Local Government (Miscellaneous Provisions) Act 1976

25 Power of certain councils with respect to dangerous excavations

(1) Where a district council, a London borough council or the Common Council—

(a) considers that an excavation made at any time by some person on land in the area of the council is accessible to the public from a highway or a place of public resort and, by reason of its being unenclosed or inadequately enclosed, is a danger to the public; and

(b) knows the name and address of no person appearing to the council to be an owner or occupier of the land on which it appears to the council that works to remove the danger should be carried out and either—

(i) has made reasonable but unsuccessful enquiries for the purpose of ascertaining the name and address of such a person, or

(ii) considers that in view of the imminence of the danger the delay involved in making enquiries or further enquiries about the name and address of such a person is unwarranted,

the council may carry out on the land mentioned in paragraph (b) of this subsection such works as appear to the council to be necessary for the purpose of removing the danger.

(2) Where such a council—

(a) considers that an excavation made at any time by some person on land in the area of the council is as mentioned in paragraph (a) of the preceding subsection; and

(b) knows the name and address of a person appearing to the council to be an owner or occupier of the land on which it appears to the council that works to remove the danger in question should be carried out,

the council may serve on an owner or occupier of the land a notice specifying the excavation and stating that the council proposes to carry out, for the purpose of removing the danger in question, such works as are specified in the notice at such places on the land as are so specified.

(3) If any person having an interest in or a right over land in respect of which a notice is served in pursuance of the preceding subsection objects to the notice on one or more of the following grounds, namely—

(a) that the excavation is not a danger to the public ; or

(b) that works other than some or all of those specified in the notice are appropriate for the purpose of removing the danger; or

(c) that places other than some or all of those so specified are appropriate as the site of works for removing the danger,

he may, during the period of 21 days beginning with the date on which the notice was served, appeal to the county court against the notice.

(4) On such an appeal the court shall either quash the notice or dismiss the appeal or, where a ground of the appeal is the ground specified in paragraph (b) or (c) of the preceding subsection, modify the notice so that it refers only to works or, as the case may be, places which the appellant agrees or the appellants agree are appropriate for the purpose of removing the danger ; but the notice shall not be modified by the court so as to refer to a place on land of which no appellant is an owner or occupier.

(5) If no appeal in pursuance of subsection (3) of this section is made against a notice within the period mentioned in that subsection or if on such an appeal the appeal is dismissed or the notice is modified as mentioned in the preceding subsection, the council which served the notice may, at any time after the expiration of that period or, as the case may be, after the appeal is dismissed or the notice is modified, carry out the works specified in the notice at the places so specified.

(6) It shall be the duty of a council by which works have been carried out in pursuance of this section to maintain and repair the works except—

(a) so far as they consist of the filling in of the excavation in question;

(b) after the works have been removed in pursuance of the following subsection;

(c) in a case where the council has agreed with a person who is for the time being an owner or occupier of the land on which the works are situated that he shall maintain and repair the works and he has performed his obligations under the agreement.

(7) Where it appears to a council by which works have been carried out in pursuance of this section that if the works were removed the excavation in question would not be a danger to the public, then—

(a) the council may remove the works ; and

(b) it shall be the duty of the council to remove the works, except so far as they consist of the filling in of the excavation in question, if it is requested to do so by a person having an interest in or a right over the land on which the works are situated.

(8) Without prejudice to the powers conferred by section 137 of the [1972 c. 70.] Local Government Act 1972 (which authorises a local authority to incur expenditure which it considers is in the interests of its area or inhabitants of its area), a district council, a London borough council or the Common Council may pay to any person the whole or part of the expenses incurred by him in carrying out works for preventing or removing danger to the public from an excavation made at any time by some person on land in the area of the authority, whether or not the person who incurred the expenses had a duty to carry out any such works.