19th century laws put Scottish hydro scheme in dispute with meditation retreat

Legend has it that when the monks played their electric organ, the lights in the village went dim.

Since then similar projects were developed and now small hydros are at the forefront of moves across Scotland to combat climate change, producing almost one-fifth of renewable electricity output in Scotland.

However, one hydro operator says there is a threat to would-be schemes – “antiquated” ancient riparian rights which see Scotland’s water becoming attached to the ownership of adjacent land.

Harry Gourlay, managing director of H20 Hydro, says he faces being forced to shut down his £600,000 Renfrewshire reservoir scheme because of a dispute with a neighbour who says it disturbs her meditation retreats.

Suzanne Reid, who lives nearby and runs workshops on mediumship, meditation and animal healing on six acres of land around her home near the Maich Water at Kilbirnie, is seeking a court interdict to stop the operation of the hydro scheme because of “noise” which causes “a nuisance”, according to legal documents seen by The Herald on Sunday.

The landmark case, which relies on 19th-century private water rights laws that give powers to property owners affected by projects such as hydros, is due to be heard at the Court of Session on Tuesday.

The Maich Hydro Scheme was constructed in 2014 in a quiet spot within Scotland’s largest regional park, Clyde Muirshiel, and last year produced the equivalent of over 250,000 kilowatt-hours of energy into the National Grid – enough, the developers say, to power around 100 homes for the year.

When operating, a weir extracts water from the river and feeds into an 880-yard pipe route and is deposited into an electric turbine housed in a small isolated timber shed which generates the electricity before the water is pumped back into the Maich.

Planning permission for the project was granted by both North Ayrshire and Renfrewshire councils, and the Scottish Environment Protection Agency (Sepa) granted a water abstraction licence nearly seven years ago.

Ms Reid has said that she objected to the scheme to Sepa and Renfrewshire Council, but both said any “private law” rights were not matters for them.

In her pursuit of H20 Hydro, Ms Reid claims her riparian rights have been breached, arguing that the scheme diverts water away from her property, breaching “common interest obligations”.

She claims there are legal papers over the transfer of rights to the river to the county council of Renfrew dated March 13, 1891, which prohibit the extraction of more than 60,000 gallons of water from the river during any day other than in an emergency. Ms Reid has argued that 60,000 gallons is “considerably less” water than is being extracted.

She says for 60% of the year, when the scheme is in operation, the amount of water flowing past her property is cut from its natural flow by between 50% and 87%. And for 15% of the time it is reduced by more than 80%, she claims.

But she also argues there is greater noise from the turbine house when the water flow is higher and that it can be heard at all locations on her property, with her home placed within 550 yards of the scheme.

Papers say she described it as an “industrial tonal whining noise” that was “highly noticeable and is out of place in the rural setting”.

She believes that had Renfrewshire Council known of the proximity to her home they would have requested an impact assessment be carried out, and she claims planning permission would not have been granted without at least certain conditions.

Legal documents relating to the case state: “The pursuer [Ms Reid] ordinarily operates meditation and spiritual retreats from her subjects [property], and is unable to do so when the water level is reduced.

“The aesthetic pleasure of the river and accordingly the pursuer’s subjects is reduced.”

But Mr Gourlay and H20 say they are seeking proof of any damage to her meditation and spiritual retreat business and believe her arguments are “unfounded in fact”.

“It’s a nonsense. These riparian laws are outdated,” he said. “I am just a 31-year-old who is passionate about doing my part for the environment.

“Our planet is facing huge upheavals, where our climate is going to change completely. And I feel I am dealing with an antiquated system.

“Anyone can say anything.

“The water [in question] belongs to the state, and it is the state that grants you a licence to abstract the water. How can it affect anyone’s property?”

The current dam, near Ladyland Castle, is located within the boundary of an old Scottish Water reservoir that became used as a trout fishery and was decommissioned due to the dam wall failing and nearly flooding the local inhabitants.

In 2008, it emerged that up to 20 households may have to be evacuated amid concerns that the Maich Water reservoir could burst and flood their homes.

Sepa issued a flood watch for the area around the dam, known as Maich Fisheries.

Mr Gourlay says the dam was under threat of bursting due to heavy rainfall and lack of maintenance, and that the hydro scheme helps to mitigate against future flooding.

However, he is up against private water rights in Scotland that became settled in the 18th and 19th centuries, and which govern what can and can’t be done in and beside water courses.

Mr Gourlay believes the system is outdated and is “not fit for a modern society that is moving to a carbon-neutral way of life”.

He added: “It seems there is one

law for large corporations like SSE

and Scottish Water that take water

in a very obtrusive way, and another for us.

“We have made great inroads into protecting the environment by putting small hydros in. In my eyes that’s where the gain is and the planet will be saved.

“It won’t be saved by one giant leap forward. It is going to be saved by hundreds of thousands of people and small businesses like ourselves making an effort to improve the environment for all of us.

“It is sad. People don’t want to build them because the laws to allow you to do it are so convoluted and outdated.

“It is unfortunate we are coming up against the laws of the 19th century which do not equate to now.”

Of his particular case, he said: “I can not dispute the fact that the natural flows have be altered, but my argument is that is why we have a licensing process for abstracting water through Sepa.

“The idea of applying for a water abstraction licence is that Sepa review all the information and then grant a licence with strict guidelines that allows hydro developers to pursue a policy of clean and renewable energy while also safeguarding the natural environment for fish, lichen and other third parties.

“Ms Reid has not been able to demonstrate that she uses the water for anything other than odd claims that she has a meditation company

“I would argue that there is hardly a watercourse in Scotland and the UK that does not have an affected flow from source to sea; this would have been the case since the industrial revolution.

“The water that I am taking does return to the same watercourse, having generated.

“I have spoken to numerous hydro developers and they are all encountering similar issues to me and are pulling out of developing hydro sites across Scotland.

“I do feel like I am being unduly punished despite getting all the correct consents based on environmental and hydrological reports done.”

Ms Reid was approached for comment.

What are Scotland's riparian laws?

The riparian laws are based on common Scots law – rules based on precedent from court cases rather than laws passed in parliament – and were came into being throughout the 18th and 19th centuries.

Due to the use of water-powered mills which peaked between 1730 and 1830, a system of water right was necessary and the lack of a system resulted in a series of disputes in the courts which have framed Scots law.

The resulting water rights system, which was outlined in the case of Morris v Bicket from 1864 and is still in force today, established that you cannot build into the river and block the flow and cannot divert it.

It is said by experts to be "incredibly restrictive" because it means landowners are allowed to take water for drinking, washing and cooking but no other interference with the natural flow is allowed.

Experts say that means that any operation which will materially affect the natural flow of a river requires consent of numerous property owners.

Five years ago the Land Reform Review Group said that private water rights were an area that required reform.