ] recorded in the Register of Sasines under the M5 Registration of Leases (Scotland) Act 1857;

• “owner” in relation to any land—

  F15 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  (b) if the land is held on a long lease, means the lessee under that lease;

  and includes any other person who under the Lands Clauses Acts would be entitled to sell and convey or assign the land or the interest of lessee under such long lease, as the case may be, to the promoters of an undertaking, and “ownership” and “owns” shall be construed accordingly;

• “protective works” has the meaning assigned to it by paragraph (d) of subsection (1) of section two of this Act;

• “watercourse” includes any estuary, river, stream, ditch, drain (whether open or closed), cut, culvert, dyke or sluice.

(2) For the purpose of construing references in this Act to agricultural land situated in an improvement area a change in the use of any land so situated occurring after the making of the improvement order in question shall be disregarded.

(3) References in this Act to the date of the completion of the drainage and protective works specified in an improvement order shall be construed as references to the date certified by the Secretary of State under subsection (5) of section nine of this Act as being the date of the completion of the said works.

(4) References in this Act to any enactment shall, unless the context otherwise requires, be construed as references to that enactment as amended by or under any other enactment, including this Act.

Textual Amendments

F13 Words in s. 18(1) repealed (24.12.2010) by Flood Risk Management (Scotland) Act 2009 (asp 6), s. 97(1), Sch. 3 para. 1(4) (with s. 91); S.S.I. 2010/401, art. 3(h)

F14 Words in s. 18(1) inserted (8.12.2014) by Land Registration etc. (Scotland) Act 2012 (asp 5), ss. 122, 123, Sch. 5 para. 12 (with s. 121, Sch. 4 paras. 13, 16); S.S.I. 2014/127, art. 2

F15 Words in s. 18(1) repealed (28.11.2004) by Abolition of Feudal Tenure etc. (Scotland) Act 2000 (asp 5), ss. 71, 77(2), Sch. 13 Pt. 1 (with ss. 58, 62, 75); S.S.I. 2003/456, art. 2

Modifications etc. (not altering text)

C5 References in s. 18(1) to the Register of Sasines or to the recording of a deed therein to be construed as mentioned in Land Registration (Scotland) Act 1979 (c. 33, SIF 31:3), s. 29(2)

Marginal Citations

M3 1949 c. 75.

M4 1948 c. 45.

M5 1857 c. 26.

19 Short title, repeal and extent. S

(1) This Act may be cited as the Land Drainage (Scotland) Act 1958.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F16

(3) This Act shall extend to Scotland only.

Textual Amendments

F16 S. 19(2) repealed by Statute Law (Repeals) Act 1974 (c. 22), Sch. Pt. XI

SCHEDULES

Sections 1, 12, 13.

FIRST SCHEDULE S Procedure for making improvement orders and orders varying or revoking improvement orders and as to the validity of orders

Modifications etc. (not altering text)

C6 Sch. 1 restricted (1.8.1999) by S.S.I. 1999/1, reg. 57

Part I S

Procedure for making improvement orders S

1 S Before making an improvement order the Secretary of State shall prepare a draft order and shall—

(a) serveon—

(i) every owner and every occupier of land situated in the proposed improvement area, and

(ii) every owner and every occupier of land (other than land so situated) on which the execution of drainage or protective works is proposed to be authorised or required by the order, and

(iii) any local authority or other statutory body which in the opinion of the Secretary of State may be affected by the making of the order,

a copy of the draft order together with a notice stating that such owner, occupier, authority or body may, within twenty-eight days of the service of the notice, object in such manner as may be specified in the notice to the making of the order or to any provision contained therein; and

(b) in two successive weeks publish in one or more newspapers circulating in the locality in which the proposed improvement area is situated a notice stating that the draft order has been prepared, describing the said area, specifying the land on which the execution of drainage or protective works is proposed to be authorised or required by the order, naming a place within the locality where a copy of the draft order and of any maps, plans or specifications referred to therein may be inspected at all reasonable hours, and stating that any person may, within twenty-eight days of the first publication of such notice, object in such manner as may be specified in the notice to the making of the order or to any provision contained therein.

In this Schedule—

• “local authority” means any F17 [F18 council constituted under section 2 of the Local Government etc. (Scotland) Act 1994];

• “statutory body” means any body exercising functions conferred on it by or under any enactment.

Textual Amendments

F17 Words substituted by Local Government (Scotland) Act 1973 (c. 65), Sch. 27 Pt. II para. 133

F18 Words substituted in Sch. 1 para. 1 (1.4.1996) by 1994 c. 39, s. 180(1), Sch. 13 para.48; S.I. 1996/323, art. 4(1)(c)

2 S If no objection is duly made under the foregoing paragraph or if all objections so made are withdrawn, the Secretary of State may, subject to the provisions of paragraph 4 of this Schedule, proceed with the draft order with or without modifications.

3 S If any objection duly made as aforesaid is not withdrawn, the Secretary of State shall, before deciding whether to proceed with the draft order, cause a public local inquiry to be held, and after considering the objection and the report of the person who held the inquiry may, if he thinks fit and subject to the provisions of the next following paragraph, proceed with the draft order with or without modifications.

4 S Where the Secretary of State proposes to make any modification in the draft order by virtue either of paragraph 2 of this Schedule or of the last foregoing paragraph he shall, before deciding to proceed with the draft order as so modified, serve on each of the persons referred to in sub-paragraph (a) of paragraph 1 of this Schedule and on any other person who in his opinion may be affected by such modification a notice specifying the modification and stating that such person may, within fourteen days of the service of the notice, make representations in writing concerning the modification to the Secretary of State, and the Secretary of State shall consider any representations so made before he decides whether to proceed with the draft order as so modified.

5 S Where the Secretary of State decides to proceed with a draft order, he shall serve on every owner of agricultural land situated in the proposed improvement area a notice stating that he proposes to make the order on the expiry of twenty-eight days from the service of such notice and requesting that such owner shall, within the said period, inform the Secretary of State in writing in a registered letter addressed to the Secretary of State whether he agrees with the proposal to make the order or objects to such proposal, and the Secretary of State shall, if he has modified the draft order under paragraph 2 or 3 of this Schedule, serve a copy of the draft order as so modified along with any notice under this paragraph.

6 S On the expiry of the period of twenty-eight days referred to in the last foregoing paragraph the Secretary of State shall make the order if and only if—

(a) every owner on whom a notice has been served under that paragraph has informed the Secretary of State in compliance with the request contained in such notice that he agrees with the proposal to make the order; or

(b) a majority of such owners have informed the Secretary of State in compliance with the said request that they agree with such proposal and—

(i) the owners who have so informed the Secretary of State will, if the order is made, be together liable thereunder to bear more than one half of the cost of improvement, and

(ii) the estimated cost of improvement specified in the draft order does not exceed an amount equal to [F19 [F20 three hundred and twenty-five pounds] for each hectare] of agricultural land situated in the proposed improvement area.

Textual Amendments

F19 Words substituted by S.I. 1977/2007, reg. 2, Sch. 1

F20 Words substituted by S.I. 1978/1154, art. 3

7 S Where any owner on whom a notice has been served under paragraph 5 of this Schedule fails to comply with the request contained in such notice, he shall for the purposes of the last foregoing paragraph be deemed to have informed the Secretary of State in compliance with the said request that he agrees with the proposal to make the order.

8 S The Secretary of State may, if it appears to him that the figure of twenty pounds specified in sub-paragraph (b) of paragraph 6 of this Schedule ought to be altered, by order amend that paragraph by substituting for the said figure such higher or lower figure as may be specified in the order.

An order made under this paragraph may be varied or revoked by a subsequent order made thereunder, and the power to make orders under this paragraph shall be exercisable by statutory instrument and no such order shall be made unless a draft thereof has been laid before Parliament and has been approved by a resolution of each House of Parliament.

Part II S

Procedure for making orders varying or revoking improvement orders S

9 S Before making an order varying or revoking an improvement order the Secretary of State shall prepare a draft order and shall—

(a) serve on—

(i) every owner and every occupier of land situated in the improvement area to which the improvement order relates, and

(ii) every owner and every occupier of land (other than land so situated) on which the execution of drainage or protective works is authorised or required by the improvement order, and

(iii) any local authority or other statutory body which in the opinion of the Secretary of State may be affected by the making of the order varying or revoking the improvement order, and

(iv) every other person who in the opinion of the Secretary of State may be affected by the order varying or revoking the improvement order,

a copy of the draft order together with a notice stating that such owner, occupier, authority, body or other person may, within twenty-eight days of the service of the notice, object in such manner as may be specified in the notice to the making of the order or to any provision contained therein; and

(b) in two successive weeks publish in one or more newspapers circulating in the locality in which the said improvement area is situated a notice stating the general effect of the draft order, naming a place within the locality where a copy of the draft order and of any maps, plans or specifications referred to therein may be inspected at all reasonable hours, and stating that any person may, within twenty-eight days of the first publication of such notice, object in such manner as may be specified in the notice to the making of the order or to any provision contained therein.

10 S If no objection is duly made under the foregoing paragraph or if all objections so made are withdrawn, the Secretary of State may, subject to the provisions of paragraph 12 of this Schedule, make the order with or without modifications.

11 S If any objection duly made as aforesaid is not withdrawn, the Secretary of State shall, before deciding whether to make the order, cause a public local inquiry to be held, and after considering the objection and the report of the person who held the inquiry may, if he thinks fit and subject to the provisions of the next following paragraph, make the order with or without modifications.

12 S Where the Secretary of State proposes to make any modification in the draft order by virtue either of paragraph 10 of this Schedule or of the last foregoing paragraph he shall, before deciding to make the order as so modified, serve on each of the persons referred to in sub-paragraph (a) of paragraph 9 of this Schedule and on any other person who in his opinion may be affected by such modification a notice specifying the modification and stating that such person may, within fourteen days of the service of the notice, make representations in writing concerning the modification to the Secretary of State, and the Secretary of State shall consider any representations so made before he decides whether to make the order as so modified.

Part III S

General procedural provisions S

13 S Notwithstanding anything in paragraph 3 or 11 of this Schedule, the Secretary of State may require any person who has made an objection to state in writing the grounds thereof, and may disregard the objection for the purposes of this Schedule if he is satisfied that the objection is frivolous or is concerned exclusively with matters relating to the payment of compensation.

14 S The provisions of [F21 subsections (2) to (8) of section two hundred and ten of the M6 Local Government (Scotland) Act 1973], (which relate to the holding of local inquiries) shall apply in relation to a public local inquiry held under paragraph 3 or 11 of this Schedule as they apply in relation to local inquiries held under the said [F21 section two hundred and ten].

Textual Amendments

F21 Words substituted by virtue of Local Government (Scotland) Act 1973 (c. 65), s. 237(2)

Marginal Citations

M6 1973 c. 65.

Part IV S

Provisions as to the validity of improvement orders and of orders varying or revoking improvement orders S

15 S On making an improvement order or an order varying or revoking an improvement order the Secretary of State shall forthwith—

(a) serve on every person on whom a notice was required to be served under sub-paragraph (a) of paragraph 1 or paragraph 4 or, as the case may be, sub-paragraph (a) of paragraph 9 or paragraph 12 of this Schedule a notice stating that the order has been made; and

(b) publish in one or more newspapers circulating in the locality in which the improvement area to which the improvement order relates is situated a notice stating that the order has been made and naming a place within the locality where a copy of the order and of any maps, plans or specifications referred to therein may be inspected at all reasonable hours; and

(c) cause the order to be recorded in the Register of Sasines.

16 S If any person aggrieved by an improvement order or by an order varying or revoking an improvement order desires to question its validity on the ground that it is not within the powers of this Act or that any requirement of this Act has not been complied with, he may within six weeks from the date of the first publication of the notice referred to in sub-paragraph (b) of the last foregoing paragraph make an application for the purpose to the Court of Session, and if any such application is duly made the Court, if satisfied that the order is not within the powers of this Act or that the interests of the applicant have been substantially prejudiced by a failure to comply with any requirement of this Act, may quash the order either generally or in so far as it affects any property of the applicant; but except as aforesaid the order shall not at any time be questioned in any proceedings whatsoever.

SECOND SCHEDULE S Provisions which may be incorporated in improvement orders

Definitions. S

1 In this Schedule, unless the context otherwise requires,—

• “the Act” means the Land Drainage (Scotland)Act1958;

• “the order” means the improvement order with which any of the provisions of this Schedule are incorporated, with or without modifications, and includes those provisions as so incorporated;

• “the works” means the drainage and protective works authorised or required to be executed by the order;

and other expressions have respectively the same meanings as in the Act.

Permissible limits of deviation. S

2 In the construction of the works the authorised persons may deviate laterally from the lines and may deviate vertically from the levels to any extent not exceeding the limits of lateral and vertical deviation respectively shown on the plans and specifications referred to in the order.

Temporary works. S

3 In addition to executing the works the authorised persons may, in, on or over any land situated within the limits of lateral deviation shown on the plans and specifications referred to in the order or any land shown on the said plans which, being situated outwith those limits, is required for the purpose, construct, lay or erect and maintain any temporary works, that is to say, any coffer dams, flumes, diversion channels, culverts, engines, pumps, plant, machinery, roads, fences, stores, offices or other buildings, or any other works or things required for the purposes of or connected with the works;

Provided that any electrical works or apparatus constructed, laid or erected under this paragraph shall be so constructed, laid or erected, and so maintained and used, as to prevent interference with any [F22 electronic communications apparatus kept installed for the purposes of an electronic communications code network or with the service provided by any such network.]

Textual Amendments

F22 Words in Sch. 2 para. 3 substituted (17.9.2003) by Communications Act 2003 (Consequential Amendments) Order 2003 (S.I. 2003/2155), art. 1(1), Sch. 1 para. 2(2)

Powers of entry. S

4 (1) The authorised persons, or any person to whom they have given authority in that behalf, shall for the purpose of executing or maintaining the works or of executing any temporary works have power at all reasonable times to enter on any land situated within the limits of lateral deviation shown on the plans and specifications referred to in the order or any land shown on the said plans which, being situated outwith those limits, is required for the purpose of executing any temporary works, and for the purpose of obtaining access to any such land may enter on any land in the ownership of a person who owns land situated in the improvement area or on any of whose land the execution of drainage or protective works is authorised or required by the order.

(2) Any power of entry under the foregoing sub-paragraph shall include power to authorise the entry or passage of such persons, vehicles, plant, machinery, supplies or materials as may be necessary, and to authorise the carrying out of work for the purpose of facilitating their passage.

(3) Any person entitled to enter upon any land by virtue of any right of entry under this paragraph shall, if so required, produce evidence of his authority before entering on such land and shall not demand admission as of right unless fourteen days’ notice of the intended entry has been given to the occupier.

Power to cut bushes and scrub and to take down fences. S

5 The authorised persons may, for the purpose of executing or maintaining the works or of executing any temporary works, cut and lay aside, or cut and use for the foresaid purposes, any bushes or scrub timber growing on land situated within the limits of lateral deviation shown on the plans and specifications referred to in the order or on any land shown on the said plans which, being situated outwith those limits, is required for the purpose of executing any temporary works, and may take down and lay aside any fences on such land, take down any dykes thereon, cut and grub out any hedges thereon and generally clear and level such land and remove any obstructions.

Fencing of land, etc. S

6 The authorised persons shall, so far as is necessary for the protection of any persons or animals, fence any land on which the works or any temporary works are being executed, and shall take such measures as may be practicable to prevent stock from straying in consequence of the discharge by them of any of their functions under the order.

Disposal of spoil. S

7 Except as otherwise provided under the order, the authorised persons may dispose of excavated spoil, so far as not required for the purpose of executing the works or any temporary works, by constructing spoil banks along the natural banks of any watercourse situated within the limits of lateral deviation shown on the plans and specifications referred to in the order, or by spreading the spoil on the land adjacent to the natural banks of any such watercourse, or by carrying the spoil away for disposal at a tip or for sale.

Penalty for obstructing authorised persons in exercise of powers. S

8 If any person obstructs the authorised persons in the discharge of any of their functions under the order, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding [F23 level 1 on the standard scale] in the case of a first conviction and [F23 level 1 on the standard scale] in the case of a second or any subsequent conviction.

Textual Amendments

F23 Words substituted by virtue of Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), ss. 289E–289G