Part 1 – the Disused Tips Authority for Wales.
Overview of Part 1
11.Part I of the Act is comprised of sections 1 to 5 which establishes the Authority; introduces Schedule 1, which makes further provisions about the Authority; outlines how the Authority must exercise its functions under the Act and makes provision about both the general and ancillary functions of the Authority.
Section 1 - The Disused Tips Authority for Wales
12.Section 1 establishes the Disused Tips Authority for Wales. It is established as a body corporate which means it is a body that has its own legal rights and responsibilities and is, for example, able to enter contracts. Throughout the Act, references to “the Authority” are to that body.
13.Subsection (3) introduces Schedule 1 which makes further provision about the Authority.
Schedule 1- The Disused Tips Authority for Wales
14.Schedule 1 makes provision about the Authority’s constitution and operational arrangements. Under section 92, section 1 comes into force on 1 April 2027, therefore the Authority is established as a body corporate on that date. Schedule 1 comes into force on 1 April 2027 too (section 92(2)).
15.Paragraph 2 provides that the Authority will have between 4 and 6 non-executive members, appointed by the Welsh Ministers, including a chairing member. One of these members may be appointed as a deputy chairing member.
16.The Authority’s membership will also include the person appointed under paragraph 6 as its chief executive. The first chief executive is to be appointed by the Welsh Ministers, with subsequent chief executives appointed by the non-executive members. In accordance with paragraph 15, the chief executive is the accounting officer for the Authority. The accounting officer’s responsibilities about the accounts and finances of the Authority are as specified by the Welsh Ministers.
17.Paragraph 2(1)(d) provides that the chief executive and non-executives must appoint at least one but no more than two members to the Authority from amongst the Authority’s staff. These members together with the chief executive are known as executive members (paragraph 2(3)(b)). Paragraph 2(4) gives the Welsh Ministers a regulation making power to amend the number of members appointed to the Authority, but the number of non-executive members must always exceed the number of executive members in the interests of promoting independent oversight of the exercise of the Authority's functions.
18.Among other things, the Authority will have the power under Schedule 1 to appoint staff and to establish committees and sub-committees. The Authority will be required to make rules regulating its procedure and the procedure of any of its committees or sub-committees.
19.Schedule 1 also sets out the reporting requirements for the Authority. Paragraph 19 places a duty on the Authority to prepare and publish a corporate plan for each planning period. Paragraph 19(2) requires the corporate plan to set out how the Authority intends to discharge its functions under the Act during the planning period.
20.The first planning period will be a period of 3 years beginning with 1 October 2027. Subsequent planning periods will also run in 3-year cycles. The corporate plan for a planning period must be submitted to the Welsh Ministers for approval before the planning period begins. Before submitting the corporate plan for approval, the Authority must consult such persons as it considers appropriate.
21.Paragraph 20 sets out the Authority's duties in relation to the preparation and publication of an annual report on the exercise of its functions during the preceding financial year. A copy of the report must be sent to the Welsh Ministers, and the Welsh Ministers must lay a copy before the Senedd Cymru.
22.Part 8 of the Schedule makes minor and consequential amendments to existing primary legislation in connection with the establishment of the Authority.
Section 2 - The Authority’s exercise of its functions
23.Subsection (1) provides that the Authority must exercise its functions under the Act with a view to ensuring that disused tips do not threaten human welfare by reason of their instability. Subsection (2) also places a duty on the Authority to promote high standards in relation to the management of disused tips and threats to their stability in exercising its functions. What is meant by a “threat to human welfare” is defined at section 87.
24.By way of example, there could be a threat to human welfare if a disused tip located near a residential area became unstable and where any slippage resulting from instability could result in loss of human life, serious human illness or injury or serious damage to property.
25.Similarly, a threat to human welfare could exist where the failure of a disused tip, due to instability, could block a water course and result in a consequential flooding threat to human welfare.
26.Such a threat could exist where slippage of a disused tip due to instability could block a highway and cause serious disruption to facilities for transport.
27.Similarly, a threat to human welfare could exist where a disused tip located near electrical power lines and pylons becomes unstable and where any ground movement from instability could result in serious disruption to energy supply.
Section 3 - Information, advice and assistance
28.Subsection (1) requires the Authority to provide the Welsh Ministers with such information, advice or assistance about any of their functions as the Welsh Ministers may require. For example, the Welsh Ministers could ask the Authority for information relating to the number of notices under Part 3 issued by the Authority in relation to category 1 tips within a particular period. Subsection (2) provides that the Authority does not have to wait for a request from the Welsh Ministers, and may, of its own initiative, provide the Welsh Ministers with information, advice or assistance in connection with any matter relevant to their functions under this Act or any of their other functions.
29.In accordance with subsection (5), “
30.Subsection (3) provides that the Authority may also give any other person (other than the Welsh Ministers) information or advice on, or assistance with, any matter relating to a particular disused tip, or disused tips in general. Subsection (4) gives the Authority power to charge a fee for the provision of such support under subsection (3). This means for example that the Authority could charge a local authority in England for providing advice and assistance with matters relating to a disused tip in its area, if that tip straddles the border between Wales and England.
31.As the Authority is a public authority, the principles of public law will require any fees charged by it to be reasonable.
Section 4 – Financial assistance
32.Subsection (1) enables the Authority to give financial assistance to any person in respect of relevant expenditure. Subsection (2) defines “
33.Under this section, financial assistance may be given to, for example, individuals, public authorities or corporations. In practice, the types of financial assistance that it is envisaged the Authority will provide includes administration of a grant to fund safety critical maintenance and remedial works to reduce threats to human welfare.
Section 5 - Ancillary powers
34.Section 5 provides that the Authority may do anything which is calculated to facilitate, or which is conducive or incidental to, the exercise of its functions. This ensures that in addition to the specific powers the Authority is given to perform its core functions under the Act, it also has the powers it needs to be able to operate effectively, for example to enter into contracts, or to acquire land to accommodate its staff or equipment.
35.Subsection (2) places a restriction on the ability of the Authority to borrow money. It may only borrow from the Welsh Ministers.
