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.
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.
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.
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.
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.
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.
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.
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.
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.
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.