Commentary on Sections Part 3 – Dealing With Tip Instability and Threats to Tip Stability Overview of Chapter Section 43 – Reimbursement of owner’s expenses on cancellation of notice
174.Section 43 applies where the Authority has cancelled a section 35 notice and the owner who was given the notice has incurred expenditure in complying with it.
175.Subsection (2) gives the owner a right to apply to the Welsh Ministers to be reimbursed by the Authority for (a) any expenditure incurred by the owner as a result of them having been given the notice, and (b) any expenditure incurred by the owner that is attributable to the cancellation of the notice. For example, expenditure that has already been paid out by the owner in furtherance of the required operations, such as costs that have been paid to contractors or to hire plant or machinery or expenses incurred by the owner as a result of cancelling a contract for works or costs of reinstating the land.
176.Subsections (3) to (6) set out how an application under this section is to be determined.
177.As set out in paragraph 160 above, the intention is for PEDW to determine applications under this section on behalf of the Welsh Ministers. The person determining the application may give a direction to the Authority to reimburse the owner and the Authority must comply with this direction. Section 74(4)(b) requires the Welsh Ministers to give guidance to persons appointed to determine applications under section 43. Section 74(5) requires that those persons must have regard to that guidance when exercising their functions.
178.Subsection (7) places a duty on Welsh Ministers to make regulations about the procedure to be followed in determining applications under this section. Subsection (8) gives Welsh Ministers the power to make regulations making other provision in connection with determination of applications under this section. This means that the Welsh Ministers have the power to make regulations about any other (non-procedural matter) that is connected to the determination of applications under this section. For example, this might include matters that are preliminary or subsequent to the determination of the application that cannot reasonably be characterised as a matter of procedure.
179.Subsection (9) applies the provisions of subsections (3) to (5) of section 40 to regulations made under this section.