Commentary on Sections Part 3 – Dealing With Tip Instability and Threats to Tip Stability Overview of Chapter Section 36 – Owner's right of entry onto land etc
147.Section 36 recognises that owners who are not in occupation of their land, or any part of it, need to be able to enter their land if they receive a notice under section 35 that requires them to carry out operations on the land.
148.Subsection (1) provides that if an owner of land who is given a notice under section 35 is not in occupation of the land on which the operations specified in the notice must be carried out, and the owner’s estate in the land is superior to the estate or interest of the occupier, the owner has the right to enter the land (or part of the land) to carry out the operations and any consequential works of reinstatement. Such reinstatement works might include works to reinstate agricultural land. An example where the owner’s estate is superior is where the owner holds the freehold estate in the land and the occupier merely has a licence to occupy the land.
149.Subsection (2) provides that an owner exercising a right of entry under subsection (1) may take other persons, equipment or materials onto the land. This is to facilitate the carrying out of the required operations.
150.Subsection (3) gives an owner who is given a notice under section 35 the power to remove and dispose of any property situated on the land that belongs to another person, if that the removal and disposal is for the purposes of carrying out the operations required by the notice. Such property might include machinery that needs to be moved before the operations can commence or could comprise materials from the disused tip itself.
151.Subsection (4) provides that if the owner of the land disposes of such property by selling it, the owner must account to the owner of the property for the proceeds of sale. However, subsection (5) enables the owner to deduct any expenses that are reasonably incurred in selling the property and to offset the proceeds of sale against any sum the owner of the land is entitled to recover from the owner of the property under Chapter 3.