Part 3 – Dealing With Tip Instability and Threats to Tip Stability
Chapter 1 - Requiring an Owner of Land to Carry Out Operations
Overview of Chapter
138.Chapter 1 gives the Authority a power to give an owner of land a notice to require the owner to carry out operations on that land to prevent or deal with threats to the stability of disused tips, or to stabilise disused tips or prevent them from becoming more unstable, so as to avoid or reduce threats to human welfare. It makes provision in relation to the owner’s right to enter their land to carry out operations in situations where the owner is not in occupation of their land. It also makes provision requiring the Authority to give interested parties, such as occupiers of the land, copies of any notice requiring the owner to carry out operations. The Chapter also makes provision for related matters, such as rights of appeal against a notice and the imposition of a penalty for a failure to comply with a notice. It also enables the Authority to cancel a notice after it has been given and makes provision for reimbursement of expenses in such a situation.
Section 35 – Notice requiring owner of land to carry out operations
139.Section 35 gives the Authority the power by notice to require the owner of land to carry out specified operations on the land if the Authority thinks the operations are necessary to fulfil the objective set out in subsection (2).
140.Subsection (2) provides the objective is to (a) prevent or deal with threats to the stability of a disused tip, or (b) to stabilise a disused tip or prevent a disused tip from becoming more unstable, so as to avoid or reduce threats to human welfare. Therefore, the Authority has the power to intervene in the interests of the stability of disused tips at various stages, including by taking pre-emptive action.
141.“Operations” are defined in section 90 as including, but not limited to, building and engineering operations.
142.The Authority is given the power to issue notices to owners of land. This includes owners of disused tips but may also include owners of land that is not covered by a disused tip. In practice, such land is likely to be land that is immediately adjacent to a disused tip where conditions on that land are having a direct impact, or could potentially have a direct impact, on the stability of the disused tip.
143.The operations that might be required by a notice will vary in nature and degree. Some operations might be relatively minor in nature, such as clearing detritus from a culvert to allow proper drainage that might prevent a disused tip becoming unstable. Equally, a notice could require a major overhaul of a disused tip’s drainage system that is no longer serviceable.
144.An example of the type of operations that might be required to be undertaken by an owner of land that is not a disused tip might include operations to capture and re-route water run-off which is uncontrollably discharging onto a disused tip from adjacent land and causing instability.
145.Subsections (3) and (4) set out the procedural requirements the Authority must follow in giving a notice under this section.
146.The Welsh Ministers intend to issue guidance to the Authority about its functions under this Chapter. This is likely to include guidance on matters such as allowing sufficient time, when setting deadlines for the completion of operations, for the owners to obtain the necessary permissions or permits to carry out the operations, so as to ensure that the timeframe given for the completion of operations is reasonable.
Section 36 – Owner's right of entry onto land etc
147.Section 36 recognises that owners who are not in occupation of their land, or any part of it, need to be able to enter their land if they receive a notice under section 35 that requires them to carry out operations on the land.
148.Subsection (1) provides that if an owner of land who is given a notice under section 35 is not in occupation of the land on which the operations specified in the notice must be carried out, and the owner’s estate in the land is superior to the estate or interest of the occupier, the owner has the right to enter the land (or part of the land) to carry out the operations and any consequential works of reinstatement. Such reinstatement works might include works to reinstate agricultural land. An example where the owner’s estate is superior is where the owner holds the freehold estate in the land and the occupier merely has a licence to occupy the land.
149.Subsection (2) provides that an owner exercising a right of entry under subsection (1) may take other persons, equipment or materials onto the land. This is to facilitate the carrying out of the required operations.
150.Subsection (3) gives an owner who is given a notice under section 35 the power to remove and dispose of any property situated on the land that belongs to another person, if that the removal and disposal is for the purposes of carrying out the operations required by the notice. Such property might include machinery that needs to be moved before the operations can commence or could comprise materials from the disused tip itself.
151.Subsection (4) provides that if the owner of the land disposes of such property by selling it, the owner must account to the owner of the property for the proceeds of sale. However, subsection (5) enables the owner to deduct any expenses that are reasonably incurred in selling the property and to offset the proceeds of sale against any sum the owner of the land is entitled to recover from the owner of the property under Chapter 3.
Section 37 – Duty to give interested parties copies of notice
152.Subsection (1) provides that where the Authority gives notice to an owner of land under section 35 requiring the carrying out of operations, it must also give a copy of the notice to any other person with an interest in the notice. This is to ensure that anyone who might be affected by the carrying out of operations on the land, or who might be required to contribute towards the cost of carrying out the operations, is informed about them. Subsection (4) requires the Authority to give copies of the notice within 7 days, beginning with the day on which the notice was given to the owner.
153.Subsection (2) prescribes the persons who (in addition to the owner) are persons with an interest in the notice.
154.The persons listed in subsection (2) include persons whose past conduct could have caused or contributed to the need for a notice to be served and who, in accordance with the provisions of section 48, could be required by the court to contribute to the costs of the operations under a contribution order. For example, a person who, to the Authority’s knowledge, has within any time in the 12 years before the notice was given to the owner used the disused tip to deposit waste from a mine or quarry.
Section 38 – Right of owner and interested parties to appeal against notice
155.Section 38 gives an owner of land who is given a notice requiring the carrying out of operations on land pursuant to section 35, or a person who is given a copy of the notice under section 37, a right to apply to the Welsh Ministers to vary or cancel the notice.
156.Subsection (3) sets out at paragraphs (a) to (f) the grounds for an appeal under this section. Paragraph (f) enables an appeal to be brought on procedural grounds where it is contended there is a material defect or error in, or in connection with, the notice. This might include, for example, the appellant contesting that the notice provides insufficient information to enable compliance.
157.Subsection (4) also gives an owner who is served a notice under section 35 the right to apply to the Welsh Ministers to vary or cancel a notice on the grounds the owner is unable to meet the costs of the operations required by the notice.
158.An appeal might be brought on this ground where, for example, a private owner of a disused tip is faced with a notice requiring costly operations that they cannot afford. A landowner who makes a successful application under subsection (4) will not be liable for the criminal offence under section 41 of failing to comply with a notice issued under section 35. If the application succeeds and the section 35 notice is cancelled, the Authority will nonetheless be able to issue a notice under section 44 to ensure the operations are carried out.
Section 39 – Determination of appeals
159.Subsection (1) provides that an application made under section 38 to vary or cancel a notice issued under section 35 is to be determined by a person appointed by the Welsh Ministers (an “appointed person”). Section 74(4)(a) requires the Welsh Ministers to give guidance to persons appointed to determine applications under section 38. Section 74(5) requires that those persons must have regard to that guidance when exercising their functions.
160.In practice, it is intended that most applications under section 38 and 43 will be determined by Planning and Environment Decisions Wales (PEDW). PEDW carry out casework relating to the development and use of land in the public interest. They deal with, amongst other things, planning and enforcement appeals, Strategic and Local Development Plans and environment appeals. They currently have a team of 20 inspectors who make appeal decisions, supported by 25 support staff.
161.Subsection (2) allows the appointed person to vary or cancel the notice if the appointed person is satisfied that any of the grounds on which the application was made have been proven. Where a notice is varied, subsection (3) provides that the notice, and any copy of it given under section 37, is to be treated as always having effect as varied.
162.Subsection (4) provides that where an application is made under section 38 and it is not withdrawn, the period specified in the notice as the period within which operations must be completed does not expire before the application is determined. This means that the person to whom the notice has been given cannot be guilty of an offence under section 41 for failing to comply with the notice whilst the determination of the application is pending.
163.Subsection (5) provides that the appointed person may extend the time specified in the section 35 notice for completing operations. This power can be exercised whether the grounds for an application are made out or not. It may, for example, be used if, by the time an appeal is determined, the deadline for completion of the operations specified in the notice is imminent.
164.Subsections (6) and (7) set out the steps that the Welsh Ministers must take once an application under this section has been determined.
Section 40 – Supplementary provision about appeals
165.Subsection (1) places a duty on the Welsh Ministers to make regulations about the procedure to be followed in determining appeals made under section 38. For example, this could include provision conferring a discretion on the person determining the appeal to decide which way the appeal proceedings should be determined ie by written representations or a hearing. It could also include provision conferring a discretion on that person to appoint another person to advise on any technical matters arising in connection with an appeal.
166.Subsection (2) gives the Welsh Ministers the power to make regulations about any other (non-procedural) matter that is connected to the determination of appeals under section 38. For example, this might include matters that are preliminary or subsequent to the determination of an appeal, or which, for other reasons, cannot reasonably be characterised as a matter of procedure. An example might be conferring a power to enter land if that is necessary to fairly determine an appeal.
167.Regulations made under this section may cover both procedural matters and other matters connected to determining an appeal. Further detail about the type of provision that may be made in these regulations is contained in the Statement of Policy Intent that accompanied the Bill’s introduction.
168.Subsection (3) sets out examples of the matters that may be included in regulations made under this section. Subsection (4) provides that regulations under this section may confer a discretion on a person. Subsection (5) provides that regulations under this section may create offences in connection with failures to comply with any requirements imposed by or under the regulations.
Section 41 – Penalty for failure to comply with notice
169.Subsection (1) provides that an owner who is given a notice under section 35 commits an offence if, without reasonable excuse, the owner fails to carry out the operations within the period specified in the notice, or, if the notice period is extended under section 39, within that extended period.
170.Subsection (2) provides that a person who is found guilty of the offence under subsection (1) is liable to a fine.
171.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.
Section 42 – Power to cancel notice
172.Section 42 provides the Authority with a power to cancel a section 35 notice. The Authority may give a notice of cancellation to an owner of land at any time before the operations required by the section 35 notice are completed, even if works have begun or an application to vary or cancel the notice has been made under section 38.
173.The situations in which the Authority may wish to cancel a notice may include, for example, situations where circumstances change after the date on which the notice was given, and the Authority is of the view that different operations should now be performed on the land. In accordance with subsection (6)(b), cancelling a notice does not affect the Authority’s power to give a further section 35 notice in relation to the land. A new notice could therefore be given requiring different operations to be carried out on the land.
Section 43 – Reimbursement of owner’s expenses on cancellation of notice
174.Section 43 applies where the Authority has cancelled a section 35 notice and the owner who was given the notice has incurred expenditure in complying with it.
175.Subsection (2) gives the owner a right to apply to the Welsh Ministers to be reimbursed by the Authority for (a) any expenditure incurred by the owner as a result of them having been given the notice, and (b) any expenditure incurred by the owner that is attributable to the cancellation of the notice. For example, expenditure that has already been paid out by the owner in furtherance of the required operations, such as costs that have been paid to contractors or to hire plant or machinery or expenses incurred by the owner as a result of cancelling a contract for works or costs of reinstating the land.
176.Subsections (3) to (6) set out how an application under this section is to be determined.
177.As set out in paragraph 160 above, the intention is for PEDW to determine applications under this section on behalf of the Welsh Ministers. The person determining the application may give a direction to the Authority to reimburse the owner and the Authority must comply with this direction. Section 74(4)(b) requires the Welsh Ministers to give guidance to persons appointed to determine applications under section 43. Section 74(5) requires that those persons must have regard to that guidance when exercising their functions.
178.Subsection (7) places a duty on Welsh Ministers to make regulations about the procedure to be followed in determining applications under this section. Subsection (8) gives Welsh Ministers the power to make regulations making other provision in connection with determination of applications under this section. This means that the Welsh Ministers have the power to make regulations about any other (non-procedural matter) that is connected to the determination of applications under this section. For example, this might include matters that are preliminary or subsequent to the determination of the application that cannot reasonably be characterised as a matter of procedure.
179.Subsection (9) applies the provisions of subsections (3) to (5) of section 40 to regulations made under this section.
Chapter 2 – Operations Carried Out by the Authority
Overview of Chapter
180.Chapter 2 gives the Authority a power to carry out operations on land to prevent or deal with threats to the stability of disused tips, or to stabilise disused tips or prevent them becoming more unstable, so as to avoid or reduce threats to human welfare (as defined in section 87). It gives the Authority related powers to remove and dispose of property from land. It also places a duty on the Authority to notify owners before carrying out works and requires the Authority to give interested parties a copy of the notice.
Section 44 – Authority's power to carry out operations
181.Section 44 gives the Authority the power to carry out operations on any land, if it considers it necessary to do so to achieve the objective in subparagraph (2). However, this power to carry out operations is subject to the requirement to give notice to owners set out in section 46.
182.The Authority has the power to intervene in the interests of the stability of disused tips at various stages, including by taking pre-emptive action.
183.“Operations” are defined in section 90 as including, but not limited to, building and engineering operations. Examples of such operations might include the clearing of drainage infrastructure, the removal of vegetation, the repair of retaining structures, the reinstatement of erosion features and the remediation of areas of landslip.
184.The Authority is given the power to carry out operations on any land. This includes land on which a disused tip is situated, but also includes other land. In practice this land is likely to be, land that is immediately adjacent to a disused tip where the conditions on that land are having, or have the potential to have, an impact on the stability of the disused tip.
Section 45 – Authority's right to remove and dispose of property
185.Subsection (1) provides the Authority may, for the purpose of carrying out operations or consequential works of reinstatement on land, remove and dispose of any property situated on the land that belongs to another person. Such property might include machinery that needs to be moved before the operations can commence or could, for example, comprise materials from the disused tip.
186.Subsection (2) provides that if the Authority disposes of such property by selling it, the Authority must account to the owner of the property for the proceeds of sale. However, subsection (3) enables the Authority to deduct any expenses that are reasonably incurred in selling the property and to offset the proceeds of sale against any sum the Authority is entitled to recover from the owner of the property under Chapter 3.
Section 46 – Duty to give notice to owners
187.Section 46 provides that, in most circumstances, the Authority may not carry out operations on land under section 44 unless it has given the owner of the land at least 21 clear days’ notice of its intention to do so. The content of the notice is specified in subsection (2).
188.However, subsection (3) provides that if the Authority believes operations need to be carried out immediately, it may carry out those operations without giving notice or, where it has given notice, before the end of the 21-day period outlined in subsection (1). For example, the Authority may form the view that operations need to be carried out immediately following an inspection of a disused tip following a period of heavy rain which reveals the tip, or a portion of it, is at risk of imminent failure without works to stabilise it. In practice, such scenarios are likely to be relatively rare.
189.Subsection (4) provides that where the Authority starts operations on land without having given notice, it must, as soon as practicable, give the owner of the land notice that the operations have started. The content of this notice is specified in subsection (5).
Section 47 – Duty to give interested parties copies of notice
190.Section 47 provides that where the Authority gives notice to an owner of land under section 46 that it intends, or has started, to carry out operations, it must also give a copy of the notice to any other person with an interest in the notice. These persons are listed in subsection (2). This is to ensure that anyone who might be affected by the carrying out of operations on the land, or who might be required to contribute towards the cost of carrying out the operations, is informed about them. Subsection (4) requires the Authority to give copies of the notice on the day the notice is given to the owner, or as soon as practicable after that day.
Chapter 3 – Payments in Connection With Operations
Overview of Chapter
191.Chapter 3 makes provision about contribution orders, compensation and demands for the recovery of expenses by both owners of land and the Authority. Chapter 3 also sets out the rights of owners and contributories to appeal against such demands. Under section 74(1)(e), the Welsh Ministers must give guidance to the Authority in relation to the exercise of its functions under Chapter 3.
Section 48 – Contribution orders
192.Section 48 provides that where an owner of land has to bear expenses as a result of the carrying out of operations specified in a notice issued under section 35 or 46, the owner or the Authority can apply to the court for an order requiring one or more other persons to contribute towards those expenses. “Court” is defined in section 90 as the High Court or the county court.
193.An order can only be made in relation to a person listed in subsection (2).
194.Subsections (5) and (6) set out the procedural requirements that the owner or the Authority must comply with when applying for an order under this section.
195.The court must take account of all the circumstances, including all the matters listed in subsection (7), in deciding whether to make an order, and in determining the amount of any contribution. If the court decides to make an order, the order must specify the percentage of the total amount in respect of which a contribution can be claimed under Chapter 3.
Section 49 – Meaning of “contribution order”, “contributory” and “the specified percentage”
196.This section contains definitions of terms used in the Act in relation to contribution orders.
Section 50 – Compensation for damage, loss or disturbance etc
197.Section 50 gives the persons listed in subsection (3) an entitlement to compensation from either the owner of the land or the Authority in certain circumstances.
198.Subsections (1) and (2) set out the circumstances in which a person is entitled to compensation. Compensation may only be claimed where operations or consequential works of reinstatement have been carried out in accordance with Part 3 or where the Authority has carried out investigations to determine whether operations are needed. If, as a result of operations under section 35 or 44 or reinstatement works carried out in consequence of such operations, land is damaged, other property is damaged, removed or disposed of or any person's enjoyment of any land is disturbed, the persons listed in subsection (3) are entitled to compensation. If as a result of investigations under section 55, land or other property is damaged or any person’s enjoyment of land is disturbed, the persons listed in subsection (3) are entitled to compensation.
199.An owner of land is not entitled to compensation under this section for damage, removal, loss or disturbance resulting from operations carried out by them or by a previous owner of the land.
200.Disputes about claims for compensation under this section are to be determined by the court (defined in section 90 as the High Court or the county court).
201.Schedule 2 has effect in relation to certain claims for compensation under this section. See the notes at paragraphs 127 to 134 above in relation to Schedule 2.
Section 51 – Owner's right to receive expenses from contributory
202.Where a contribution order has been made under section 48 in relation to operations an owner carried out on their land in compliance with a notice issued under section 35, the owner is entitled to recover from the contributory the contribution specified in the order in accordance with section 51.
203.As explained in the notes for section 48, the contribution order will specify the percentage of the total amount of expenses incurred by an owner which the owner may seek as a contribution. Subsection (3) of section 51 sets out how the total amount is calculated. It is the sum of:
the expenses the owner reasonably incurred in carrying out the operations required by the notice issued under section 35 and any consequential works of reinstatement that were reasonably necessary,
the amount of compensation that the owner has been, or may be, required to pay under section 50, and
the amount of compensation that the owner could have claimed under section 50 if the operations and works of reinstatement had been carried out by the Authority rather than by the owner.
204.Subsections (4) and (5) set out the procedural requirements an owner must follow to recover expenses from a contributory.
205.Subsection (7) provides that this section and section 52 have effect with the modifications set out in Schedule 3 in circumstances where an owner of land has carried out operations specified in a notice under section 35 and the Authority has cancelled that notice under section 42.
Schedule 3 – Modifications of sections 51 and 52 where a notice under section 35 is cancelled
206.Schedule 3 sets out the following modifications that will apply to sections 51 and 52 where the Authority cancels a notice it has given to an owner under section 35.
207.Where section 51 or 52 refers to operations carried out in compliance with a notice given under section 35, this is to be read as a reference only to operations carried out before the notice was cancelled.
208.The amount of expenses reasonably incurred by the owner in carrying out operations must be calculated for the purposes of determining the total amount in relation to which an owner is entitled to a contribution under section 51 or whether the grounds of an application to vary or cancel a demand for a contribution under section 52 are made out. Paragraph 3(1) of Schedule 3 provides that when calculating the amount of expenses reasonably incurred in carrying out operations in circumstances where the notice is cancelled, any sum that falls within paragraph 3(1)(a) and (b) must be deducted. A sum falls within paragraph 3(1)(a) and (b) if it is recoverable or has been recovered by the owner from the Authority under section 43 (see paragraphs 174 to 179 above) and relates to expenses the owner incurred in consequence of the notice given to them under section 35.
209.Under paragraph 3(2), where a notice is cancelled an owner of land is not entitled to a contribution under section 51 in respect of expenses they incur in carrying out works of reinstatement.
210.Paragraph 4 sets out modifications that apply if a direction is made under section 43 allowing the owner to recover sums from the Authority in respect of the expenditure the owner incurred in consequence of being given a notice under section 35. These include a requirement that any sums recoverable from the Authority as a result of the direction must be specified in any demand given under section 51 for a contribution towards the owner’s expenses. A person who is given such a demand may apply under section 52 to vary or cancel the demand on the ground that the amount claimed in the demand does not make proper allowance for a sum that must be deducted by virtue of paragraph 3.
Section 52 – Right of contributory to appeal against owner’s demand
211.Where a person is given a demand for a contribution under section 51, they can (within 6 weeks of the demand being given) apply to the court for an order varying the demand.
212.Subsection (3) sets out the grounds on which an application to vary a demand may be made. Where the court is satisfied that one or more grounds are made out the court may make an order reducing the amount recoverable from the contributory (subsection (4)).
Section 53 – Authority's right to recover certain expenses
213.Section 53 applies where the Authority has carried out operations on land under section 44. In this case, the Authority may recover from the owner of that land the expenses set out in subsection (1). The “owner” is the person who was the owner when the Authority started to carry out the operations (see subsection (9)).
214.Under subsection (2), the Authority may recover from the owner of land any expenses reasonably incurred by the Authority in carrying out investigations under section 55 that resulted in them giving the owner a notice under section 35 (see subsection (9) for an explanation of when investigations are to be treated as having resulted in the giving of a notice under section 35). The Authority may also recover the amount of any compensation recovered or recoverable under section 50 from the Authority in relation to such investigations. The “owner” is the person given the notice under section 35 (see subsection (9)).
215.Subsection (3) provides that the Authority may recover expenses from a contributory where an order has been made under section 48 in relation to expenses the owner may otherwise have to bear under subsection (1) or (2).
216.Subsections (4) and (5) set out the procedural requirements the Authority must follow in order to recover sums under this section.
217.Subsection (6) provides that a demand given by the Authority under subsection (4) is final and conclusive unless an application to vary or cancel the demand is made under section 54.
218.Interest is payable in relation to any sum recoverable under this section in accordance with subsection (7) and subsection (8) provides that any sum recoverable may be paid in instalments if agreed by the Authority.
Section 54 - Right to appeal against Authority’s demand
219.Section 54 provides a person given a demand under section 53 with a right to apply to the court (as defined in section 90) for an order varying or cancelling the demand.
220.Subsections (3) and (4) of section 54 set out the grounds on which such an application may be made, and subsection (5) provides that where the court is satisfied that any of the grounds of the application are made out, the court may make an order cancelling the demand or reducing the amount that is recoverable from the person to whom the demand was given.
Chapter 4 – Supplementary Provision
Overview of Chapter 4
221.Chapter 4 is a short Chapter that gives the Authority the power to carry out investigations on land to determine whether specified operations on land need to be required or carried out. The Chapter also creates related offences.
Section 55 – Power to carry out investigations
222.Section 55 gives the Authority power to carry out investigations on land to determine whether operations need to be required or carried out by the Authority, or whether operations are being carried out in compliance with a notice given under section 35.
Section 56 – Penalty for obstructing operations etc
223.Subsection (1) provides that a person commits an offence if they intentionally obstruct or interfere with - (a) an investigation under section 55, (b) the carrying out of operations required by a notice under section 35, or (c) the carrying out of operations under section 44. In accordance with subsection (3), a person guilty of an offence under subsection (1) is liable on summary conviction to a fine.
224.Subsection (2) provides that a person who intentionally damages or otherwise interferes with any works completed in the course of operations required by a notice under section 35 notice or carried out by the Authority under section 44 commits an offence. In accordance with subsection (3) a person guilty of an offence under subsection (1) is liable on summary conviction to a fine.
225.Subsection (4) provides that a contravention of subsection (1) or (2) 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.
