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.
Commentary on Sections Part 3 – Dealing With Tip Instability and Threats to Tip Stability Overview of Chapter Section 38 – Right of owner and interested parties to appeal against notice