Part 4 – Supplementary
Overview of Part 4
226.Part 4 contains provisions about management plans, information sharing, powers to require information and penalties in connection with notices requiring information. These are contained at sections 57 to 64.
227.It also makes provision about powers of entry. These include provisions in relation to the giving of notice prior to entry, the issuing of warrants conferring powers of entry, entry to land both with, and without, a warrant, penalties for obstructing entry to land and entry to Crown land. These are contained at sections 65 to 70.
228.There are also a number of miscellaneous provisions. These are a duty on the Authority to establish and maintain a website (or other electronic facility), publication requirements, provision giving the Authority the power to provide administrative, technical or professional services and provision in respect of guidance. They also include provision that makes amendments to the Mines and Quarries (Tips) Act 1969. These are contained at sections 71 to 75.
Section 57 – Management plans
229.Subsection (1) requires the Authority to prepare and maintain a management plan for every disused tip in the register which is a category 1 or category 2 tip.
230.Subsection (2) requires the Authority to prepare the management plan as soon as practicable after the tip is first recorded in the register as a category 1 tip or category 2 tip.
231.Subsection (3) provides the Authority with a power to prepare and maintain a management plan for a category 3 tip or category 4 tip.
232.Subsection (4) prescribes that a management plan must set out how the Authority intends to exercise its functions under the Act in relation to the tip (including details of any information or advice that it intends to give to owners or occupiers of land under section 3); information the Authority considers may be relevant in an emergency involving the tip; information about the roles and responsibilities of the Authority and other public authorities in such an emergency; and how the Authority intends to co-operate with those public authorities in such an emergency.
233.Subsection (5) provides that a management plan may include any other information that the Authority considers appropriate.
234.The intention is for the Authority to co-operate with other relevant public authorities in the preparation of management plans, for example, with the local authority for the area where the disused tip is situated, Natural Resources Wales, the Coal Authority and the Fire and Rescue Authority for the area. In accordance with section 74(1)(f), the Welsh Ministers must give the Authority guidance in relation to the exercise of its functions under section 57 (management plans). The Authority must have regard to that guidance in exercising its functions.
Section 58 – Meaning of “relevant public authority”
235.Section 58 defines “
236.Subsection (1) provides that the Welsh Ministers and a number of other public authorities are “
237.Subsection (3) provides that the Welsh Ministers may make regulations to amend the meaning of “relevant public authority” in subsection (1). In accordance with subsection (4), such regulations may not include a public authority within the definition of “relevant public authority” unless that authority is a “devolved Welsh authority” within the meaning of section 157A(1)(a) of the Government of Wales Act 2006. This means that a public authority can only be included within the definition of “relevant public authority” if its functions are exercisable only in relation to Wales and are wholly or mainly functions that do not relate to reserved matters.
Section 59 – Authority's power to require relevant public authorities to give information
238.Subsection (1) places a duty on each relevant public authority to provide the Authority with information requested by the Authority for the purpose of exercising functions conferred by or under the Act.
239.Subsection (2) provides that a relevant public authority is neither required nor permitted to give information to the Authority if that would be contrary to any prohibition contained in other legislation or imposed by another rule of law. For example, a relevant public authority would not be required to provide information if in doing so it would breach data protection legislation or breach a duty of confidence owed to a third party.
240.Subsection (3) requires a relevant public authority to give the Authority its reasons in writing where it refuses to disclose information to the Authority following a request under this section.
Section 60 – Duties of Authority and relevant public authorities to share information
241.Section 60 places a duty on a relevant public authority and the Authority, when certain circumstances are satisfied, to give information to the other party as soon as practicable.
242.Subsection (1) requires a relevant public authority, if it becomes aware of a threat to the stability of a disused tip or of evidence of a disused tip’s instability, and it considers that information should be shared with the Authority in the interests of avoiding or reducing a threat to human welfare, to provide the Authority with that information as soon as practicable. For example, a local authority may become aware, as part of a planning application, of activity on or near a disused tip that it considers should be passed to the Authority in the interests of avoiding or reducing a threat to human welfare.
243.Similarly, subsection (2) requires the Authority, if it becomes aware of something that should be brought to the attention of a relevant public authority for the purpose of the public authority’s exercise of its functions, to provide that information to the public authority as soon as practicable. For example, if when assessing a disused tip, the Authority becomes aware of a fire hazard on the tip or on neighbouring land, the Authority must provide that information to the Fire and Rescue Authority for that area.
244.Subsection (3) provides that the section can neither require nor permit a relevant public authority or the Authority to give information contrary to any prohibitions contained in legislation or imposed by another rule of law.
Section 61 – Information about estates or interests in land
245.Section 61 contains provisions that aim to help the Authority to obtain certain information.
246.Subsection (1) provides that the Authority may require an occupier of land, or a person who receives rent in respect of the land, to provide certain written information to the Authority: namely, the nature of their estate or interest in the land and whether they know of anyone else with an estate or interest in the land. If they are aware of any such person they must, if such information is known, provide the Authority with that person’s name and contact details. Not giving such information, without reasonable excuse, or giving information which is false and misleading in a material respect, either knowing it to be false or misleading or being reckless as to whether it is so, is an offence under section 64.
247.The meaning of “contact details” is set out in subsection (2).
248.Subsection (3) provides that the Authority may not give a notice under section 60 requiring a person to provide information unless the Authority needs such information to enable it or assist it in exercising a function conferred by or under the Act. The Authority might, for example, require information in order to establish who has an estate or an interest in certain land, so that the Authority is able to comply with its duty under section 37 of the Act to give certain persons a copy of a section 35 notice.
249.Subsection (4) sets out the period within which a notice under this section may require information to be given.
250.Subsection (5) clarifies that section 61 does not require or permit information to be given contrary to any prohibitions contained in legislation or imposed by another rule of law. Subsections (6) and (7) provide, respectively, that the Authority may not give a notice under section 61 to a relevant public authority or to an appropriate Crown authority in respect of an estate or interest in Crown land which is not a private interest. “Appropriate Crown authority”, “
Section 62 – Information about estates or interests in Crown land
251.This section makes provision in relation to obtaining information about estates or interests in Crown land.
252.Subsection (1) provides that section 62 applies to an estate or interest in Crown land that is not a private interest. “Crown land” is defined in section 89(2) and “
253.Subsection (4) requires the appropriate Crown authority to provide information requested by the Authority under subsection (2), other than in the circumstances set out in subsection (4)(a) or (b).
Section 63 – Information to identify or assess threats to stability of a disused tip etc
254.Subsection (1) provides that the Authority may give an “information notice” to a person. An information notice may not be given to a relevant public authority (subsection (5)). An information notice must specify the type of information sought by the Authority, which must be information that the Authority believes will allow or help it to assess a threat to the stability of a disused tip, or to assess the stability of a disused tip. The Authority must have a reason to believe that the person to whom the information notice is given either possesses the information or has the information under their control. It is an offence, under section 64, not to give the information without reasonable excuse, or to give information in response to the information notice that is false or misleading in a material respect, either knowing that the information is false or misleading or being reckless as to whether it is so. Information that might be requested under this section could include, for example, information about historical works carried out on a disused tip.
255.Subsection (2) provides that the Authority may, in the information notice, require a person to give information in a certain way and in a particular form. For example, the information notice could specify that a person must fill out a particular form.
256.Subsection (3) sets out the period within which a notice under this section may require information to be given. Subsection (4) provides that information cannot be required or permitted contrary to any prohibitions contained in legislation or imposed by another rule of law.
257.An information notice may not be given to a relevant public authority (subsection (5)). Sections 59 and 60 deal specifically with the sharing of information between the Authority and relevant public authorities.
Section 64 - Penalties in connection with notices requiring information
258.Subsection (1) provides that a person who is required to give information in accordance with a notice under section 61 or an information notice under section 63 commits an offence if the person fails, without reasonable excuse, to provide the required information. A person might have a reasonable excuse for the failure if, for example, the person was out of the country or hospitalised during the period within which the notice required the information to be given. However, this will be a matter for the court to determine.
259.In accordance with subsection (2), this offence is punishable, following summary conviction, by a fine not exceeding level 3 on the standard scale, which is currently £1,000.
260.Subsection (3) provides that a person who is required to give information under section 61 or 63 commits an offence if they knowingly or recklessly give information which is false or misleading in a material respect, either knowing that it is false or misleading or being reckless as to whether it is so. A person who is found guilty of this offence, in either the Magistrates’ Court or the Crown Court, is subject to a fine.
Section 65 – Power to enter land
261.Subsection (1) gives an authorised person the power to enter any land (not just land on which there is a disused tip) to do any of the things listed in paragraphs (a) to (f) on behalf of the Authority. Subsection (4) defines an “authorised person” to mean a person authorised in writing by the Authority to act on its behalf. This could, for example, be a member of the Authority’s staff or it could be a third party. The Authority will not always be able to do the things listed in subsection (1) itself. This power could be used, for example, to allow the Authority to authorise contractors with specialist knowledge or equipment to enter land and carry out investigatory or monitoring work on behalf of the Authority.
262.Subsection (2) allows an authorised person to take other people, equipment and material onto the land that may be necessary for the purposes mentioned in subsection (1). It also gives the authorised person the ability to leave equipment and material on the land. This means, for example, that whilst operations are being carried out, tools and machinery won’t need to be removed from the land at the end of each day.
263.Subsection (3) provides that an authorised person may, for the purposes set out in subsection (1), carry out inspections and examinations on the land (this includes tests and surveys); take measurements and photographs and make recordings; take and remove samples from the land. These are actions an authorised person may need to undertake when doing the things mentioned in subsection (1) on behalf of the Authority.
Section 66 – Entry to land without a warrant
264.Subsection (1) provides that an authorised person cannot demand entry to land that is occupied unless at least 48 hours’ notice of the intended entry has been given to every occupier of the land. Similarly, subsection (2) provides that an authorised person may not demand to take other people, equipment or material onto land that is occupied, nor can an authorised person demand to leave material on such land, unless at least 48 hours’ notice of the intention to do so has been given to every occupier of the land. A notice must include, where relevant, details of the persons, equipment and material to be taken onto, or left on, the land.
265.If the authorised person seeks entry 48 hours after giving the notice, but an occupier or owner denies the authorised person entry, the authorised person will need to apply for a warrant to enter the land under section 67.
266.An authorised person can, with agreement, enter land without giving prior notice.
267.Subsection (3) disapplies the requirement, in subsections (1) and (2), for the Authority to give at least 48 hours’ notice where the Authority believes that a disused tip is unstable, and the instability poses a threat to human welfare that requires the Authority to enter the land immediately to:
investigate whether operations need to be carried out under Part 3, namely investigations to determine whether the Authority needs to require an owner of land to carry out operations under section 35, or to determine whether the Authority needs to undertake the works itself under section 44, or
to carry out operations on land and consequential works of reinstatement itself under section 44.
268.Where the conditions in subsection (3) are satisfied, an authorised person may demand entry as of right to land which is occupied, without giving notice, and may demand that other persons be permitted to enter the land, and that equipment or material are taken onto, and left on, the land.
269.Subsection (4) provides that an authorised person cannot demand admission as of right to residential land, although an authorised person could enter residential land with the consent of the occupier. If the occupier does not consent, the authorised person may apply for a warrant to enter. The conditions that must be satisfied to obtain a warrant are contained in section 67(3).
270.“Residential land” is defined in subsection (7). Sub-paragraph (a) of the definition captures all dwellings and parts of dwellings, including for example, a flat in a building used for other purposes, such as a caretaker’s flat in a school. Sub-paragraph (c) of the definition captures, for example, communal areas in a block of flats. The Act requires a warrant to enter residential land if the occupier does not consent to entry.
271.Subsection (5) provides that an authorised person can only demand entry to land under section 65 at a reasonable time. The exception to this is where the condition in subsection (3) is met. In such an instance, the Authority may demand entry to land at any time. This recognises that where a disused tip is unstable and immediate entry is required under subsection (3), an authorised person must be able to demand entry.
272.Subsection (6) provides that before entering land, if requested by an owner or occupier, an authorised person must provide evidence of their authorisation and state the purpose of entry. They must leave the land as effectively secured against trespassers as they found it, if they leave the land at a time when no owner or occupier is present.
273.Subsection (7) provides that references to “land” in this section do not include Crown land. “Crown Land” is defined in section 89(2). There are specific provisions governing entry to Crown land at section 70.
Section 67 – Warrant to enter land
274.Subsection (1) provides that a justice of the peace may issue a warrant conferring a power to enter land, if necessary, by force. For example, the Authority may apply for a warrant where, after the expiry of the 48-hour notice period under section 66(1), an occupier refuses to allow an authorised person access to land. Similarly, the Authority will need to apply for a warrant if an occupier refuses entry to land where the conditions for immediate entry without notice (as set out in section 66(3)) are met.
275.Subsection (2) provides a justice of the peace must be satisfied that there are reasonable grounds for entering land for a purpose mentioned in section 65(1) and that one or more of the conditions in subsection (3) are met.
276.Subsection (5) provides that a justice of the peace may also allow, where it is considered necessary, an authorised person to take other persons, equipment or material onto land or to leave equipment or material on the land. The warrant will include the power for the authorised person to do this, and where this is the case, must include details of the persons, equipment or material.
277.Subsection (7) provides that a warrant remains in force until the purpose for which it was granted has been fulfilled. If, for example, the warrant was issued to allow an authorised person to enter land to carry out specified operations on a disused tip, the warrant remains in force until those operations have been completed.
278.Subsection (8) clarifies that references to “land” in this section do not include Crown land. “Crown Land” is defined in section 89(2). There are specific provisions governing entry to Crown land at section 70. “
Section 68 - Entry to land with a warrant
279.Subsection (1) provides that a warrant issued under section 67 can only confer a power to enter land at a reasonable time, other than where the circumstances in subsection (2) are satisfied. What is a reasonable time will depend on the circumstances. What is considered to be a reasonable time for the purposes of entering a dwelling is likely to be different to, for example, what is reasonable when entering land that is not residential land.
280.The restriction that a warrant conferring a power to enter land must be at a reasonable time does not apply if the justice of the peace is satisfied that the conditions in subsection (2) are met. Where this is the case, the warrant may confer a power to enter land at any time.
281.The conditions are that (a) a disused tip is unstable, and (b) the tip’s instability poses a threat to human welfare that requires immediate entry to the land (by force if necessary) for a purpose mentioned in section 65(1)(c) or (e).
282.Where a person is authorised to enter land, subsection (3) provides that before entering land they must produce the warrant and state the purpose of entry, if asked to do so by an owner or occupier of the land. They must leave the land as effectively secured against trespassers as they found it, if they leave the land at a time when no owner or occupier is present.
Section 69 – Penalty for obstructing entry to land
283.Section 69 creates an offence where a person intentionally obstructs a person exercising a power to enter land under section 65 or under a warrant issued under section 67. Subsection (3) provides that a person found guilty of an offence under subsection (2) is liable on summary conviction to a fine not exceeding level 3 on the standard scale, which is currently £1,000.
Section 70 – Entry to Crown land
284.This section governs the authorised person’s power to enter Crown land. “Crown land” is defined at section 89(2).
285.In accordance with subsection (1), an authorised person cannot enter Crown land (a) unless they have permission from the appropriate Crown authority or (b) the Authority believes a disused tip is unstable and the tip’s instability poses a threat to human welfare that requires immediate entry to the land, either to investigate whether operations need to be required or carried out under Part 3 or to carry out operations under section 44. Therefore, in practical terms, entry to Crown land without consent will only be possible in circumstances where the Authority believes there is an immediate need to gain entry. This should be a rare occurrence. For example, an authorised person may need to enter Crown land without permission for the purpose of carrying out works to stabilise a disused tip if the Authority believes a tip is unstable and there is an immediate risk of a landslide that would pose a threat to human welfare. The disused tip need not be on Crown land: the authorised person might simply need to cross Crown land to gain access to the disused tip.
286.Where the Authority is of the belief, in accordance with the circumstances set out in subsection (1)(b), that immediate entry to the land is required, the authorised person may demand entry to the land and demand to take other persons, equipment or material onto the land and to leave equipment or material on the land.
287.Subsection (3) provides that the authorised person may not demand entry to any part of the Crown land that is residential land. Residential land is defined in section 66(7). Therefore, an authorised person may only enter Crown land that meets the definition of residential land with the appropriate consent.
288.Subsection (4) provides that if an authorised person enters Crown land without consent from the appropriate Crown authority because the circumstances in subsection (1)(b) apply, the Authority must inform the appropriate Crown authority as soon as reasonably practicable.
289.Subsection (5)(a) provides that if requested to do so by or on behalf of an owner or occupier of Crown land, an authorised person must provide evidence of their authorisation and state the purpose of entry before entering the land under section 64. If an authorised person leaves the land at a time when no owner or occupier is present, subsection (5)(b) places a duty on them to leave the land as effectively secured against trespassers as they found it.
Miscellaneous
Section 71 – Duty to establish and maintain a website or other electronic facility
290.Section 71 places a duty on the Authority to establish and maintain a website or other electronic facility that is free for the public to access. The reference to “other electronic facility” is intended to future proof the requirement.
Section 72 - Publication
291.Section 72 provides that where the Act requires the Authority to publish anything (for example a notice or report) it must be published on the Authority’s website (or other electronic facility) established and maintained under section 71. The publication requirement applies to, for example, the Authority’s annual report, corporate plan, reports of preliminary and full assessments and notices given under sections 20, 21, 22, 23, 29 and 30.
292.Section 72 also gives the Authority the power to publish documents and information subject to a publication requirement in any other way the Authority sees fit.
Section 73 – Provision of administrative, technical or professional services
293.This section gives the Authority the power to provide administrative, technical or professional services to any devolved Welsh authority within the meaning of section 157A of the Government of Wales Act 2006.
294.Administrative, technical and professional services include “back room” services such as finance, payroll, human resources and information technology. The Authority may choose to charge a fee for the provision of a service under this section.
Section 74 - Guidance
295.Subsection (1) places a duty on the Welsh Ministers to give guidance to the Authority in relation to the exercise of its functions in relation to –
section 3(4) (Authority’s power to charge fees);
section 10 (Authority’s duty to monitor registered tips);
Chapter 2 of Part 2 (preliminary and full assessment of tips by the Authority);
section 33 (compensation for damage or disturbance caused by monitoring or assessment activity);
Chapter 3 of Part 3 (payments in connection with operations);
section 57 (management plans).
296.Subsection (2) gives Welsh Ministers the power to give guidance to the Authority in relation to the exercise of any of its other functions under the Act. Subsection (3) requires the Authority to have regard to guidance given under subsection (1) or (2) in exercising its functions.
297.Subsection (4) places a duty on the Welsh Ministers to give guidance to a person appointed to determine an appeal under section 38 or section 43. In accordance with subsection (5), a person appointed to determine such an appeal must have regard to guidance issued by the Welsh Ministers under subsection (4).
298.Subsection (6) places a duty on the Welsh Ministers to consult with such persons as they consider appropriate prior to giving guidance under this section.
Section 75 – Amendments to the Mines and Quarries (Tips) Act 1969
299.Section 75 makes amendments to the Mines and Quarries (Tips) Act 1969 (“
300.The main effect of the amendments is to remove the functions that Part 2 of the 1969 Act placed on local authorities in Wales for the purpose of ensuring that disused tips do not constitute a danger to members of the public. Functions relating to the oversight of disused tips in Wales will now fall, instead, to the Authority. The amendments to the 1969 Act do not impact the application of the 1969 Act to local authorities in England or Scotland, in relation to whom the current position is preserved.
301.There are a small number of disused tips that straddle the border between England and Wales. The Authority will have functions in relation to those tips under this Act, and the relevant local authorities in England will have functions in relation to those tips under the 1969 Act. The functions of the Authority, and of the English local authorities, will be exercisable in relation to those cross-border tips in their entirety (not just the parts of those tips that fall within the respective geographical areas). The powers of the Authority in the Act could also be exercised in relation to land in England for the purpose of dealing with threats to the stability of a tip situated wholly in Wales, for example, where the only threat to a tip’s stability exists on the English side of the border.
302.Section 5 confers power on the Authority to do anything which is calculated to facilitate, or which is conducive or incidental to, to the exercise of its functions. In respect of a cross-border tip, the Authority could potentially rely on this power to co-operate with English local authorities where such co-operation is conducive to the exercise of the Authority’s functions.
