United Kingdom House of Lords Decisions

Subject_Provisional Order — Private Legislation Procedure — Water Supply — Compensation Water — Amount — Present Manufacturing Interest Small but Capable of Expansion — One-fourth Offered by Promoters — One-third Given by Commissioners — Sundays. Headnote:

This Provisional Order was promoted by the Dunfermline district of the county of Fife, its object being to obtain an adequate supply of water for the district, which included the site of the new naval base to be established at Rosyth. The promoters proposed to obtain their water from the Glenquay Burn, one of the upper tributaries of the Devon. The amount of water which they proposed to abstract was 2,000,000 gallons per day, and of this 500,000 gallons per day, or a quarter of the whole, was to be given to the lower proprietors as compensation water. The drainage area affected by the scheme amounted to 1377 acres.

Mr William James Haig, of Dollarfield, Lord Abercrom by, The Distillers Company, Limited, and the County Council of the county of Clackmannan, appeared, inter alios, as objectors. They did not oppose the scheme as a whole, but maintained that the amount of compensation water proposed was inadequate and should be a third instead of a fourth.

Mr Haig was proprietor of a paper mill, a saw mill, and a bleach work on the Devon, the nearest of which was distant 11 3 4 miles below the point at which the promoters proposed to abstract the water. Lord Abercrom by was the owner of a flour mill and a corn mill driven by water power, 23 3 4 miles below the point of abstraction. The Distillers Company works were 24 3 4miles below the point of abstraction, and they used the water of the Devon not only for the purpose of driving machinery but for certain processes in connection with their manufacturing, and in particular for cooling. The amount of water required by any of these undertakings was, when compared to other manufacturing centres, a small one, and generally speaking the area affected by the promoters' scheme was of an agricultural and pastoral rather than an industrial character.

The position of the County Council of the county of Clackmannan was set forth in the petition as follows: “The valley of the river Devon, of which the Glenquay Burn is a tributary, is a populous district, containing a number of industrial communities … situated within the district of your petitioners … As the river Devon forms the natural outlet for the drainage of these communities and works, there is a great deal of polluting matter which finds its way into the stream, and unless its normal flow is maintained the public health of the district will be injuriously affected … Your petitioners therefore submit that the Order should not be passed without provision being made for a supply on reasonable terms to them for use in the county of Clackmannan prior to the supply of the Dunfermline district.

The promoters argued that looking to the nature of the district and the fact that it was agricultural and pastoral rather than industrial the amount of compensation water proposed was ample. The amount of water used by the objectors was trifling, and under the proposed scheme they would be better off than before, inasmuch as during the summer months they would obtain a regular supply of five times the present minimum flow. Further, the proposed scheme only remotely affected the objectors. The drainage area which the new scheme impounded was 1377 acres, whereas the drainage area on which Mr Haig's mills drew was 28,350 acres; that on which Lord Abercromby and the Distillers Company depended was 48,850 acres; so that in the former case only some 3, in the latter some 5 per cent. of the available water supply was actually affected.

The objectors argued that they were entitled to a third, which was the amount granted in almost every instance. They

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were in the position of ordinary riparian proprietors to whose property the possession of water rights formed an important adjunct and one capable in the future of indefinite expansion. The mere fact that the riparian proprietors might not be using their rights at the moment to the fullest extent was immaterial. They were entitled to compensation on the footing of the fullest possible use. If the amount of compensation water available were capable of variation from time to time the contention of the promoters might be a sound one, but as a matter of fact when the amount has once been fixed it can never subsequently be varied.

The Commissioners decided that a third should be given.

At the adjustment of clauses a question arose as to whether the compensation water was to be given every day or only every “working” day, i.e., whether Sunday was to be included.

The Commissioners decided that it was to be given every day including Sunday.