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.
