139.Section 35 gives the Authority the power by notice to require the owner of land to carry out specified operations on the land if the Authority thinks the operations are necessary to fulfil the objective set out in subsection (2).
140.Subsection (2) provides the objective is to (a) prevent or deal with threats to the stability of a disused tip, or (b) to stabilise a disused tip or prevent a disused tip from becoming more unstable, so as to avoid or reduce threats to human welfare. Therefore, the Authority has the power to intervene in the interests of the stability of disused tips at various stages, including by taking pre-emptive action.
141.“Operations” are defined in section 90 as including, but not limited to, building and engineering operations.
142.The Authority is given the power to issue notices to owners of land. This includes owners of disused tips but may also include owners of land that is not covered by a disused tip. In practice, such land is likely to be land that is immediately adjacent to a disused tip where conditions on that land are having a direct impact, or could potentially have a direct impact, on the stability of the disused tip.
143.The operations that might be required by a notice will vary in nature and degree. Some operations might be relatively minor in nature, such as clearing detritus from a culvert to allow proper drainage that might prevent a disused tip becoming unstable. Equally, a notice could require a major overhaul of a disused tip’s drainage system that is no longer serviceable.
144.An example of the type of operations that might be required to be undertaken by an owner of land that is not a disused tip might include operations to capture and re-route water run-off which is uncontrollably discharging onto a disused tip from adjacent land and causing instability.
145.Subsections (3) and (4) set out the procedural requirements the Authority must follow in giving a notice under this section.
146.The Welsh Ministers intend to issue guidance to the Authority about its functions under this Chapter. This is likely to include guidance on matters such as allowing sufficient time, when setting deadlines for the completion of operations, for the owners to obtain the necessary permissions or permits to carry out the operations, so as to ensure that the timeframe given for the completion of operations is reasonable.
Commentary on Sections Part 3 – Dealing With Tip Instability and Threats to Tip Stability Overview of Chapter Section 35 – Notice requiring owner of land to carry out operations