Commentary on Sections Part 2 Assessment, Registrati on and Monitoring of Disused Tips Chapter 2 – Assessment of Disused Tips Section 18 – Notice of intention to carry out full assessment
68.Before carrying out a full assessment in relation to a disused tip, subsection (1) places a duty on the Authority to give notice to every owner and every occupier of land to which access is required for the purposes of the assessment.
69.In practice, this means every owner and every occupier of the disused tip will need to be given notice. In addition, where the disused tip cannot be accessed directly from a public highway, the owners and the occupiers of any land the Authority will be required to cross to gain access to the disused tip will also need to be notified. Notice will also be given to owners and occupiers of land near to the disused tip, if access to that land is needed as part of the full assessment: for example, to assess whether there are any interdependencies between tips or to consider whether the criteria for registration (under section 7) are met.
70.An “owner” of land is defined for the purposes of the Act in section 88 to mean the person who owns the freehold title to the land or holds a fixed term tenancy that has at least a year left to run and is not a mortgage term. This means banks and building societies that hold a mortgage on a piece of land are not considered to be owners for the purposes of the Act. Section 88(b) provides that a person who has a reversionary interest in land that will only be realised when such a tenancy comes to an end is not to be considered an owner for the purposes of the Act.
71.The “owner” of the land will, in many cases, be the occupier of the land too. However, there will be cases in which persons other than the “owner” are occupying the land: for example, persons who have a licence to occupy the land, or persons who hold periodic tenancies or tenancies which have less than a year to run. Where this is the case, notice will have to be given to those persons too.
72.Subsection (2) describes what must be included in a notice given under section 18(1). Amongst other things, the notice must specify the date on which access to the land may be needed. This must not be less than 14 days after the date on which the notice is given. So, if a notice is given on 1 November, access cannot be sought until 15 November.
73.The notice must also state that the Authority can apply for a warrant to enter land (in accordance with section 67) if access is refused. This requirement does not apply if the land in question is Crown land, as a warrant cannot be applied for to enter Crown land. Crown land is defined in section 89(2).