Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Reservoirs (Scotland) Act 2011

Type Act of the Scottish Parliament

Publication 2011-04-12

Last updated 2017-04-01

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

Part 1 — Reservoirs

Chapter 1 — Controlled reservoirs, reservoir managers, etc.

Controlled reservoirs

1

(1) This section (and section 2) determine what is a “controlled reservoir” for the purposes of this Part.

(2) A controlled reservoir is any of the following structures or areas which is capable of holding 10,000 cubic metres or more of water above the natural level of any part of the surrounding land—

(a) a structure designed or used for collecting and storing water,

(b) an artificial (or partly artificial) loch or other artificial (or partly artificial) area.

(3) A combination of more than one of the structures or areas referred to in paragraph (a) or (b) of subsection (2) is to be treated as a controlled reservoir where none of the individual structures or areas is a controlled reservoir under that subsection but––

(a) water does (or could) flow between them, and

(b) there could be an uncontrolled release of 10,000 cubic metres or more of water from the combination.

(4) The Scottish Ministers, having taken into account the matters mentioned in subsection (5), may by order provide that any of the following is to be treated as a controlled reservoir—

(a) a structure or area referred to in paragraph (a) or (b) of subsection (2) which is not a controlled reservoir,

(b) a combination of more than one such structure or area—

(i) between which water does (or could) flow, but

(ii) which does not fall within subsection (3) because there could not be an uncontrolled release of 10,000 cubic metres or more of water from the combination.

(5) The matters are—

(a) the potential adverse consequences of an uncontrolled release of water from the structure or area or (as the case may be) the combination,

(b) the probability of such a release.

(6) The Scottish Ministers may—

(a) by order substitute a different volume of water for the volume for the time being specified in subsections (2), (3)(b) and (4)(b)(ii) and sections 32(3) and (5), 35(2)(b) and 39(3)(b),

(b) by regulations make provision for the purposes of this Part as to—

(i) when a loch or other area is considered to be artificial or partly artificial,

(ii) how the volume of water capable of being held or released is to be calculated,

(iii) the meaning of “natural level” and “surrounding land”.

(7) Before making an order under subsection (6)(a) the Scottish Ministers must consult the Institution of Civil Engineers about the volume of water which should be specified in the order.

Controlled reservoirs: supplementary

2

(1) A controlled reservoir includes its basin, spillways, valves, pipes and any other thing which—

(a) controls the flow of the water,

(b) facilitates the storage of water in it,

(2) The following structures or areas are not controlled reservoirs (and are not to be taken into account in relation to what is to be treated as a controlled reservoir for the purposes of section 1(3) or (4))—

(a) ponds within extractive waste sites or waste facilities,

(b) canals or other inland waterways,

(d) structures or areas of water designed to protect land from the sea,

(e) sewage sludge lagoons,

(f) road and railway embankments,

(g) embanked watercourses.

(3) Regulations by the Scottish Ministers may make provision as to—

(a) what constitutes any of the structures or areas referred to in subsection (2),

(b) what other thing (if any) described in the regulations is not a controlled reservoir (and is not to be taken into account in relation to what is to be treated as a controlled reservoir for the purposes of section 1(3) or (4)).

Reservoir managers

3

(1) This section determines who is the reservoir manager of a controlled reservoir for the purposes of this Part.

(2) Scottish Water is the reservoir manager of a controlled reservoir which is managed or operated by it.

(3) The reservoir manager of a controlled reservoir for which Scottish Water is not the reservoir manager by virtue of subsection (2) is—

(a) any person who manages or operates the reservoir or any part of it (other than the owner of the reservoir or that part of it),

(b) the owner of any part of the reservoir for which no person is reservoir manager by virtue of paragraph (a).

(4) In this section—

(a) managing or operating a reservoir (without prejudice to the generality of that expression) includes controlling of the flow of water in or out of the reservoir, and

(b) a reference to managing or operating a reservoir is, in relation to a reservoir which is being constructed or restored to use (within the meaning of Chapter 5), to be read as referring to proposing to manage or operate the reservoir.

Multiple reservoir managers: supplementary

4

(1) This section applies where by virtue of section 3 there is more than one reservoir manager of a controlled reservoir.

(2) The requirements of this Part apply in relation to each of the reservoir managers (whether or not they make a nomination under subsection (3)).

(3) Any of the reservoir managers (“the nominating manager”) may nominate another of the reservoir managers (“the nominee”) to do any of the following—

(a) fulfil on behalf of the nominating manager any requirements of this Part to which the nominating manager is subject and which are specified in the nomination,

(b) exercise any rights the nominating manager has under this Part and which are so specified.

(4) Where a nomination is made under subsection (3)—

(a) the nominating manager must give notice of the nomination to—

(i) SEPA,

(ii) any construction engineer, inspecting engineer or supervising engineer appointed in relation to the reservoir,

(b) SEPA may notify and consult the nominee in accordance with the nomination,

(c) any construction engineer, inspecting engineer or supervising engineer appointed in relation to the reservoir may give any notice, report, certificate or other document (required by this Part to be given to the reservoir manager of the reservoir) to the nominee in accordance with the nomination.

Duty of multiple reservoir managers to co-operate

5

(1) Where, by virtue of section 3, there is more than one reservoir manager of a controlled reservoir, each of the reservoir managers must co-operate with the other reservoir manager (or managers) of the reservoir so far as is necessary to enable all of the reservoir managers to comply with the requirements to which they are subject under—

(a) section 33(2)(a) or 65(2)(a) (appointment etc. of construction engineer),

(b) section 36(1) or 69(2) (directions of construction engineer as to taking of measures in safety report),

(d) section 45(1)(a) or 65(2)(a) (appointment etc. of inspecting engineer to carry out inspections in accordance with section 46),

(e) section 47(2) (giving inspecting engineer copy of final certificate and latest inspection report),

(f) section 48(1) or 69(2) (directions of inspecting engineer as to taking of measures in inspection report),

(g) section 49(1)(a) or 65(2)(a) (appointment etc. of supervising engineer),

(h) section 50(4) (direction by supervising engineer as to carrying out visual inspection of reservoir),

(i) section 51 (recording of certain matters),

(j) regulations under section 54(1) (reporting of incidents),

(k) regulations under section 55(1) (preparation of flood plans),

(l) section 56 (maintenance of records for controlled reservoirs),

(m) section 57 (display of safety information),

(n) section 97 (affording reasonable facilities to engineers),

(o) section 98 (providing information or assistance to SEPA).

(2) A reservoir manager who fails to comply with subsection (1) commits an offence.

(3) A reservoir manager guilty of an offence under subsection (2) in relation to a controlled reservoir which is, at the time the offence is committed, designated as a high-risk reservoir is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(4) A reservoir manager guilty of an offence under that subsection in relation to any other controlled reservoir is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

Guidance by SEPA: management of reservoirs

6

(1) SEPA must, by such date as the Scottish Ministers direct, publish guidance on—

(a) the management of controlled reservoirs by reservoir managers,

(b) co-operation among reservoir managers of controlled reservoirs where a controlled reservoir has more than one reservoir manager.

(2) Before publishing guidance under subsection (1), SEPA must consult—

(a) the Institution of Civil Engineers,

(b) such other persons as it considers appropriate.

SEPA

7

In this Act “SEPA” means the Scottish Environment Protection Agency.

The 1975 Act and its repeal

8

(1) “The 1975 Act” means the Reservoirs Act 1975 (c.23).

(2) The 1975 Act is repealed.

Chapter 2 — Registration

Controlled reservoirs register

9

(1) SEPA must establish and maintain a controlled reservoirs register.

(2) The controlled reservoirs register is a register containing the following information and documents in relation to each controlled reservoir—

(a) the name (if any) and location of the reservoir,

(b) the maximum volume of water capable of being held in the reservoir,

(d) the risk designation for the time being of the reservoir (and the date on which the designation was given) (see sections 19 and 21),

(e) any different risk designation the reservoir may have had in the past (and where it has had a different risk designation, the dates on which such designation was given and changed),

(f) the name of any construction engineer, inspecting engineer, other qualified engineer or supervising engineer appointed at any time in relation to the reservoir (and the period of any such appointment),

(g) a copy of—

(i) any safety report, safety measure certificate, preliminary certificate, construction certificate or final certificate in relation to a controlled reservoir which is copied to SEPA (or given to it pursuant to section 68),

(ii) any inspection report, interim inspection compliance certificate or inspection compliance certificate in relation to a controlled reservoir which is so copied (or given),

(iii) any written recommendation or written statement by a supervising engineer under section 50(3) or (8) in relation to a controlled reservoir which is so copied (or given),

(h) a map showing the area of land which, in the event of an uncontrolled release of water from the reservoir, would be likely to be flooded.

(3) The Scottish Ministers may by regulations—

(a) require further information or documents specified in the regulations to be contained in the register,

(b) make provision as to the manner in which the information to be contained in the register is to be recorded there.

(4) SEPA must make arrangements for the controlled reservoirs register (or a copy of it) to be available for inspection by any person at all reasonable times.

(5) The Scottish Ministers may by order make provision as to the place (or places) in which the register is (or copies of it are) to be kept.

Reservoir managers’ duty to register with SEPA

10

(1) The reservoir manager of each controlled reservoir must register the reservoir with SEPA in accordance with sections 11 to 13.

(2) The Scottish Ministers may by regulations make provision as to—

(a) the information to be registered,

(b) the time by which information, or any change to information, must be registered.

Controlled reservoirs required to be registered under the 1975 Act

11

(1) Registration under section 10 of a controlled reservoir to which subsection (2) applies must take place before the end of the period of 6 months beginning with the relevant date.

(2) This subsection applies to controlled reservoirs which were, immediately before the relevant date, required to be registered in a large raised reservoirs register.

(3) In this section and sections 12, 13 and 16—

a “large raised reservoirs register” means a register maintained under section 2(2) of the 1975 Act,

“the relevant date” means the date of commencement of section 9.

Controlled reservoirs not required to be registered under the 1975 Act

12

(1) Registration under section 10 of a controlled reservoir to which subsection (2) applies must take place by such time as the Scottish Ministers by order specify.

(2) This subsection applies to controlled reservoirs which are controlled reservoirs on the relevant date but which were not, immediately before that date, required to be registered in the large raised reservoirs register.

Structures or areas which become controlled reservoirs after the relevant date

13

Registration of a controlled reservoir which becomes a controlled reservoir after the relevant date must take place not later than 28 days after the day on which a preliminary certificate is given in relation to it for the first time.

Fees: registration and administration

14

(1) The Scottish Ministers may by regulations make provision allowing SEPA to charge reservoir managers of controlled reservoirs, and requiring reservoir managers to pay—

(a) fees in relation to registration, and

(b) other annual or recurring fees in relation to the performance of functions by SEPA under this Part.

(2) In making regulations under subsection (1) the Scottish Ministers must have regard to the reasonable cost of the exercise of the functions in respect of which the fees are to be charged.

(3) Regulations made under subsection (1) must include provision—

(a) specifying how SEPA is to determine and charge fees,

(b) requiring SEPA—

(i) to set out its fees in a published charging scheme,

(ii) to consult such persons as SEPA considers likely to be affected by the scheme before it publishes (or revises) a scheme.

(4) Regulations made under subsection (1) may include such other matters as the Scottish Ministers consider appropriate, including provision specifying—

(a) the maximum amount of any fee,

(b) the circumstances in which any fee is payable,

(d) how fees may be collected and recovered.

Registration: supplementary

15

(1) Where a person ceases to be a reservoir manager of a controlled reservoir, the person must, not later than 28 days after ceasing to be reservoir manager, give notice to SEPA of that fact and the date on which the person ceased to be reservoir manager.

(2) A person who becomes a reservoir manager of a controlled reservoir must, not later than 28 days after becoming reservoir manager, give notice to SEPA of that fact and the date on which the person became reservoir manager.

(3) Where SEPA receives notice under subsection (1) or (2), it must take such steps as it considers are reasonably required to inform the new reservoir manager, as soon as is reasonably practicable, of the duties of reservoir managers of controlled reservoirs under this Part.

(4) The Scottish Ministers may by regulations make provision requiring SEPA—

(a) to prepare and publish guidance on registration,

(b) to consult the Institution of Civil Engineers in relation to the preparation of such guidance.

Transfer of information from existing relevant authorities

16

(1) Each existing relevant authority must, as soon as practicable after the relevant date, give to SEPA—

(a) the large raised reservoirs register maintained by the authority,

(b) any other documents, records or other information in its possession which relate to the exercise of the authority's functions as an enforcement authority within the meaning of section 2(6) of the 1975 Act (referred to in this section as its “enforcement functions”).

(2) An existing relevant authority must give SEPA such assistance as SEPA may reasonably require for the purposes of facilitating the taking over by SEPA of the authority's enforcement functions.

(3) Nothing in this section affects the validity of anything done by or in relation to an existing relevant authority in the exercise of its enforcement functions before the relevant date.

(4) There may be continued by or in relation to SEPA anything (including legal proceedings) which relates to any of an existing relevant authority's enforcement functions and is in the process of being done by or in relation to the authority immediately before the relevant date.

(5) Anything which was done by an existing relevant authority for the purpose of or in connection with any of its enforcement functions and is in effect immediately before the relevant date has effect as if done by SEPA.

(6) An existing relevant authority is a body which, immediately before the relevant date, is a relevant authority in Scotland for the purposes of the 1975 Act.

Offences: registration

17

(1) Failure by the reservoir manager of a controlled reservoir to comply with any of the following requirements under this Chapter relating to registration is an offence—

(a) the requirements of section 10(1) or of regulations made under section 10(2),

(b) the requirements of section 11(1), 12(1) or 13,

(2) A reservoir manager who, in relation to any requirement referred to in subsection (1), knowingly or recklessly gives information which is false or misleading in a material respect commits an offence.

(3) A reservoir manager guilty of an offence under subsection (1) or (2) in relation to a controlled reservoir which is, at the time the offence is committed, a high-risk reservoir is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(4) A reservoir manager guilty of an offence under either of those subsections in relation to any other controlled reservoir is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(5) It is a defence to a charge in proceedings for an offence under subsection (1) that the person did not know and could not reasonably be expected to have known that the person was the reservoir manager of a controlled reservoir to whom the requirement concerned applied.

Chapter 3 — Risk designation

Provisional risk designation

18

(1) SEPA must, as soon as is reasonably practicable after registering a controlled reservoir in the controlled reservoirs register, give the reservoir a provisional risk designation.

(2) In giving a provisional risk designation, SEPA must take into account the matters mentioned in section 22.

(3) A provisional risk designation is a provisional designation of the reservoir as one of the following types—

(a) a high-risk reservoir,

(b) a medium-risk reservoir,

(4) SEPA gives a controlled reservoir a provisional risk designation by giving the reservoir manager notice specifying—

(a) the provisional risk designation it has given the reservoir,

(b) the reasons for the provisional risk designation,

(d) that any representations must be made not later than the end of the period of 2 months beginning with the day on which the notice is given.

First risk designation

19

(1) SEPA must, as soon as is reasonably practicable after the end of the period referred to in section 18(4)(d) and having taken into account any representations made in that period, give the controlled reservoir a risk designation.

(2) In giving a risk designation, SEPA must take into account the matters mentioned in section 22.

(3) A risk designation is a designation of the reservoir as one of the types referred to in paragraphs (a) to (c) of section 18(3).

(4) SEPA may not give the reservoir a risk designation before the end of the period during which representations may be made under section 18(4).

(5) SEPA gives the reservoir a risk designation by giving the reservoir manager notice—

(a) specifying the risk designation given,

(b) specifying the reasons for the risk designation,

Periodic review of risk designations

20

(1) SEPA must review the risk designation for the time being of a controlled reservoir—

(a) at any time SEPA considers the designation may have ceased to be appropriate,

(b) where the designation was given under section 19 and has not been reviewed under paragraph (a) during the period of 6 years after it was given (whether or not it has been reviewed under section 23), by the end of that period,

(2) In reviewing the risk designation, SEPA must, having taken into account the matters mentioned in section 22, either—

(a) provisionally confirm the risk designation, or

(b) provisionally give the reservoir a risk designation as one of the other types referred to in paragraphs (a) to (c) of section 18(3).

(3) SEPA does as is specified in paragraphs (a) and (b) of subsection (2) in relation to a controlled reservoir by giving the reservoir manager notice specifying—

(a) whether it provisionally confirms the risk designation or provisionally gives the reservoir a different risk designation,

(b) where it provisionally gives the reservoir a different risk designation, the different risk designation concerned,

(d) how representations may be made to SEPA,

(e) that any representations must be made not later than the end of the period of 2 months beginning with the day on which the notice is given.

Decision following a periodic review

21

(1) SEPA must, having taken into account any representations made in accordance with section 20(3), either—

(a) confirm the risk designation the reservoir had immediately before the review, or

(b) give the reservoir a risk designation as one of the other types referred to in paragraphs (a) to (c) of section 18(3).

(2) In doing so, SEPA must take into account the matters mentioned in section 22.

(3) SEPA may not make a decision under subsection (1) before the end of the period during which representations may be made under section 20(3).

(4) SEPA does as is specified in paragraph (a) or (b) of subsection (1) by giving the reservoir manager notice—

(a) specifying whether it confirms the risk designation or gives the reservoir a different risk designation,

(b) where it gives the reservoir a different risk designation, specifying the different risk designation concerned,

(d) giving information about the right of review under section 23 against the risk designation.

Risk designation and periodic review: matters to be taken into account

22

(1) The matters SEPA is required by sections 18(2), 19(2), 20(2) and 21(2) to take into account are—

(a) the potential adverse consequences of an uncontrolled release of water from the reservoir,

(b) the probability of such a release.

(2) For the purposes of subsection (1)(a), potential adverse consequences include—

(a) potential damage to—

(i) human health,

(ii) the environment,

(iii) cultural heritage,

(iv) medical facilities, power supplies, transport, the supply of water for consumption and anything connected with such matters,

(v) other social or economic interests,

(b) such other potential damage as SEPA considers relevant.

(3) The matters which SEPA may take into account in assessing under subsection (1)(b) the probability of an uncontrolled release of water from a reservoir include—

(a) the purpose for which the reservoir is (or is to be) used,

(b) the materials used to construct the reservoir,

(d) the maintenance of the reservoir.

(4) The Scottish Ministers may, after consulting SEPA and the Institution of Civil Engineers, by regulations make further provision about the matters SEPA is to take into account under sections 18(2), 19(2), 20(2) and 21(2).

Review of SEPA’s decisions giving risk designations

23

(1) A reservoir manager of a controlled reservoir who is given notice of a risk designation (under section 19(5) or 21(4)) may apply to SEPA for a review of the designation.

(2) Any such application must be made before the end of the period of 12 months beginning with the date on which the notice was given.

(3) Subject to subsection (4), a risk designation in respect of which an application is made under this section continues to have effect despite the application and the review.

(4) Where as a result of the review SEPA gives the controlled reservoir a different risk designation, the designation which is the subject of the application ceases to have effect from the date on which SEPA gives its decision.

(5) SEPA gives its decision in the review by giving the reservoir manager notice—

(a) specifying whether it confirms the risk designation or gives the reservoir a different risk designation,

(b) where it gives the reservoir a different risk designation, specifying the different risk designation concerned,

(d) giving information about the right of appeal under section 24 against the risk designation following the review.

(6) SEPA may charge a reasonable fee of such amount as it determines in relation to an application for review under this section.

(7) Any fee charged by SEPA under subsection (6) must be returned by it to the reservoir manager in the following circumstances—

(a) where the risk designation which was the subject of the application was as a high-risk reservoir and SEPA's decision in the review is to give a risk designation as a medium-risk reservoir or a low-risk reservoir,

(b) where the risk designation which was the subject of the application was as a medium-risk reservoir and SEPA's decision in the review is to give a risk designation as a low-risk reservoir.

(8) The Scottish Ministers may by regulations make further provision in relation to applications and reviews under this section.

Appeal to the Scottish Ministers following SEPA’s review

24

(1) A reservoir manager of a controlled reservoir who is given notice of SEPA's decision in a review under section 23 may appeal to the Scottish Ministers against that decision.

(2) Any such appeal must be made before the end of the period of 12 months beginning with the date on which the notice under section 23(5) was given.

(3) A risk designation in respect of which an appeal is made under this section continues to have effect while the appeal is pending.

(4) Before determining an appeal the Scottish Ministers—

(a) may, at their own expense, appoint to make recommendations about the risk designation an engineer who is a member of a panel of reservoir engineers established under section 27 who may (by virtue of an order under that section) be appointed under this subsection, and

(b) must take into account—

(i) a recommendation by any engineer appointed under this subsection, and

(ii) the matters mentioned in section 22.

(5) The Scottish Ministers must notify their determination of the appeal by giving the reservoir manager and SEPA notice—

(a) specifying whether they confirm the risk designation or give the reservoir a different risk designation,

(b) where they give the reservoir a different risk designation, specifying which one of the other types referred to in paragraphs (a) to (c) of section 18(3) is the different risk designation,

(6) Any fee charged by SEPA under section 23(6) must be returned by it to the reservoir manager in the following circumstances—

(a) where the risk designation which was the subject of the appeal was as a high-risk reservoir and the Scottish Ministers' decision in the appeal is to give a risk designation as a medium-risk reservoir or a low-risk reservoir,

(b) where the risk designation which was the subject of the appeal was as a medium-risk reservoir and the Scottish Ministers' decision in the appeal is to give a risk designation as a low-risk reservoir.

(7) The Scottish Ministers may by regulations make further provision in relation to appeals under this section.

Guidance by SEPA: risk designation

25

(1) The Scottish Ministers may direct SEPA to publish guidance on the matters it takes into account in giving controlled reservoirs provisional risk designations and risk designations and in reviewing risk designations.

(2) Where the Scottish Ministers give a direction under this section SEPA must, before publishing its guidance, consult and have regard to any advice given to it by the Institution of Civil Engineers.

High-risk reservoirs, medium-risk reservoirs and low-risk reservoirs: further provision

26

(1) References in this Part to a “high-risk reservoir”, “medium-risk reservoir” or “low-risk reservoir” are references to a controlled reservoir designated as such for the time being under section 19, 21, 23 (subject to subsection (3) of that section) or, as the case may be, 24 (subject to subsection (3) of that section).

(2) Chapter 6 of this Part makes provision about requirements for inspection, supervision and recording of particular matters in relation to high-risk reservoirs and medium-risk reservoirs.

Chapter 4 — Panels of reservoir engineers

Panels of reservoir engineers

27

The Scottish Ministers must—

(a) establish one or more panels of reservoir engineers for the purposes of this Part and specify by order the sections of this Part under which the members of any such panel may be appointed,

(b) appoint civil engineers who they consider to be fit and qualified for appointment to such panels to be members of such of the panels as they consider appropriate.

Appointment and removal of panel members

28

(1) A civil engineer who wishes to be appointed to a panel under section 27 must make an appropriate application.

(2) An appointment is for such period as the Scottish Ministers determine.

(3) A civil engineer appointed to a panel is eligible for re-appointment.

(4) The Scottish Ministers may remove an engineer from a panel where they are satisfied that the engineer is not fit or qualified to remain on it.

(5) The Scottish Ministers must give an engineer removed from a panel under subsection (4) notice of the removal.

(6) Notice under subsection (5) must specify the grounds on which the engineer has been removed from the panel.

(7) In this section, “an appropriate application” is an application made in accordance with regulations made by the Scottish Ministers.

(8) The Scottish Ministers may by regulations make provision for the determining and charging of fees in connection with applications for membership of panels established by them under section 27.

Dissolution of panels etc.

29

(1) The Scottish Ministers may dissolve a panel established under section 27.

(2) Before doing so, the Ministers must give reasonable notice to the members of the panel.

(3) Where the Scottish Ministers dissolve a panel whose members might, by virtue of an order under section 27, (if not for the dissolution) still be appointed as construction engineers or inspecting engineers, the Scottish Ministers may allow an engineer who immediately before the dissolution was such an engineer or was the other qualified engineer in relation to a reservoir (see section 47(5)), to continue to act as such in relation to the controlled reservoir concerned for a period of 4 years.

(4) The Scottish Ministers may, by notice, direct that an engineer is no longer entitled to act under subsection (3) where they are satisfied that the engineer is not fit or qualified to do so.

(5) Notice under subsection (4) must specify the grounds on which the engineer has been removed under that subsection.

Review of decisions to appoint or remove civil engineers from panels etc.

30

(1) A civil engineer—

(a) whose application for appointment to a panel established under section 27 is rejected,

(b) who is removed from a panel under section 28(4),

may apply to the Scottish Ministers for a review of their decision.

(2) The Scottish Ministers may by regulations make further provision in relation to applications and reviews under this section, including provision as to determining and charging fees in connection with applications for review under this section.

Consultation with Institution of Civil Engineers

31

(1) The Scottish Ministers must consult the President of the Institution of Civil Engineers (or, if that Institution appoints a committee for the purpose, that committee), before—

(a) establishing a panel under section 27,

(b) making an order under that section,

(d) removing an engineer from a panel under section 28(4),

(e) dissolving a panel under section 29(1),

(f) directing that an engineer is no longer entitled to act under section 29(4),

(g) making a decision in a review under section 30.

(2) The Scottish Ministers may reimburse the Institution of Civil Engineers for any expenses incurred by it by virtue of this section.

Chapter 5 — Construction or alteration of controlled reservoirs

Application of Chapter 5

32

(1) This Chapter applies where a controlled reservoir is to be constructed or subject to alteration.

(2) Subsections (3) to (7) have effect for the purposes of this Chapter.

(3) Any work for the purpose of restoring an existing structure or area (which has previously at any time been capable of holding 10,000 cubic metres or more of water above the natural level of any part of the surrounding land) so that it is capable of so holding such amount of water is to be treated as construction of a controlled reservoir.

(4) Alteration of a controlled reservoir includes—

(a) any work for the purpose of increasing or decreasing the capacity of a controlled reservoir,

(b) any other work in relation to the reservoir (including work which the Scottish Ministers are satisfied might affect its safety) which the Scottish Ministers by regulations specify.

(5) Alteration of a controlled reservoir amounts to discontinuance of a controlled reservoir where the alteration is for the purpose of making the reservoir incapable of holding 10,000 cubic metres of water above the natural level of any part of the surrounding land (but still capable of holding water above the natural level of any part of that land).

(6) Alteration of a controlled reservoir amounts to abandonment of a controlled reservoir where the alteration is for the purpose of making the reservoir incapable of filling with water above the natural level of any part of the surrounding land.

(7) Any reference to—

(a) a controlled reservoir being constructed or subject to alteration is to be construed in accordance with this section,

(b) a controlled reservoir being restored to use is to be construed as a reference to a controlled reservoir being constructed as mentioned in subsection (3),

(c) a controlled reservoir being discontinued is to be construed as a reference to a controlled reservoir being subject to an alteration for the purpose referred to in subsection (5),

(d) a controlled reservoir being abandoned is to be construed as a reference to a controlled reservoir being subject to an alteration for the purpose referred to in subsection (6),

(e) “relevant works” is a reference to any works carried out for the purpose of the construction or alteration of a controlled reservoir.

Notice to SEPA and appointment of construction engineer

33

(1) The reservoir manager of a controlled reservoir which is to be subject to relevant works must, not later than 28 days before the proposed relevant works begin, give notice to SEPA of the proposed works.

(2) The reservoir manager must, not later than 28 days before the proposed relevant works begin—

(a) appoint a construction engineer,

(b) give notice to SEPA of the appointment.

(3) “A construction engineer” is an engineer appointed under this section to supervise the relevant works until a final certificate is issued in respect of the works.

(4) An engineer may be appointed as a construction engineer if the engineer—

(a) is a member of a panel of reservoir engineers established under section 27 who may (by virtue of an order under that section) be appointed under this section,

(b) is not disqualified by virtue of subsection (5) from being appointed as a construction engineer in relation to the reservoir.

(5) An engineer is disqualified from being appointed as a construction engineer in relation to the reservoir if the engineer is employed by any person who is a reservoir manager of the reservoir.

(6) In sections 34 to 41—

(a) references to “the construction engineer” are references to the engineer appointed for the time being as such under this section in respect of the relevant works,

(b) references to “the reservoir manager” are references to the reservoir manager of the controlled reservoir which is the subject of the relevant works.

Inspection, reports, supervision of works etc. by construction engineer

34

(1) The construction engineer must supervise the relevant works in accordance with this section until a final certificate is issued in respect of the works.

(2) The engineer must—

(a) inspect the reservoir,

(b) design any construction or alteration.

(3) Where the reservoir is being constructed or is subject to alteration but is not being discontinued or abandoned, the construction engineer (subject to subsection (6)) may give the reservoir manager a safety report prepared in accordance with section 35.

(4) Where the reservoir is being restored to use, discontinued or abandoned, the construction engineer must give the reservoir manager a safety report.

(5) A safety report given under subsection (4) must (subject to subsection (6)) be given not later than 9 months after the construction engineer is appointed.

(6) Where the appointment of the construction engineer was required by notice from SEPA under section 65(2) (or is to be treated by virtue of section 67(2) as being an appointment by the reservoir manager), the construction engineer must give the reservoir manager a safety report as soon as is reasonably practicable after being appointed.

(7) A construction engineer must, not later than 28 days after giving a safety report under this section, give SEPA a copy of it.

Safety reports

35

(1) A safety report must—

(a) specify any measures the construction engineer considers are necessary in the interests of the safety of the controlled reservoir,

(b) direct the reservoir manager to ensure that any measures specified in the report are taken under the supervision of the construction engineer and within the period of time specified in the report,

(c) where the reservoir manager is required to appoint a supervising engineer (see section 49), specify any matters that the construction engineer considers should be monitored by the supervising engineer until a final certificate is issued in respect of the relevant works,

(d) include such other matters as the Scottish Ministers by regulations specify.

(2) Where a controlled reservoir—

(a) is being restored to use, the measures must include in particular any measures the construction engineer considers should be taken before the reservoir may safely be used for the collection and storage of water,

(b) is being discontinued, the measures must include in particular any measures the construction engineer considers are necessary to secure that the resulting structure or area is incapable of holding 10,000 cubic metres of water above the natural level of any part of the surrounding land,

(c) is being abandoned, the measures must include in particular any measures the construction engineer considers are necessary to secure that the reservoir is incapable of filling with water above the natural level of any part of the surrounding land.

Safety reports: compliance

36

(1) The reservoir manager of a controlled reservoir must (subject to section 59(3)) comply with any direction in a safety report issued to the manager.

(2) The construction engineer must, not later than 28 days after being satisfied that each measure directed in the safety report has been taken, give the reservoir manager a safety measure certificate.

(3) A safety measure certificate must specify—

(a) the safety report to which it relates,

(b) the measure taken,

(4) A construction engineer must, not later than 28 days after giving a safety measure certificate under subsection (2), give SEPA a copy of it.

Preliminary certificates

37

(1) Where the construction engineer considers that the reservoir may safely be filled (wholly or partially) with water or that the level of water should be reduced, the engineer must, as soon as is reasonably practicable after being so satisfied, give the reservoir manager a preliminary certificate.

(2) A preliminary certificate must—

(a) specify a level (the “specified level”) that water in the reservoir must not exceed,

(b) require the reservoir manager to ensure that the level of water does not exceed the specified level,

(c) specify any requirements the engineer considers appropriate as to the manner in which the level of water in the reservoir may be increased or decreased.

(3) A construction engineer must, not later than 28 days after giving a preliminary certificate, give SEPA a copy of it.

(4) A subsequent preliminary certificate applicable to the reservoir replaces any previous preliminary certificate applicable to the reservoir in respect of the relevant works.

(5) A preliminary certificate ceases to have effect on the issue of the final certificate applicable to the reservoir in respect of those works.

Construction certificates

38

(1) The construction engineer must give the reservoir manager a construction certificate as soon as is reasonably practicable after being satisfied that the construction or (as the case may be) alteration has been completed to a satisfactory standard.

(2) The construction certificate must in any event be issued not later than the final certificate in respect of the works.

(3) A construction certificate must—

(a) certify that the construction or (as the case may be) alteration has been executed effectively in accordance with the drawings and descriptions included in the annex to the certificate,

(b) include an annex containing detailed drawings and descriptions giving full information about the works for the construction or (as the case may be) the alteration, including the dimensions, water levels and details of the geological strata or deposits encountered in trial holes or excavations made in connection with the works,

(4) The construction engineer must, not later than 28 days after giving a construction certificate, give SEPA a copy of it.

Final certificates

39

(1) Where the controlled reservoir is being constructed or is subject to alteration but is not being discontinued or abandoned, the construction engineer must give the reservoir manager a final certificate not later than 28 days after being satisfied that the reservoir is sound and satisfactory and may safely be used for the collection and storage of water.

(2) A final certificate given under subsection (1)—

(a) must state that the engineer considers the reservoir is sound and satisfactory and may safely be used for the collection and storage of water,

(b) where the reservoir is a high-risk reservoir and the construction engineer considers that there should be an early inspection of the reservoir, must state when the engineer recommends the inspection should take place,

(c) where the reservoir is a high-risk reservoir or medium-risk reservoir, must specify any matter the construction engineer considers should be monitored, until the first inspection of the reservoir under section 46, by the supervising engineer appointed in relation to the reservoir under section 49,

(d) impose the requirements mentioned in subsection (7).

(3) Where the reservoir is being discontinued, the construction engineer must give the reservoir manager a final certificate, not later than 28 days after being satisfied—

(a) that the discontinuance has been safely completed,

(b) that the resulting structure or area is incapable of holding 10,000 cubic metres of water above the natural level of any part of the surrounding land,

(c) that the resulting structure or area is sound and satisfactory and may safely be used for the collection and storage of water.

(4) A final certificate given under subsection (3) must—

(a) state that the construction engineer is satisfied as to the matters referred to in paragraphs (a) to (c) of that subsection,

(b) impose the requirements mentioned in subsection (7).

(5) Where the reservoir is being abandoned, the construction engineer must give the reservoir manager a final certificate, not later than 28 days after being satisfied—

(a) that the abandonment has been safely completed,

(b) that the resulting structure or area is incapable of filling with water above the natural level of any part of the surrounding land.

(6) A final certificate issued under subsection (5) must state that the engineer is satisfied as to the matters referred to in paragraphs (a) and (b) of that subsection.

(7) The requirements referred to in subsection (2)(d) and (4)(b) are—

(a) that water in the reservoir must not exceed a level specified in the certificate (the “specified level”),

(b) that the reservoir manager must ensure that the level of water does not exceed the specified level,

(c) any requirements the construction engineer considers appropriate as to the manner in which the level of water in the reservoir may be increased or decreased.

(8) A copy of the construction certificate issued in respect of the construction or (as the case may be) alteration must be attached to the final certificate.

(9) The construction engineer must, not later than 28 days after issuing a final certificate, give SEPA a copy of the certificate.

(10) If a final certificate is not issued by the end of the period of 5 years beginning with the date of the first preliminary certificate, the construction engineer must—

(a) not later than 28 days after the expiry of the 5 year period, give the reservoir manager a written statement of the reasons,

(b) at intervals of not more than 12 months thereafter until the final certificate is issued, give the reservoir manager subsequent written statements of the reasons,

Preliminary and final certificates: compliance

40

The reservoir manager of a controlled reservoir must (subject to section 60(3)) comply with the requirements of any preliminary certificate or final certificate for the time being applicable to the reservoir.

Termination of supervision by construction engineer

41

The obligation of the reservoir manager to appoint a construction engineer in respect of the relevant works terminates when the construction engineer gives a copy of the final certificate issued by the engineer in respect of the works to SEPA in accordance with section 39(9).

Offences: construction or alteration

42

(1) Failure by the reservoir manager of a controlled reservoir to comply with any of the following requirements under this Chapter is an offence—

(a) the requirements in section 33(1) (notice to SEPA of proposed relevant works),

(b) the requirements in section 33(2)(a) (appointment of construction engineer),

(d) the requirements in section 36(1) (compliance with direction as to taking of safety measure in safety report),

(e) the requirements in section 40 (compliance with preliminary certificate or final certificate).

(2) A reservoir manager guilty of an offence under subsection (1)(a), (b) or (c)—

(a) in relation to a controlled reservoir which is, at the time the offence is committed, a high-risk reservoir is liable on summary conviction to a fine not exceeding level 5 on the standard scale,

(b) in relation to any other controlled reservoir is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(3) A reservoir manager guilty of an offence under subsection (1)(d) or (e) is liable—

(a) on conviction on indictment to imprisonment for a term not exceeding 2 years, or to a fine, or to both,

(b) on summary conviction to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.

Defences: offences under section 42(1)(d) or (e)

43

It is a defence to a charge in proceedings under section 42(1)(d) or (e) for the person to show both—

(a) that the failure to comply with the requirements concerned was as a result of an accident which could not reasonably have been foreseen or natural cause or force majeure which was exceptional and could not reasonably have been foreseen, and

(b) that the person—

(i) took all practicable steps to prevent an uncontrolled release of water from the reservoir,

(ii) took all practicable steps as soon as was reasonably practicable to rectify the failure, and

(iii) provided particulars of the failure to SEPA as soon as practicable after the failure arose.

Controlled reservoirs subject to relevant works on commencement

44

(1) Subsection (2) applies in relation to controlled reservoirs—

(a) which were, immediately before the commencement date, large raised reservoirs,

(b) which are, on that date, subject to relevant works.

(2) This Chapter, and sections 65 to 67, apply in relation to such controlled reservoirs on and after the commencement date as they apply in relation to controlled reservoirs which are subject to relevant works wholly on or after that date.

(3) Subsection (4) applies in relation to controlled reservoirs—

(a) which were not, immediately before the commencement date, large raised reservoirs,

(b) which are, on that date, subject to relevant works.

(4) This Chapter, and sections 65 to 67, apply on and after the commencement date in relation to such controlled reservoirs subject to the modifications mentioned in subsection (5).

(5) The modifications are—

(a) notice under section 33(1) of the relevant works must be given not later than 28 days after the commencement date,

(b) a construction engineer must be appointed under section 33(2)(a) not later than 28 days after the commencement date,

(d) for section 34(3) to (6) substitute—

(3) The construction engineer must give the reservoir manager a safety report as soon as is reasonably practicable after being appointed and in any event not later than 9 months after being appointed.

(6) In this section—

“the commencement date” means the date on which section 32 is commenced,

“large raised reservoir” has the same meaning as in section 1(1) of the 1975 Act.

Chapter 6 — Other requirements: high-risk reservoirs and medium-risk reservoirs

Appointment of inspecting engineer etc.

45

(1) The reservoir manager of a high-risk reservoir or medium-risk reservoir must—

(a) appoint an inspecting engineer to carry out an inspection of the reservoir at each of the times required by section 46,

(b) not later than 28 days after the appointment, give notice of it to SEPA.

(2) An engineer may be appointed as an inspecting engineer if the engineer—

(a) is a member of a panel of reservoir engineers established under section 27 who may (by virtue of an order under that section) be appointed under this section,

(b) is not disqualified by virtue of subsection (3) from being so appointed in relation to the reservoir.

(3) An engineer is disqualified from being appointed as an inspecting engineer in relation to the reservoir if the engineer—

(a) is employed by any person who is a reservoir manager of the reservoir,

(b) has previously been a construction engineer in relation to the reservoir,

(c) is connected (as a partner, employer, employee or fellow employee in a civil engineering business) with a person who has previously been a construction engineer in relation to the reservoir.

Inspections: timing

46

(1) Subject to subsection (3), inspections of a high-risk reservoir must be carried out—

(a) before the end of the period of 2 years beginning with the date of any final certificate for the time being applicable to the reservoir, and

(b) at each of the following times—

(i) at any time recommended by the supervising engineer under section 50(3),

(ii) at any time recommended in an inspection report under section 47,

(iii) before the end of the period of 10 years beginning with the date of the latest inspection.

(2) Subject to subsection (3), inspections of a medium-risk reservoir must be carried out at each time recommended by the supervising engineer under section 50(3).

(3) Where a construction engineer is appointed to supervise relevant works at a high-risk reservoir or a medium-risk reservoir—

(a) each inspection which, at the date of the appointment, is due to be carried out is cancelled, and

(b) the next inspection must be carried out—

(i) in the case of a high-risk reservoir, in accordance with subsection (1)(a),

(ii) in the case of a medium-risk reservoir, at any time recommended by the supervising engineer under section 50(3) which is after the end of the period of 2 years beginning with the date of the final certificate for the relevant works.

(4) In this section and section 47, references to “the supervising engineer” are references to the engineer appointed for the time being as such under section 49 in relation to the reservoir.

Inspections: duties of inspecting engineers etc.

47

(1) The inspecting engineer must—

(a) inspect the reservoir,

(b) give the reservoir manager, not later than 9 months after the completion of the inspection, an inspection report prepared in accordance with this section,

(2) The reservoir manager must give the inspecting engineer a copy of—

(a) any final certificate for the time being applicable to the reservoir,

(b) the inspection report of the latest inspection (if any) of the reservoir carried out under this section (“the latest report”).

(3) The inspection report—

(a) must specify any measures the inspecting engineer considers should be taken in the interests of the safety of the reservoir (including measures for the maintenance of the reservoir),

(b) must specify whether any measure specified in the inspection report was specified in the latest report,

(c) if any measure specified in the latest report has not been taken and the measure is not specified in the inspection report, must specify why the engineer considers the measure should no longer be taken,

(d) must direct the reservoir manager to ensure—

(i) that any measures specified in the inspection report for the maintenance of the reservoir are monitored by the supervising engineer, and

(ii) that the other measures specified in the inspection report are taken under the supervision of the inspecting engineer or the other qualified engineer within the period of time specified in the inspection report,

(e) must specify when the next inspection of the reservoir should take place,

(f) must specify any matters that the inspecting engineer considers should be monitored by the supervising engineer until the next inspection,

(g) may include recommendations on other matters which the inspecting engineer considers relevant to the maintenance of the reservoir but in relation to which the engineer does not specify a measure to be taken under paragraph (a).

(4) An inspecting engineer must, not later than 28 days after giving an inspection report under this section, give a copy of it to—

(a) SEPA,

(b) the supervising engineer (if a different person).

(5) In this section and section 48—

(a) references to “the inspecting engineer” are references to the engineer appointed for the time being as such under section 45 in relation to the reservoir,

(b) references to “the other qualified engineer” are references to the engineer appointed for the time being as such under section 48 in relation to the reservoir,

(c) references to “the reservoir manager” are references to the reservoir manager of the reservoir which is being inspected.

Inspection reports: compliance

48

(1) The reservoir manager must (subject to section 59(3)) ensure that any direction in an inspection report issued to the manager is complied with.

(2) The reservoir manager—

(a) may appoint any other qualified engineer (being a person eligible to be appointed as an inspecting engineer for the reservoir) to supervise any of the measures specified in the inspection report, and

(b) must, as soon as practicable after making any such appointment, give notice of it to SEPA and the inspecting engineer.

(3) Not later than 28 days after being satisfied that a measure directed in the inspection report has been taken—

(a) the inspecting engineer, or

(b) in relation to any measure for which the other qualified engineer is appointed, the other qualified engineer,

must give to the reservoir manager an interim inspection compliance certificate.

(4) An interim inspection compliance certificate must specify—

(a) the inspection report to which it relates,

(b) the measure taken,

(5) The inspecting engineer or the other qualified engineer must, not later than 28 days after being satisfied that all of the measures directed in the inspection report have been taken, give the reservoir manager an inspection compliance certificate.

(6) The engineer giving an inspection compliance certificate must take an interim compliance certificate given by another engineer under this section to be conclusive of that measure having been taken.

(7) An inspection compliance certificate must specify—

(a) the inspection report to which it relates,

(b) that all of the measures directed in the report have been taken.

(8) The inspecting engineer or the other qualified engineer must, not later than 28 days after giving an interim inspection compliance certificate or an inspection compliance certificate under this section, give SEPA a copy of it.

(9) Where an inspection report directs a measure for the maintenance of the reservoir to be taken in the interests of the safety of the reservoir (specified in accordance with section 47(3)(a))—

(a) no interim inspection compliance certificate is required for that measure, and

(b) no account of that measure is to be taken for the purposes of subsections (4)(c), (5) and (7)(b).

Appointment of supervising engineers etc.

49

(1) The reservoir manager of a high-risk reservoir or medium-risk reservoir must—

(a) appoint a supervising engineer to supervise the reservoir in accordance with section 50 at all times other than the period mentioned in subsection (2),

(b) not later than 28 days after the appointment, give notice of it to SEPA.

(2) A reservoir manager of a controlled reservoir which is being constructed or restored to use (within the meaning of Chapter 5) need not appoint a supervising engineer before a final certificate is issued in respect of the relevant works (see section 39).

(3) An engineer may be appointed as a supervising engineer if the engineer is a member of a panel of reservoir engineers established under section 27 who may (by virtue of an order under that section) be appointed under this section.

Supervising engineer and monitoring of reservoir

50

(1) The supervising engineer must supervise the reservoir in accordance with this section.

(2) The supervising engineer must—

(a) give notice to the reservoir manager of anything that the engineer considers might affect the safety of the reservoir,

(b) monitor any matters specified in a safety report as matters to be monitored by the supervising engineer until a final certificate is issued in respect of the relevant works,

(c) monitor compliance by the reservoir manager with the requirements of any preliminary certificate for the time being applicable to the reservoir,

(d) monitor compliance by the reservoir manager with the requirements of any final certificate for the time being applicable to the reservoir,

(e) monitor any matters specified in any such final certificate as matters that should be monitored by the supervising engineer until the first inspection of the reservoir required under section 46,

(f) monitor compliance by the reservoir manager with the requirements of any direction given in the latest inspection report by virtue of section 47(3)(d)(i),

(g) give notice to the reservoir manager and SEPA of any failure to comply with any requirement of––

(i) a safety report referred to in paragraph (b),

(ii) a preliminary certificate referred to in paragraph (c),

(iii) a final certificate referred to in paragraph (d), or

(iv) a direction referred to in paragraph (f),

(h) monitor any matters specified in the latest inspection report as matters that should be monitored by the supervising engineer until the next inspection of the reservoir required under section 46,

(i) supervise (or ensure that a nominated representative of the engineer supervises) any proposed draw-down in respect of the reservoir,

(j) monitor compliance by the reservoir manager with the requirements of section 51.

(3) If the supervising engineer considers at any time that the reservoir should be inspected in accordance with section 47, the engineer must––

(a) give the reservoir manager a written recommendation to that effect specifying when the inspection should take place, and

(b) not later than 28 days after giving the written recommendation, give SEPA a copy of it.

(4) The supervising engineer may by written direction require the reservoir manager to carry out a visual inspection of the reservoir at intervals specified by the engineer for the purpose of identifying anything that might affect the safety of the reservoir.

(5) The reservoir manager must comply with any direction under subsection (4).

(6) The reservoir manager must––

(a) maintain a written record of each visual inspection carried out in pursuance of a direction under subsection (4),

(b) make that record available on request to the supervising engineer, and

(c) give notice to the supervising engineer of anything identified during such an inspection which might affect the safety of the reservoir.

(7) Notice under subsection (6)(c) must be given as soon as reasonably practicable after the inspection during which the thing was identified.

(8) The supervising engineer must give the reservoir manager, at least every 12 months, a written statement of—

(a) the steps taken by the engineer in relation to the matters referred to in subsection (2)(a) to (h),

(b) any measures taken by the reservoir manager in the interests of the safety of the reservoir or otherwise to maintain the reservoir,

(i) a requirement in a safety report referred to in subsection (2)(b),

(ii) a requirement in a preliminary certificate referred to in subsection (2)(c),

(iii) a requirement in a final certificate referred to in subsection (2)(d),

(iv) a direction referred to in subsection (2)(f),

(v) a recommendation by the supervising engineer under subsection (3),

(vi) a direction by the supervising engineer under subsection (4).

(9) The supervising engineer must give the reservoir manager information for the purpose of enabling the manager to contact the engineer (or in the event of an emergency and the supervising engineer being unavailable, a nominated representative of the engineer).

(10) The supervising engineer must, not later than 28 days after giving a written statement under subsection (8), give SEPA a copy of the statement.

(11) The Scottish Ministers may publish guidance about supervision of high-risk reservoirs and medium-risk reservoirs in accordance with this section.

(12) In this section—

(a) “draw-down” means any intentional reduction in the water level except where done in accordance with the routine operation of the reservoir,

(b) references to “the supervising engineer” are references to the engineer appointed for the time being as such under section 49 in relation to the reservoir,

(c) references to “the reservoir manager” are references to the reservoir manager of the reservoir which is being supervised in accordance with this section.

Recording of water levels etc. and record keeping

51

(1) The reservoir manager of a high-risk reservoir or medium-risk reservoir must maintain a record of the following matters in respect of the reservoir (“the recorded matters”) in accordance with this section—

(a) water levels and depth of water in the reservoir, including the flow of water over any waste weir or overflow,

(b) leakages,

(d) settlements of walls or other works,

(e) such other matters as the Scottish Ministers by regulations specify.

(2) The Scottish Ministers may by regulations make provision as to—

(a) the form of the record to be maintained,

(b) the information to be included in relation to the recorded matters.

(3) A construction engineer, an inspecting engineer or a supervising engineer appointed in relation to the reservoir may give directions to the reservoir manager as to—

(a) the manner in which the information referred to in subsection (2)(b) is to be recorded,

(b) the intervals at which the record is to be updated.

(4) The reservoir manager must comply with any directions under subsection (3).

(5) The reservoir manager must install and maintain such instruments as may be necessary to provide the information to be recorded in relation to the recorded matters.

(6) Sections 56 and 58 make further provision about records to be maintained by the reservoir managers of controlled reservoirs.

Offences: inspection, supervision, record keeping

52

(1) Failure by the reservoir manager of a high-risk reservoir or medium-risk reservoir to comply with any of the following requirements under this Chapter is an offence—

(a) the requirements of section 45(1)(a) and 46 (appointment of inspecting engineer and carrying out of required inspections),

(b) the requirements of section 45(1)(b) (notice of appointment to SEPA),

(d) the requirements of section 49(1)(a) (appointment of supervising engineer),

(e) the requirements of section 49(1)(b) (notice of appointment to SEPA),

(f) the requirements of a direction under section 50(4) (compliance with direction of supervising engineer as to carrying out of visual inspection of reservoir),

(g) the requirements of section 50(6)(c) (notice of identification of thing which might affect the safety of the reservoir),

(h) the requirements of section 51 (including any direction under subsection (3) of that section) (maintenance of record of water levels etc.).

(2) A reservoir manager of a controlled reservoir who fails, without reasonable excuse, to comply with the requirements of section 47(2) (giving inspecting engineer copy of final certificate and latest inspection report) commits an offence.

(3) A reservoir manager guilty of an offence under subsection (1) or (2)—

(a) in relation to a controlled reservoir which is, at the time the offence is committed, a high-risk reservoir is liable on summary conviction to a fine not exceeding level 5 on the standard scale,

(b) in relation to a controlled reservoir which is, at the time the offence is committed, a medium-risk reservoir is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

Defences: offence under section 52(1)(c)

53

It is a defence to a charge in proceedings under section 52(1)(c) for the person to show both—

(a) that the failure to comply with the requirement concerned was as a result of an event which could not reasonably have been foreseen or any natural cause or force majeure which was exceptional and could not reasonably have been foreseen, and

(b) that the person—

(i) took all practicable steps to prevent an uncontrolled release of water from the reservoir,

(ii) took all practicable steps as soon as was reasonably practicable to rectify the failure,

(iii) provided particulars of the failure to SEPA as soon as practicable after the failure arose.

Chapter 7 — Other requirements: controlled reservoirs

Incident reporting

54

(1) The Scottish Ministers may by regulations make provision for the reporting to SEPA of incidents occurring at controlled reservoirs which meet criteria specified in, or otherwise determined in accordance with, the regulations.

(2) The regulations may, in particular—

(a) provide that SEPA or another person—

(i) may specify the criteria,

(ii) is to determine whether a controlled reservoir meets the criteria,

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