Chapter 2 – Assessment of Disused Tips
Section 11 - Overview
52.Section 11 provides an overview of the content of Chapter 2.
Sections 12 and 15 - Meaning of “preliminary assessment” and “full assessment”
53.Section 12 defines “
54.Section 15 defines the meaning of a “full assessment” of a disused tip for the purposes of Chapter 2. The definition refers to the criteria for registration, which are described in section 7. In accordance with section 74(1)(c), the Welsh Ministers must issue guidance to the Authority in relation to the exercise of its functions under Chapter 2 of Part 2 (preliminary assessments and full assessment of tips by the Authority). It is anticipated the guidance will state that a full assessment should involve a physical inspection of the disused tip by a suitably qualified person.
55.A full assessment may only take place after a preliminary assessment has been conducted.
Section 13 - Preliminary assessments of all disused tips
56.Subsection (1) places a duty on the Authority to (a) carry out a preliminary assessment in relation to every disused tip in Wales, and (b) produce and publish a report of each assessment.
57.Subsection (2) enables the Authority to publish a report in a redacted form if the Authority considers it necessary to do so in order to avoid disclosing information contrary to any prohibition imposed by an enactment or rule of law. Redaction could, for example, entail removing personal data such as name, address or contact details.
58.There are approximately 2,500 disused coal tips in Wales, and it is estimated there are over 20,000 other disused tips (i.e. not coal) in Wales. Not all disused tips can be assessed at once. Consequently, subsection (3) requires the Authority to prepare a programme of work setting out its proposed approach to, and a timetable for, carrying out the preliminary assessments that are required by section 13.
59.It is anticipated that the programme of works will be developed so that the disused tips (whether they be coal or not) that are currently known to present the greatest threat to human welfare will be the first to receive a preliminary assessment. In respect of disused coal tips, decisions on prioritisation for preliminary assessment will be based on existing data from the Coal Authority.
60.Subsections (4) to (9) make further provision about the programme of work the Authority is required to prepare. In particular, the Authority must send the first programme of work to the Welsh Ministers for approval within 12 months of section 13 coming into force. The Welsh Minsters may approve the programme that is submitted to them by the Authority, or they may modify it prior to approving it. The Authority must publish the programme. The Authority may revise its published programme, subject to the approval of the Welsh Ministers. If it does so, the revised programme must be published as soon as practicable.
61.In accordance with section 72, where the Act requires the Authority to publish anything, this means it must be published on the website (or other electronic facility) the Authority is required to establish and maintain under section 71, and may also be published in any other manner the Authority considers appropriate.
Section 14 – Additional preliminary assessments
62.There will be circumstances where the Authority has carried out a preliminary assessment of a disused tip and has decided it does not meet the criteria for inclusion in the register. An additional preliminary assessment must be carried out and a report of that assessment must be produced and published by the Authority, as soon as practicable, if the Authority considers such an assessment necessary in relation to the relevant tip: (a) because of a change in circumstances; or (b) because information is available that was not taken into account when the previous assessment was carried out. As is the case for preliminary assessment reports under section 13, the Authority may publish the report in a redacted form.
63.An example of a change in circumstances might be the construction of a housing estate or a highway near to a disused tip, which might threaten the stability of the disused tip. An example of new information might be information not previously made available by an owner or occupier of the disused tip that highlights, for instance, evidence of an increased water run-off from neighbouring land that might pose a threat to the stability of the disused tip.
Section 16 – Full assessment of unregistered tip
64.Subsection (1) places a duty on the Authority to carry out a full assessment of an unregistered disused tip if, based on a preliminary assessment under either section 13 or 14, it appears to the Authority that the criteria for the registration of the tip may be met. The Authority is required to produce and publish a report of the assessment.
65.Subsection (2) enables the Authority to publish a report in a redacted form if the Authority considers it necessary to do so in order to avoid disclosing information contrary to any prohibition imposed by an enactment or rule of law. Redaction could, for example, entail removing personal data such as name, address or contact details.
Section 17 - Full assessment of registered tip
66.Section 17 provides that an additional full assessment must be carried out and a report of that assessment must be produced and published by the Authority, as soon as practicable, if the Authority considers such an assessment necessary in relation to the relevant tip: (a) because of a change in circumstances; or (b) because information is available that was not taken into account when a full assessment was last carried out in relation to the tip. As is the case for full assessment reports of an unregistered tip under section 16, the Authority may publish the report in a redacted form.
67.The Authority may, for example, decide to carry out an additional full assessment of a disused tip that is already on the register if it learns that drainage infrastructure under the tip has collapsed since the tip was last subject to a full assessment. Equally, the Authority may decide to carry out a full assessment of a registered tip if it receives information that suggests the tip no longer meets the criteria for registration.
Section 18 – Notice of intention to carry out full assessment
68.Before carrying out a full assessment in relation to a disused tip, subsection (1) places a duty on the Authority to give notice to every owner and every occupier of land to which access is required for the purposes of the assessment.
69.In practice, this means every owner and every occupier of the disused tip will need to be given notice. In addition, where the disused tip cannot be accessed directly from a public highway, the owners and the occupiers of any land the Authority will be required to cross to gain access to the disused tip will also need to be notified. Notice will also be given to owners and occupiers of land near to the disused tip, if access to that land is needed as part of the full assessment: for example, to assess whether there are any interdependencies between tips or to consider whether the criteria for registration (under section 7) are met.
70.An “owner” of land is defined for the purposes of the Act in section 88 to mean the person who owns the freehold title to the land or holds a fixed term tenancy that has at least a year left to run and is not a mortgage term. This means banks and building societies that hold a mortgage on a piece of land are not considered to be owners for the purposes of the Act. Section 88(b) provides that a person who has a reversionary interest in land that will only be realised when such a tenancy comes to an end is not to be considered an owner for the purposes of the Act.
71.The “owner” of the land will, in many cases, be the occupier of the land too. However, there will be cases in which persons other than the “owner” are occupying the land: for example, persons who have a licence to occupy the land, or persons who hold periodic tenancies or tenancies which have less than a year to run. Where this is the case, notice will have to be given to those persons too.
72.Subsection (2) describes what must be included in a notice given under section 18(1). Amongst other things, the notice must specify the date on which access to the land may be needed. This must not be less than 14 days after the date on which the notice is given. So, if a notice is given on 1 November, access cannot be sought until 15 November.
73.The notice must also state that the Authority can apply for a warrant to enter land (in accordance with section 67) if access is refused. This requirement does not apply if the land in question is Crown land, as a warrant cannot be applied for to enter Crown land. Crown land is defined in section 89(2).
Section 19 – Notice of conclusions of full assessment
74.When the Authority produces a report of a full assessment in relation to a disused tip, it must, as soon as practicable, give notice of the conclusions of the report to every owner and every occupier of land on which the tip is situated.
