36.Chapter 1 makes provision requiring the Authority to compile and maintain a register of disused tips; setting the criteria for registration and the content of the register; giving a right of public access to the register and placing a duty on the Authority to monitor disused tips in the register.
37.Section 6(1) places a duty on the Authority to compile and maintain an electronic register of disused tips that it has decided (a) pose a threat to human welfare by reason of instability, or (b) could pose such a threat in the event of instability.
38.The process for including disused tips in the register, or removing them from it, is set out in Chapter 3.
39.Section 7 sets out the criteria for registering a disused tip.
40.The criteria for registration are satisfied if either section 7(a) or (b) is satisfied in relation to a particular disused tip. Therefore, a disused tip does not need to be unstable at the time of assessment to be included in the register. It must also be included if it could pose a threat to human welfare (which is defined in section 87 and explained at paragraphs 330 - 331) if it were to become unstable.
41.Subsection (1) provides that the electronic register that the Authority is under a duty to compile and maintain under section 6, must, for each registered tip, include a map identifying the area of the tip. In addition, the register must include the information listed in subsection (2).
42.Subsection (2) sets out what must be included in an entry for a disused tip in the register. This includes a unique identifier given by the Authority to the tip (for example, this could be a reference number such as T28703). Subsection (2)(f) provides that an entry in the register must include any additional information specified in regulations made by the Welsh Ministers. Subsection (3) places a duty on the Welsh Ministers to consult with the Authority before making such regulations.
43.Subsection (4) provides that the Authority may only change the mapped area for a disused tip or change the category that has been awarded to a tip, in accordance with the provisions of Chapter 5.
44.Section 9 requires the Authority to publish the maps and information in the register, other than information specified by regulations made under section 8(2)(f), which does not have to be published. 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) that the Authority is required to establish and maintain under section 71, and it may also be published in any other manner the Authority considers appropriate.
45.Subsection (1) places a duty on the Authority to monitor the stability, and threats to the stability, of each disused tip in the register.
46.To perform its monitoring duty in relation to a category 1 disused tip, subsection (2) requires the Authority to inspect the tip within 6 months of the tip being recorded in the register as a category 1 tip, and to further inspect the tip twice within the period of 12 months beginning with the day on which the first inspection is completed. Thereafter, the Authority is required to inspect the tip twice within each subsequent period of 12 months.
47.To perform its monitoring duty in relation to a category 2 disused tip, subsection (3) requires the Authority to inspect the tip within 12 months of the tip being recorded in the register as a category 2 tip, and to further inspect the tip once within the period of 12 months beginning with the day on which the first inspection is completed. Thereafter the Authority must inspect the tip once within each subsequent period of 12 months.
48.Subsection (4) provides that the Authority may carry out any other monitoring activities (including additional inspections) that it considers appropriate in relation to a category 1 or 2 disused tip. Other monitoring activities might, for example, include the use of remote sensing to detect ground movement.
49.Subsection (5) provides that in order to perform its duty under subsection (1) in relation to category 3 or category 4 disused tips, the Authority may carry out any inspections or other monitoring activities that it considers appropriate.
50.Subsection (6) provides the Welsh Ministers with the power to make regulations to amend subsection (2) or (3) to -
change any period of time, referred to in those subsections, within which an inspection or inspections (as the case may be) must be carried out;
change, in relation to any such period, the number of inspections which the Authority is required to carry out.
51.Section 74(1)(b) places Welsh Ministers under a duty to issue guidance to the Authority in relation to the exercise of its functions under section 10. In accordance with subsection (3) of that section, the Authority must have regard to such guidance in exercising its monitoring functions.
52.Section 11 provides an overview of the content of Chapter 2.
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.
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.
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.
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.
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.
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).
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.
75.Chapter 3 sets out the process that the Authority must follow where it proposes to register a tip or to remove a tip from the register.
76.Where the Authority concludes that the criteria for registering a tip (section 7) are met based on the report of a full assessment (section 16), section 20 places a duty on the Authority to give a “notice of proposed registration” to the persons listed in section 20(2)(a) and (b).
77.For the purposes of subsection (2)(b), persons with an estate or interest in the land who are neither owners (as defined in section 88 of the Act) nor occupiers of the land may include, for example, those with an easement over the land.
78.Subsection (3) describes what must be included in a notice given under subsection (1). For example, the notice must advise the person to whom a notice is given under subsection (2) that they may make representations to the Authority on the proposal to register the tip (including the proposed category for the tip). The notice must give the person a period of at least 30 days, beginning with the day after the day on which the notice is given, to make representations. This means for example that if a notice is given on 1 October a person must be given until at least 31 October to make the representations. The notice must also explain how a person may make representations.
79.The ways of making representations could include, for example, the making of representations by email or post to the Authority.
80.It is anticipated that the Welsh Ministers will give guidance to the Authority to make reasonable adjustments for persons who may find it difficult to make representations using traditional methods.
81.In terms of the substance of the representations, it would be for the person making the representations to determine what additional evidence they wish the Authority to consider when making a decision on registration; this might include information they believe the Authority did not consider when carrying out its assessment.
82.Subsection (4) gives the Welsh Ministers a regulation making power to change the time period for making representations. The power cannot be exercised to reduce the period for making representations to less than 14 days.
83.Section 21 sets out the procedure that the Authority must follow once the period for making representations about a proposal to include a disused tip in the register has expired.
84.Subsections (2) and (3) set out what the Authority must decide and the specific matters to which the Authority must have regard.
85.Subsection (4) provides that the Authority may also have regard to any other information it considers relevant. This could, for example, include information relating to the history of the tip’s construction, proposed development on or around a tip that will affect the tip, or changes to land use. Subsection (5) provides that where the Authority decides the criteria for registration are met, it must include the tip in the register as soon as practicable.
86.Subsection (6) provides the Authority may, if it thinks it is appropriate to do so, register a tip otherwise than in accordance with the proposal contained in the notice of proposed registration. This might occur, for example, where the Authority takes into account representations made in accordance with section 20(3) and places the tip in a different category.
87.Subsections (7) and (8) list the persons to whom the Authority must give notice of its decision and the information that must be contained in the notice.
88.If it appears to the Authority, on the basis of a report of a full assessment under section 17, that the criteria for registration are no longer met in relation to a tip in the register, the Authority must as soon as practicable give a “notice of proposed deregistration” to the persons listed in subsection (2)(a) and (b). The persons listed in subsection (2)(a) and (b) are the same as those required to be notified about a proposal to register a tip under section 20(2).
89.Subsection (3) sets out what a notice of proposed deregistration must contain and the minimum period for making representations.
90.Subsection (4) gives the Welsh Ministers a regulation making power to change the minimum period for making representations. The power cannot be exercised to reduce the period for making representations to less than 14 days.
91.Section 23 sets out the procedure that the Authority must follow once the period for making representations about a proposal to remove a disused tip from the register has expired.
92.Subsections (2) and (3) set out what the Authority must decide and the specific matters to which the Authority must have regard. Subsection (4) provides the Authority may also have regard to any other information it considers relevant.
93.Subsections (6) and (7) list the persons to whom the Authority must give notice of its decision and the information that must be contained in the notice.
94.All disused tips that are entered onto the register will be given a category by the Authority, based on the different degrees to which the disused tips cause the Authority concern. This Chapter explains the categories of disused tip, how the Authority will make decisions on categorisation and provides a process for review of categorisation.
95.Subsection (1) provides that a disused tip may be placed in one of four categories on the register: category 1, 2, 3 or 4. The categories have a numeric descriptor as the register will be available in both English and Welsh.
96.Subsection (2) provides the four categories represent the different degrees to which disused tips cause the Authority concern. Decisions on the categorisation of a tip must be made on the basis of one or more of the factors set out in subsection (3).
97.Subsection (1) places a duty on the Authority to publish a statement of its policy on the categorisation of disused tips. It is anticipated that this statement will include matters such as the Authority’s approach to categorisation and a description of the different categories.
98.Subsection (2) enables the Authority to revise the statement. If it does so, the Authority must publish the statement in its revised form as soon as practicable after making the revisions. It is intended the Authority will publish the statement on its website.
99.Subsection (3) places a duty on the Authority to consult such persons as it considers appropriate before publishing the statement (including in a revised form).
100.When proposing to register a tip under section 20 or deciding to register a tip under section 21, the Authority must have regard to the report of the full assessment carried out under section 16 and follow the policy in the statement published under section 25.
101.The Authority may also have regard to any other information it considers relevant in proposing or deciding on a tip’s category. This might include, for example, information about the tip’s history that may be relevant to its stability.
102.The Act allows the Authority to change a tip’s category following a review. Subsection (1) places a duty on the Authority to review a tip’s category as soon as practicable where the Authority carries out a full assessment of a disused tip that is already in the register and the report concludes the criteria for registration are still met.
103.Subsection (2) gives the Authority the power to review the category of a tip at any other time.
104.Subsection (3) provides that where the Authority considers on review that a disused tip’s category should be changed, it must propose a different category for the tip as soon as practicable.
105.Subsections (4) and (5) mirror section 26(2) and (3), in that these provisions set out the information and documents that the Authority is required or permitted to have regard to in reviewing a disused tip’s category and in proposing a different category. Where there has been more than one full assessment in relation to a disused tip, the Authority may have regard to all of these assessments but is only required to have regard to the report of the most recent assessment.
106.Chapter 5 makes provision about notifiable changes to the register. It defines what is meant by notifiable change, the process that the Authority must follow if it proposes to make a notifiable change, and the process for making a decision on a notifiable change.
107.For the purposes of Chapter 5, a notifiable change means a change to the area shown as the area of a disused tip on the map included in the register, or a change to the disused tip’s category.
108.Subsection (1) describes the persons that the Authority must notify if it proposes to make a notifiable change.
109.Subsection (2) describes what a notice under subsection 1 (i.e. a “notice of a proposed change to the register”) must address.
110.Amongst other things, the notice must advise the person to whom a notice is given under this section that they may make representations to the Authority about the proposal. The notice must give the person a period of at least 30 days beginning with the day after the day on which the notice is given to make representations. This means, for example, that if a notice is given on 1 October a person must be given until at least 31 October to make the representations. The notice must also explain how a person may make representations.
111.The ways of making representations could include, for example, by email or post to the Authority. It is anticipated that the Welsh Ministers will give guidance to the Authority to make reasonable adjustments for persons who may find it difficult to make a complaint using traditional methods.
112.In terms of the substance of the representations, it would be for the person making the representations to determine what additional evidence they wish the Authority to consider when making a decision, this might include information they believe the Authority has not considered or had access to.
113.Subsection (3) gives the Welsh Ministers a regulation making power to change the time period for making representations. The power cannot be exercised to reduce the period for making representations to less than 14 days.
114.The provisions in this section set out the procedure that the Authority must follow in deciding whether to make the change, once the period for making representations about a proposal to make a notifiable change has expired.
115.Subsection (5) provides that in making its decision, the Authority must have regard to any representations about the proposal by a person who was given a notice under section 29. Subsection (6) provides that the Authority may also have regard to any other information it considers relevant. This could, for example, include information relating to the history of the tip and its stability.
116.Subsection (7) provides that where the Authority decides to make a notifiable change, it must update the register as soon as practicable.
117.Subsections (8) and (9) set out the procedure that the Authority must follow to give notice of its decision.
118.Chapter 6 contains provision that supplements the other provisions in Part 2. Section 31 places the Authority under a duty to compile and maintain a list of all disused tips that have had a preliminary assessment under section 13. Section 32 requires the Authority to publish specified notices. Section 33 makes provision for compensation for damage or disturbance arising as a result of specified activity carried out under Chapter 1 or 2 of this Part. It also introduces Schedule 2 - Claims for Contributions by Owners and Contributories. Section 34 makes it a criminal offence to obstruct monitoring activities or assessments under Part 2 of the Act.
119.Subsection (1) places a duty on the Authority to compile and maintain an electronic list of all disused tips which have undergone a preliminary assessment. This means that, in time, all disused tips in Wales will appear on the list, including those that do not meet the criteria for registration under section 7. In accordance with subsection (2), the Authority must include a disused tip in the list as soon as practical after completing the relevant preliminary assessment.
120.Subsection (3) prescribes that an entry in the list must include the name or names by which the tip is commonly known, the location of the tip and a unique identifier given by the Authority to the tip. Subsection (4) requires the Authority to publish the list. In accordance with section 72, where the Act requires the Authority to publish anything, this means it must be published on the Authority’s website (or other electronic facility) established and maintained under section 71, and may also be published in any other manner the Authority considers appropriate.
121.Section 32 provides that where a provision in Chapter 3 or 5 of Part 2 requires a notice to be given to a person, the Authority must publish the notice as soon as practicable after it is given. This means that notices given under sections 20, 21, 22, 23, 29 and 30 must be published. The Authority has the power to publish the notice in a redacted form if the conditions specified in subsection (2) are met.
122.In accordance with section 72, the notices must be published on the Authority’s website (or other electronic facility) established and maintained under section 71, and may also be published in any other manner the Authority considers appropriate.
123.Section 33 provides that the persons referred to in subsection (3) are entitled to recover compensation from the Authority for damage or disturbance resulting from carrying out activities listed in subsection (1).
124.Subsection (4) provides that any dispute arising out of a claim for compensation under this section is to be determined by the court. “Court” is defined in section 90 as the High Court or county court.
125.Subsection (5) provides that Schedule 2 has effect in relation to certain claims for compensation under this section.
126.Under section 74(1)(d), the Welsh Ministers must give guidance to the Authority in relation to the exercise of its functions under section 33.
127.Schedule 2 makes provision in relation to claims by owners or contributories for compensation. “Contributories” are persons in relation to whom a contribution order has been made under section 48.
128.Paragraph 1(1) provides that the Schedule applies to an owner of land where the Authority has carried out operations under section 44 or investigations under section 55 that resulted in the carrying out of operations, the owner has claimed compensation under the Act and notwithstanding any contribution order that may have been made, the owner has expenses to bear in respect of those operations or investigations.
129.Paragraph 1(2) provides that the Schedule also applies to contributories if a contribution may be claimed from them in respect of expenses incurred by an owner of land in carrying out operations under section 35 or by the Authority in carrying out operations under section 44 or investigations under section 55 that resulted in the carrying out of operations, and the contributory has claimed compensation under the Act from an owner of land or the Authority.
130.Paragraph 2 makes provision that applies where an owner of land seeks to enforce a claim for compensation from the Authority under the Act and the Authority is entitled to demand a sum from the owner under section 53.
131.Paragraph 3 makes provision that applies where a contributory seeks to enforce a claim for compensation from the Authority or a landowner and the Authority or the landowner is entitled to demand a sum from the contributory (under section 51 or 53).
132.Paragraphs 2 and 3 prevent those claims for compensation from being enforced, other than by way of an offset against a demand, for a period of 12 months. The purpose of this restriction is to provide an opportunity for the relevant sums to be demanded (and potentially recovered) from the person before compensation has to be paid to the person.
133.Paragraph 4 provides that references to operations in Schedule 2 include works of reinstatement consequential on those operations.
134.Paragraph 5 makes provision relating to the time limit for bringing a claim for compensation referred to in paragraph 1. Section 9 of the Limitation Act 1980 requires the claim to be made within 6 years of the date on which the cause of action accrued, and paragraph 5 sets out when the cause of action is to be regarded as having accrued for that purpose.
135.Subsection (1) provides that it is an offence to intentionally obstruct or interfere with an inspection or other monitoring activity under section 10, or a preliminary or full assessment under Chapter 2.
136.Subsection (2) provides that a person who is found guilty of such an offence is liable on summary conviction to a fine.
137.Subsection (3) provides that a contravention of subsection (1) by the Crown does not make the Crown criminally liable. This is consistent with the policy expressed in section 28(3) of the Legislation (Wales) Act 2019, which provides that an Act of Senedd Cymru does not make the Crown criminally liable, but applies to persons in the service of the Crown as it applies to other persons.