Land Drainage (Scotland) Act 1958

Sections 1, 12, 13.

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

Part IS

Procedure for making improvement ordersS

1SBefore 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 F1[F2council 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.

2SIf no objection is duly made under the foregoing paragraph or if all objections so made are withdrawn, the Secretary of State may, subject to the provisions of paragraph 4 of this Schedule, proceed with the draft order with or without modifications.

3SIf any objection duly made as aforesaid is not withdrawn, the Secretary of State shall, before deciding whether to proceed with the draft order, cause a public local inquiry to be held, and after considering the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.

4SWhere 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.

5SWhere 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.

6SOn 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 [F3[F4three hundred and twenty-five pounds] for each hectare] of agricultural land situated in the proposed improvement area.

7SWhere 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.

8SThe 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 IIS

Procedure for making orders varying or revoking improvement ordersS

9SBefore 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.

10SIf 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.

11SIf 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.

12SWhere 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 IIIS

General procedural provisionsS

13SNotwithstanding 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.

14SThe provisions of [F5subsections (2) to (8) of section two hundred and ten of the M1Local 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 [F5section two hundred and ten].

Part IVS

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

15SOn 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.

16SIf 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.