National Assembly for Wales

Good morning. Bore da. Can you briefly outline why the Law Commission concluded that current legislation on coal tip safety is in need of reform?

Bore da. Thank you and good morning. I think that the Law Commission had three main reasons in its report for concluding that the legislation at the time was not sufficient to deal with coal tip safety. So, our main reason was with regard to modernisation. Obviously, the 1969 Act was quite an old Act. Also, it was an Act that was enacted when there was an active coal industry in Wales, which is not the case now. So, obviously, as circumstances change, there's a need to think about the system to ensure that the law is up to date and able to deal with current problems. 

The other, second, main reason was that we believe that there wasn't an effective management framework in the light of these particular changes. So, in particular, if you look at the older legislation, you tend to find that this would place responsibility on the owners of tips, but, obviously, as circumstances change, it isn't as easy to find those particular owners and they might not be connected to active mines, quarries or tips, therefore it would be difficult to ensure that the work was taking place. We were also concerned that, although there were powers that were given to local authorities to oversee tips, they had limited powers of intervention, and so this meant that there wasn't necessarily an effective way of ensuring that there would be tip management and safety. Also, because this was placing a responsibility on local authorities, this could give rise to fragmentation. Different local authorities could have different criteria and reasons for interfering in different circumstances, and so we felt that there was a need for certainty, less fragmentation, and clarity in this particular system. 

And third, we thought that there were gaps in the law. In particular, there was no general duty placed on any one particular authority to ensure the safety of coal tips. Also, most of the powers were not necessarily there to provide preventative maintenance work, and so this could also be a possible gap. And we felt that there was no central point of responsibility, and this would mean that there wasn’t an ability to prioritise which tip should be looked at and which shouldn’t. So, those were our three main reasons for concluding that the law at the time was not effective.

Thank you very much. And to what extent do you consider that this Bill addresses the shortcomings of the current legislation identified during the course of the Law Commission's review? And do you consider that this Bill provides for the most robust, integrated and futureproofed regulatory system for disused coal tips envisioned by the Welsh Government? 

Thank you. So, if you look at the areas that we thought about that were particularly problematic, you’ll find that the Bill has responded to these particular issues. You’ll also note from our written evidence that the Bill does implement the majority of the recommendations that were made in the Law Commission’s report, either in full or in a different mechanism. So, to that extent, if you look at the Bill, it is a lot more modern. Our main recommendation was to create one, single, centralised authority that would be able to carry out the work. This is what the Bill does—it does provide for a disused tips authority for Wales, which will then be the main centralising body that can gather all these features together to make sure that there is an ability to intervene and prevent work in these particular circumstances. And this was a key proposal of the Law Commission’s report that the Bill does implement.

Also, if you look at the possibility of gaps in the law, you can see the way in which the Bill is also ensuring that there is a mechanism for filling these particular gaps. So, for example, the authority will have an ability to carry out preventive work. It has this ability to compile a list of tips that can pose a threat to human welfare by reason of their instability. There are monitoring duties. The authority can require owners to carry out works or can carry out works itself. And so, therefore, there are the same kind of elements of responding to the need to modernise, the need to ensure that there is this centralisation, and also to make sure that there aren’t gaps in the law.

Thank you.

Okay. Thanks very much. Delyth.

Diolch. Bore da. The Law Commission's work has focused specifically on regulating coal tip safety, but the Bill establishes a new regime that would cover all disused tips. Do you think that this new regime would be suitable for all non-coal tips or do you foresee any difficulties from that?

Thank you. So, you’re right—the Law Commission’s report was very specific. Our terms of reference were looking specifically at coal tip safety. So, we did recommend that one thing you would need to think about would be whether it should be expanded beyond coal tips to other tips, but our report was just looking at the issues of disused coal tips. So, if you look at the particular differences, obviously, one issue is going to be that there are going to be far more tips to deal with once you expand it. And also, if you look at the work that has been taking place, following the Tylorstown disaster, you’ve had a lot of work that’s been done in identifying where the coal tips are. Now, obviously, that is not the case with regard to other tips. I think this is why the Bill is expanding, but is also thinking about bringing this in in an incremental way so that you can gather the knowledge to be able to expand this to all tips. Now, obviously, the main reason we felt that it would be wise to think about all tips is that other tips can also pose the same danger as coal tips. So, in that sense, this was why we thought that it might be useful to think about expanding it.

Thank you for that. You've already indicated that the Bill is drafted in a way so that this could be incremental and that it would be phased in, or the non-coal tips would be phased in. In terms of the drafting, do you think that that provision would need to be changed in any way, or do you think that it's getting the balance right?

Well, obviously, we weren’t involved. So, often, when the Law Commission does propose reports, we will be involved in drafting the Bill, and that wasn’t the case here. That’s not a criticism; it’s just a different way of proceeding in different types of projects. So, therefore, we haven’t been as involved in thinking through the drafting stage. So, it’s harder for us to comment on those factors that you’d be thinking about in terms of how to expand these particular provisions. I think a lot will depend on ensuring that there’s sufficient information to this body, that they’re able to carry out these tasks, and that the guidance can be used to expand it in these particular circumstances, but it's not something on which we can really comment in detail.

Okay. That's useful. Cadeirydd, if I may, just briefly—? That's interesting, that—. Would it normally have been the case, when you have done preliminary work like this, that you would have then been asked to be involved in the drafting? I utterly take your point that it wasn't a criticism, but I'm just trying to work out how much of an anomaly this would be.

It completely depends on the terms of reference, and so there's no rhyme or reason. It's hard to give a particular figure. So, to give you an example, I'm involved in five ongoing projects at the moment and only one of those will potentially link into a Bill—maybe two—so it's not necessarily common.

All right. Thank you very much.

Diolch, Delyth. You recommended, obviously, the creation of a new oversight body. I'm just wondering to what extent you considered the risk of overlap between its work and existing bodies. I'm thinking particularly of Natural Resources Wales, the Health and Safety Executive, the Mining Remediation Authority, who we'll be hearing from later on today, really. I'm just wondering to what extent you were aware of a potential risk in that respect.

It wasn't something that we covered specifically in our particular report. I think this was mostly because we recognised that these were the kinds of issues that would be fleshed out in a draft Bill. And, obviously, we recommended the creation of a particular authority; we didn't necessarily have a specific recommendation as to who that should be or how it should operate, and so, therefore, we didn't necessarily go into a large amount of detail as to how it would interact with other particular authorities.

What I can draw from what we got from our consultation exercise is that most of our consultees did think there was a need for a new body, because of the specific expertise that you'd need to deal with, in our case, disused coal tips and, with the expanding of the Bill, disused tips more generally. So, I think, to that extent, the way in which it's been set up is that these are very specific specialised functions that are given to the authority. Yes, there will be an element of interaction, but what you do find in the Bill is that you have provisions for information sharing, which will help to ensure that the new authority can share information with other institutions, and, obviously, they have been working together already in these particular areas—obviously, not the new body, but the bodies themselves have been working with the coal tip bodies to think about moving this project forward up to the Bill. So, I think, to that extent, they probably are used to, in some senses, understanding how these processes work.

Okay, so I gauge from that that you're comparatively content that the Bill is drafted in such a way that avoids, or at least helps manage, those potential overlaps. Yes. Okay. Diolch yn fawr.

Just on the register, then, of disused tips, can you just outline the Law Commission's rationale for recommending the establishment of a comprehensive register of all disused tips, because, obviously, the Government is not including the lowest category tips?

That's right. Thank you. Our recommendation was with regard to having a comprehensive register of all disused coal tips because, obviously, our report was just looking at coal tip safety and wasn't looking at tips more generally. And the main reason for wanting to have a central register of all coal tips was to ensure that we had comprehensive and clear accounts, so that you could have effective management of those particular tips. In particular, we felt it was important to have a single source of uniform, reliable and coherent data, so that you could help manage disused tips effectively.

But is that not possible in relation to all tips, then?

It isn't necessarily that it's not possible in relation to all tips. I think what the Bill is doing is it's recognising a different way of ensuring you have that particular set of coherent data. So, there is a responsibility on the authority to go away and investigate all tips. They can carry out preliminary investigations and then carry out full investigations. So, that element of having a central source of data will be there, but, obviously, there will be a different consideration as to when this will and will not be put on the register, depending on the element of risk posed by that particular tip. So, the main aim of ensuring you have a centralised system of data will be there through the Bill.

Okay. Thank you very much. Delyth.

Hi, again. I want to ask you about risk assessments, if you wouldn't mind. I know that you had recommended that all disused tips should be subject to a risk assessment. The Bill, as it's drafted, splits it up and it makes provision for a preliminary assessment of all disused tips, and that would then be followed by a full assessment, but only if required. There might be some concerns about whether that is diluting the safety regime. Do you have a view on that approach and whether it would be robust enough? Before you answer, linking in to my earlier questions, my initial concern would be whether the reason that this has been broken up is because the scope has been expanded to such an extent that there probably wouldn't be capacity to conduct a full risk assessment of all of the tips.

Thank you. I can understand why you've raised this particular issue, because, obviously, a lot of the differences in the Bill are because you're moving from coal tips to all tips, which is, understandably, different from what we investigated in our report. The reason we recommended that all tips should be subject to a risk assessment isn't just with regard to the fact that there's a small number of tips, but it was because of the basis on which we were trying to find other regimes to be able to go away and find a system that would have particular safety mechanisms and, in particular, we were looking at regimes that were put in place with regard to reservoir safety, and they had this element of a management plan. So, that's where the requirement of a particular management plan comes from, and the idea of having a kind of risk assessment across all those particular areas.

However, as we recognised in our report, we're legal experts, and we do a massive amount of consultation to get the information, but we're not mining experts. So, in our report, we recognise that we weren't necessarily best placed to explain to you precisely what would need to go into a particular form of risk assessment. We did recommend and recognise in our report that that would need to be thought through carefully—you might need different types of risk assessments in different types of pits. So, it's not necessarily the case that it's just because it's expanded, and I don't really have the technical detail to know whether those assessments would be sufficient. But it's understandable from having a system that could recognise that. What you'd need for a risk assessment would vary with different types of tip.

Thank you. I utterly take that point and I won't pursue that further with you, because I appreciate that your expertise on this is not mining expertise, but that is very helpful, so thank you.

Finally from me, please, a lot of what was originally proposed in the White Paper that might have been expected as subordinate legislation has instead turned out to be guidance as drafted in the Bill. So, you'd recommended that Welsh Ministers should prescribe the minimum content of disused tip assessments in subordinate legislation. Now, there are no powers to make subordinate legislation on the matters in the assessments in the Bill, instead, the Welsh Government would intend to issue guidance to the authority on those matters. Do you think there would be any risks associated with that, please?

Thank you. Probably the best way of explaining this to you is to explain what would have motivated the Law Commission to think about using statutory instruments. So, when you look at these particular issues, the Law Commission is often thinking about what should go into primary legislation, to Acts of the Senedd, and what we think is more suited to go into secondary legislation. Often, we're thinking about it in terms of how frequently will it need to change, for example, and also how much is this dependent on an element of technical information. So, if you think about the element of what would need to be contained in an assessment, this is something that we'd see as more suited to secondary legislation, subordinate legislation, as opposed to primary, because it's highly technical information. Also, it would need to be flexible; as you carry out these assessments, you will learn more about what is the best way of carrying them out as you gain the element of expertise and it would allow you to update things, particularly in light of climate change, in order to make sure that you were carrying out the right kinds of assessments in these particular areas. So, all of those would have dictated us to think about moving this towards secondary as opposed to primary legislation in those particular circumstances. We tend in those situations, as a commission, to recommend secondary legislation rather than guidance.

What I can do, because I'm also a constitutional law expert—I have to make it clear I'm now talking more in my expertise as a constitutional lawyer, rather than on behalf of the report that was set out by the Law Commission itself—is give you some understanding of what the differences are between statutory instruments and guidance, which can then hopefully help you think about whether you think this would be sufficient. So, I'll try my best.

This is very helpful. 

No problem. So, when we look at secondary legislation and statutory instruments, obviously there has to be a power in primary legislation to enact them, otherwise you can't do that. That's not the case with guidance; the Welsh Ministers do have a generic ability to issue guidance, so you don't need to put that in legislation just to be able to issue the guidance. So, that's one difference. Obviously, even if you give a power to enact regulations, that doesn't necessarily mean that they will be brought in in exactly the same way that a power to enact guidance doesn't necessarily mean that the guidance will be enacted. One slight difference is that, obviously, if you have a piece of primary legislation giving a power to make secondary legislation, that is evident and obvious and so might be able to increase the ability of the Senedd to say, 'Do you think you ought to bring in this particular piece of secondary legislation?' If you're aware of, in explanatory notes, the ability to bring in guidance, there's still that ability too, but it might not necessarily be as broadly understood by everybody in those particular circumstances.

If you enact a statutory instrument, then there will be democratic scrutiny over it, because there'll normally be some form of Senedd oversight, either through affirmative or negative approval of the measure; that's not the case for guidance, so that's another difference between the two. But that's mostly because if you enact a statutory instrument, that is law so that has legal effect in and of itself. That's not the case for guidance, but as you know from this particular piece of legislation, the proposed Bill, there would be the element of a duty to give regard to the guidance and take it into account when enacting your functions.

So, if you're trying to summarise all those elements together—guidance: there might be a risk that it isn't brought in, but then you could have a similar risk with statutory instruments. Also, with statutory instruments, there'll be democratic scrutiny; with guidance, there would not. But guidance is much more flexible, and can be changed much more quickly in terms of technical need and to make sure that it's up to date, than statutory instruments. So, that might help you make your evaluation.

Yes, that's very helpful, thank you. And I think it would be unfair to put you further on the spot, because I appreciate that you were giving that evidence to us as a constitutional expert, rather than about the report specifically. That has been very useful. Thank you very much. Diolch, Cadeirydd.

You recommended a right of appeal against an entry in the tip register on the grounds that there is no tip situated on the land. Can you explain the rationale for that?

Of course. So, obviously, 'nobody is perfect' I think is the main rationale for that, so it's recognising, particularly when you're dealing with historic situations, that mistakes might be made. And so when mistakes might be made, there's a need to make sure that there's an ability to correct a particular mistake. And in these particular circumstances, if a mistake is made, it might be disadvantageous to the landowner if they're on the register, but actually there isn't a disused coal tip or a disused tip on their particular land. So, the main element of having an appeal right was to make sure that you could correct a mistake in a circumstance where that mistake might be disadvantageous to you.

Okay. So, on that, rather than an appeals process, the Bill enables the tip owner and other persons to make representations on the proposal to register a tip, which the authority must have regard to when deciding whether to register a tip. To what extent does the approach taken capture the intent of the Law Commission's recommendation? And what are the advantages and disadvantages of this approach compared to a formal appeals mechanism?

Thank you. So, obviously, we did recommend some form of appeal right, but in our report, we recognised that it would also be for the Welsh Ministers to think about how to implement that particular appeal right. So, what the Bill is doing through having this element of giving notice and the right to make recommendations is thinking of a mechanism of bringing in a particular process to appeal the problems of mistakes that might be made in these particular circumstances. So, in this particular circumstance, you’d have to think about how likely is it to make these particular mistakes and how effective would this mechanism be to check them if a mistake was made. So, if you look at the way in which the Bill works, there is this element of a notice, the right to make recommendations, and this is coming in when you’re trying to carry out a full assessment of the situation. So, hopefully, in a full assessment, you would be able to accurately work out whether there is or is not a tip on this particular piece of land, so that should hopefully mean that it’s less likely that a mistake will be made in those circumstances. And this ability to have notice, to make recommendations, can hopefully provide extra information to make sure this particular mistake was not made. So, there is this element of trying pre-emptively to ensure that it could be corrected in these particular circumstances. My hope would be, or my guess would be that, if there was a particular mistake and a mistake was made and you were put on the register, there would still be the ability to use things like judicial review in extreme circumstances. So, I think those combined together should hopefully provide an effective mechanism.

Thank you. The Law Commission recommends that the risk classification of disused coal tips should have regard to the risk of stability and the consequences of a stability failure. It also recommends including pollution, combustion and flooding risk as factors for consideration in reaching a risk classification. Can you outline the Law Commission’s rationale for this?

Of course, thank you. So, obviously, we recognise that instability was the main danger, and in our consultation exercise prior to our report we asked an open question as to whether other risks should also be included. When we asked this question, 90 per cent of the people who responded to that particular question thought that it would be a good idea to include pollution, combustion and flooding alongside instability. Now, obviously, that wasn’t in the context of every possible disused tip, this was just in the context of disused coal tips. So, we had to take that into account when thinking about that particular response to our consultation question. The reason most consultees gave for expanding the definition was because they felt the definition would be more comprehensive, they also thought that it might be more cost-effective to examine these risks together, and consultees also pointed out the importance of including environmental risks in these particular assessments.

Thank you.

Bore da. Under the Bill, disused tips will be categorised according to the extent to which they threaten human welfare because of instability. Obviously, this doesn’t give full effect to the Law Commission’s recommendations, which you’ve just outlined. So, what do you think are the advantages and disadvantages of the approach that has been taken in the Bill?

Thank you. So, if I draw again on some of the people—again, the people we consulted—who didn’t think we should expand the definition, most of this was to recognise that the more you have different types of risks, the harder it might be to understand what the register is communicating when it talks about tip safety. So, for example, how would you evaluate a tip that is not necessarily posing a danger to life because of instability but does have a combustion risk? Should this be higher or lower than a tip that has human instability risks? So, it’s thinking about how you would balance these different criteria and whether it would give rise to a lack of clarity on the register, given that you’d have lots of different factors pulling in different directions when you’re trying to work out the risk of any particular tip. So, it may well be that the advantage of having just a focus on instability is that you’re focusing predominantly on the main risk. It’s easy and simple to understand the extent to which these particular disused tips will pose a risk to human welfare because of instability, therefore you’re clearly focusing on the main risk and it’s simpler and easier and clearer to understand. Obviously, the disadvantage of this approach is it might mean that some risks that are not connected to instability are not recognised on the register, but it could be that these are still taken into account when you’re carrying out your investigations.

Right, but your recommendation was different to what is actually now in the Bill.

That is correct, yes.

Thanks very much. The Law Commission recommended the criteria for categorisation be set out in regulations, and the Bill makes provision for categories of disused tips and places a requirement on the authority to publish a statement of its policy on categorisation. Do you have any view on that approach?

Thank you. I think we're getting back into the problems that I discussed earlier, when, obviously, you can take a different choice when you're drafting as to how to implement these. The main motivation of the Law Commission was thinking about how far should this be in primary legislation, and how far do we think, because of its technical nature—and the fact that it will need to be flexible and change frequently—it might be suited to not being in primary legislation. The difference here is, obviously, this is focusing on a policy, rather than on an issuance of guidance. So, I'm back to putting my constitution lawyer hat on again, I'm afraid, and trying to give you some kind of elements of what the committee might wish to think about when assessing whether they think it's the right way forward.

So, a lot of the differences I drew before, when we think about statutory instruments and guidance, are similar when we're thinking about statutory instruments and policies—so, again, you don't need a power to go away and issue a policy in the way that you would a statutory instrument. Also, if you're thinking about policies, they don't have the same kind of element of legal force as statutory instruments, and policies don't necessarily have to be published, but, in this particular circumstance, they would be. So, again, it's thinking about this aspect of the policy will be more flexible, will be able to change more frequently, but there wouldn't be the same kind of element of democratic oversight as there would be with a statutory instrument, and also there wouldn't necessarily be the same legal consequence as there would be if it was in a statutory instrument. But it would be there to be flexible, give some element of clarity as to how this was brought into practice, and to be able to change frequently. 

Thank you very much. Thanks.

Diolch yn fawr. Joyce.

Good morning. I'm going to ask about management plans. The Law Commission recommended that all disused tips should have a statutory management plan, which the authority would be required to arrange. But, as pointed out in your paper, the Bill doesn't make provision for management plans. Instead, the Welsh Government intends to issue guidance to the authority, which will set out an expectation for the authority to produce plans for high-risk tips. Do you have a view on that approach?

Thank you. So, again, as I mentioned earlier, we did focus on the idea of a scheme that would set up statutory management plans, and this was because, at the time, we were looking at other regimes in place, and we had looked at the system in place for reservoirs, which did focus on management plans, and so we felt this would be one way of ensuring that there was an element of good management with regard to coal tip safety. If you look at our recommendations, and you look at the Bill, the Bill is obviously taking a different approach to try and achieve the same objective of ensuring you're managing disused tips effectively in these particular circumstances.

What you do notice from our report is that we recognise that what would be needed in a tip management plan would vary from tip to tip. So, some might need very little management; others might need very detailed and comprehensive plans. And so, you would need to think about how that would vary in different circumstances, and also think about what kind of expertise you would need to gain and grow, particularly as you expand from coal tips to other tips, to make sure that you had effective management.

So, I think what the Bill is doing instead is thinking about preliminary and full evaluations, coming up with notices for works to be carried out, or the authority to carry this out, combined with a duty to keep tips under review. So, it's a different scheme for trying to achieve the same objective. And I think, in particular, one of the things it is doing is remedying one of the problems we pointed out in our report. Under the old law, there was almost a catch 22. For a local authority to be able to intervene, it needed to know there was a risk of instability, but it wouldn't necessarily know there was a risk of instability until it went away and looked. That problem is one of the reasons why we felt there needs to be greater intervention and tip management in circumstances, and this is a different way of trying to achieve the same element of having effective management and trying to come up with plans and notices as you go. So, it could be, as you have more expertise and more knowledge, the ability to then bring this in later is a better way of managing in these circumstances.

So, you've sort of outlined, I'm assuming, the risks associated with not including the provision for management plans in the Bill. But there is no provision in the Bill requiring Welsh Ministers to issue guidance on the management plans. So, what are the advantages and disadvantages of leaving it to the discretion of Welsh Ministers to determine whether to issue guidance? 

I think we're back to the points that we made earlier, that obviously you don't need to have a power in primary legislation to be able to issue guidance. This is something that Welsh Ministers have the power to do. And we're back to the element we said earlier, that, if there is a discretion, obviously the risk is that it isn't implemented. But you can have the ability—. You're aware of this, there's the fact that you as a committee are aware of this, there are annual reports as well. So, there are some political mechanisms to make sure that the guidance would be issued in these particular circumstances. The advantage of having it through guidance, as I said, is that it can be more flexible, can adapt and can think about the technical changes that you need in those circumstances. 

Could I pursue the flexibility? Because flexibility can work in both directions. 

It can, yes.

So, is there a risk in that flexibility—which you've repeated, quite rightly, all morning—is there a danger that a new administration might use that flexibility in a different direction? 

Well, obviously, I can't talk as to what a particular set of Welsh Ministers will or will not do in particular circumstances. There's always going to be a danger that flexibility can mean that you're going to have more detail or less detail in those circumstances. But what I think we can point to is the fact that there will be an element of oversight, so there will be the ability to look at this. The authority itself will obviously be interested in having this particular guidance, particularly because it's meant to follow it, and the body itself can be acting on its own expertise in these circumstances. So, yes, there is a risk, and it's not one that, really, I'm in a position to evaluate; I think that's really for the committee to think about the different pros and cons of those risks in the future. 

Thank you. I'm moving on to definitions now. So, do you have any views on the meaning of ‘tip’ and ‘disused tip’ set out in section 81, and is it, in your view, sufficiently clear? 

This is building on the fact that there is an element of disparity between what the Law Commission was thinking about and its definition of a tip. But, again, as I pointed out earlier, we weren't involved in drafting the Bill, so we weren't privy to those particular conversations as to how you might word it in these particular circumstances. And in particular, our recommendation was based on coal tips, it wasn't based on tips more generally, so there might have been issues that have led to focusing on a broader, more vague, with fewer examples, definition, as you find in the Bill, than you find in other particular regulations. So, it's really a matter of interpretation, but it is a broad provision that I think is capable of capturing what we mean by a tip and a disused tip. 

Thank you. And the Bill seeks to ensure disused tips do not threaten human welfare by reason of their instability. Do you have a view on the meaning of ‘threat to human welfare’, set out in section 82? In particular, is it sufficiently clear? 

Thank you. So, again, this isn't something that the Law Commission consulted on or put in their report, so I'll be mostly drawing on my experience as a lawyer as to whether I think this is clear and covers the aspects of things that you need to think about. I think that what is relevant when you look at the Bill is that you do have this list of what ‘threat to human welfare’ could include, which thinks of not just loss to human life and serious human illness or injury, but also thinks about damage to property, disruption to food, water, energy or fuel, serious disruptions to systems of communications and disruptions to facilities for transport. So, I think it is focusing on the right kind of features and would give sufficient guidance to think about what we mean by 'threat to human welfare', and make sure that we're not just thinking about it in terms of threats to human life.

Okay, and could I ask about the 'threat to human welfare'? Would that include loss of property or land because some of these tips, of course, are behind where people live? So, the right to a place to live, which, in a potential slide, could have been removed from that person, would it cover that? 

I'm not really in a position to set out how that might be interpreted in future, I'm afraid. 

Okay, that's fair enough. And how does the definition in the Bill compare with 'a danger to members of the public' used under the existing regime set out in Part II of the Mines and Quarries (Tips) Act 1969? 

I think that 'a threat to human welfare' has an ability to be broader than the original definition.  

Just on definitions, as a committee we've had evidence just drawing our attention, really, to the meaning of tips being a bit different when it comes to the Mines Regulations 2014 and the Quarries Regulations 1999. It's much broader than what we have in the Bill. Now, is there a risk there that that kind of inconsistency across that regulatory regime introduces complication and doesn't help, potentially? 

Thank you. So, I think what you are referring to is that, if you look at the definitions in the Mines Regulations 2014 and the Quarries Regulations 1999, these include specific examples that would be included in the definition of a disused tip. So, for example, there are references to overburden dumps, backfill, spoil heaps, stockpiles and lagoons, and when you have walls that are related or are structures that confine a tip, it would include those as well. Now, this isn't included in the Bill per se—those extra examples are not there—but the examples in the regulations do say that these are just examples and not limited to those particular circumstances. So, what the Bill is doing by not giving those examples, in some senses, you could say, 'Well, it isn't as broad because it doesn't specifically include them', but you could also interpret that by saying, 'But it is as broad because it isn't saying they're not part of them', if that makes sense. So, a lot of that would depend on how it's interpreted in future. So, you're right, there could be a potential for differences, but there's also the ability to interpret this definition, which doesn't include these examples, as still, nevertheless, including them. So, a lot of this will depend on how that provision is interpreted by the courts. 

Okay, yes. So, yes, the potential for is there. Okay, thank you. Diolch. Janet, then, I think, next. 

The Law Commission highlighted clashes between the current coal tip safety regime and environmental legislation. Can you explain what these clashes were, for both non-urgent and urgent work?

Okay. Thank you. So, we didn't—. In our report, our terms of reference didn't expect us to look fully at environmental law but we did have a look in our consultation exercise and our report at the extent to which there could be potential clashes. With regard to urgent clashes, the concern we had there is, obviously, if you have an emergency situation where you have a disused tip and there has been a slide in particular circumstances, you do have a lot of material that could be blocking waterways, that could be blocking roads, that could be landing on property, and so you need to move it. And the difficulty with this is, obviously, this is classified as waste and there are various environmental regulations that would be put in place for the regulation of moving that in a way that satisfies environmental law requirements. 

Now, there are provisions for exemptions for these regulations in urgent and emergency situations, so the question in urgent removal situations would be is that exemption sufficient to ensure that it's okay for you to go in and move the waste without there being a danger that you're then breaching environmental measures by moving something that is waste in a way that doesn't satisfy environmental law requirements. That's the issue that we were thinking about with regard to urgent situations, to make sure you are able to move things and restore things safely without being in trouble from other environmental protections regulating waste.

When it comes to non-urgent situations, you could be in a situation where you don't need an emergency to move something, but you do still need to move something fairly quickly. Then the issue becomes is it possible to obtain these permits in time to make sure that you can get all the permits that you need to be able to regulate it in these particular circumstances. And also there's a more general potential clash when we're thinking about non-urgent situations, because environmental legislation is very much based on the idea that the polluter pays, but that's not necessarily what's going on when we're thinking about clearing up disused tips. So, those were the kinds of scenarios we were thinking about in our report.

Fantastic. To what extent does the Bill include appropriate measures to ensure these clashes are avoided under the new regime, and, in particular, do you genuinely believe that it will enable a rapid response when urgent work does become necessary?

We're having to think very carefully about this, because the way that the Bill is implementing its procedures is different from what we were looking at in our particular report, and also the Bill is focusing predominantly on prevention. It isn't necessarily geared to focus on what do we do in a particular emergency. That is obviously a policy choice that was made by the Welsh Ministers and the draughters, and there may well be other provisions that can be used in emergency situations to intervene. It isn't necessarily the design of the Bill to think about these particular urgent situations.

In our recommendations, when dealing with emergency situations, we felt that it would be useful in those circumstances to have directions from Welsh Ministers to deal with the emergency, and that could also ensure that difficulties wouldn't arise with regard to environmental measures if you went in quickly to move the waste.

When we're thinking about non-urgent elements, a lot of that is going to depend on the notice requirements and how they operate in practice, and whether that will ensure that you can obtain the relevant permits you need to carry out those works in particular circumstances. I think those will be elements you'll need to think about. But it's difficult to think about how far this will enable a rapid response, because that's not the main aim and purpose of the Bill. The main purpose is to do with oversight and prevention.

Thank you. Can I just say it's excellent evidence that we're taking here? Thank you.

I think we've covered most of the bases, unless any Members have anything else they wish to ask. Alison, do you have anything else that you wish to raise?

No. Thank you very much for inviting me. I think the only thing to raise is that this wasn't my report. This was carried out by the commission before I joined the commission in March of last year. Thank you very much for giving me this opportunity to give evidence and being understanding that I'm relying on the work of everyone in the commission. Thank you very much.

I think you've done them justice, I have to say. Diolch yn fawr iawn. Thank you for the evidence that you've shared with us.

Committee will now break. We'll break for 10 minutes, and reconvene for a slightly earlier start to our second session, if we could, at 10:30. Diolch yn fawr iawn. Thank you.

Natural Resources Wales are major tip owners. We're responsible for 143 tips, depending on exactly how you measure a tip. That's ex-industrial colliery coal tips, and at least 50 non-colliery tips. Nearly all of those are on the Welsh Government estate. Although we're responsible for managing them, they are the Ministers' tips. One of them is on one of our national nature reserves—I guess we own that more directly. As a tip owner, we have major landowner liabilities under the current regime, and responsibilities. And then, we are an environmental regulator. We don't regulate tips directly, we don't have powers and duties to regulate tips directly, but we do regulate several elements of environmental regulation, which are dependencies for how tips are managed, and the kinds of impacts that tips could have, and the impacts that managing tips could have on the environment. So, we're both the regulator and a tip owner.

We'll go into that in greater depth in a moment, but how do you envisage that role changing somewhat, as we move forward into the new regime?

In terms of us as an environmental regulator, there's nothing direct in the Bill that gives us new powers or duties. But clearly, as a regulator, we will be interacting with the new authority and tip owners who are implementing the new legislation. In some ways, that's nothing new for us; that's what we do as an environmental regulator. But undoubtedly, there will be greater expectations on us to provide advice. As we go through the evidence today, there are moments when that might be something where we're particularly going to have to be on our mettle about getting that regulation correct. One of the things is that we need to manage the expectations on our capacity to be providing lots more advice, and we think the way the Bill is structured will help with that.

Is that code for 'you haven't got enough capacity the minute'?

It's not code for that, but that's a reasonable question. It's code for saying that, whenever there's more work to do, we have to work out how to do it. We have to prioritise correctly. That's the thing. As a tip owner, yes, it clearly brings into sharp legal focus work that we're already doing. We're already doing a lot of work with partners, with the Welsh Government, to manage the tips in our care. It brings that into legal focus and gives us those duties as a tip owner.

Thank you. And similarly with the MRA.

Since 2020, we've been utilising our skills and knowledge, providing expert advice into the Welsh Government. We originally worked with them on collating the register of tips that is now in place, and we've been providing cost-effective inspection services since that time, and continue to do so, with a view to having all coal tips externally inspected by the time the new regime is in place. We own 26 coal tips ourselves, and these are some of the larger ones within south Wales. We've always managed those tips on the principle of them being like an active tip, so our inspection regime and our maintenance regime has been similar to what's in the legislation. We've taken that view on the basis that they are the largest tips and some of these tips have got problems, so that's why we've always done that.

Looking forward in terms of our role, it's very much about how would we work and continue to provide these cost-effective services. We have got a team in place at the Mining Remediation Authority that does this work very effectively. So it would be certainly working with the new body through the transition period, and then talking to them when they get in place as to what services they would want us to continue providing, because we have the skills and knowledge to be able to do that, and we've built up quite a good skills base on the tips we're currently inspecting for them.

To what extent has that discussion happened, or is happening?

We've been having that discussion with the Welsh Government, but then the new supervisory body will be an independent body. Once they're employed, the chief executive and the chair, they're the conversations I intend to start having with them.

Sure. Thank you. And capacity-wise, do you see any potential impact?

No. If anything, we're ramping up our team at the minute to make sure we're covering all these inspections

And the Health and Safety Executive—what kind of evolution, potentially, will we see? Or is it just business as usual, just as another element?

I think our position is somewhat simpler as we're not tip owners. Our role as Great Britain's workplace safety regulator gives us that sort of level of clarity. We have responsibilities for enforcement under the mines regulations and quarries regulations as part of that overall safety regime. That sits under the umbrella of the Health and Safety at Work etc. Act 1974. A lot of that will be focused on risks to people. While things are actively being worked, we have a direct regulatory role. If things are abandoned or disused, and there isn't, therefore, an immediate risk to people, we might have a very different position on it. So, our resources would be prioritised on that basis.

Picking up the question that you've asked about foreseeing future capacity, as it stands at the moment, obviously we will have to consider what extra calls there may be for our advice and so on, and how we could prioritise that within existing resourcing levels, which is something, as colleagues have already said, that is part of what we do anyway, taking that approach.

Because the identification of greater risks might indeed lead to you needing to get involved more with those particular issues.

Potentially. And as I'm sure we'll hear throughout this session, as something moves from disused to used, our regulatory role will change as work activities change. And so that in itself will, potentially, draw on HSE's resources. But that may extend beyond our dedicated mines and quarries team. It's something we may be able to absorb within other areas of HSE's current resourcing.

Excellent. Thank you. That has set the scene nicely for us. I'll invite Delyth Jewell to lead us in the next section.

I was going to ask you, firstly, to what extent you think that the Bill is needed. Some of you have already touched on this and spoken briefly about the legislative clarity that it might perhaps bring to some of your roles. But in the context of the fact that there's quite a lot of work already going on of inspecting and maintaining, could you talk us through, please, in what ways this will help?

I can lead on that. Certainly, the current legislation as regards disused tips is probably not fit for purpose, and that is why we've worked very much with the Law Commission, and I think they've outlined why they think the new legislation is required quite well. Because I think this legislation then sets forward about how disused tips are going to be managed going forward and made safe, which I think is the most important thing.

In addition to that, we've got to have one eye looking forward on climate change as well and some of the implications that that's going to bring. So I think this proposed legislation will move us forward, and make sure that we are covered for that going forward.

I think the work that we've undertaken since the Tylorstown slip has really brought some consistency on how we now look at coal tips in Wales and manage the risks on coal tips in Wales. A lot of the work that we've undertaken, the categorisation, has brought some consistency into that, and the legislation will just take that forward, and, along with the guidance, I think make it into a more useable framework to see that go forward.

Thank you for that. 

Yes, so, all the things that Carl says, I absolutely agree with him. For us, it’s one of those things that—. A tip becoming unstable is a thing that doesn’t happen very often. But, yes, when it does happen, it’s absolutely horrendous—potentially horrendous. And I think, when you’ve got these high-impact, low-risk events, as an institution, what happens is, because nothing happens year, on year, on year, on year, you can lose attention on them. If you add in climate change to that, and then if you also add in social justice—because many of these tips are in more deprived areas—we think that having the new law, the Bill, will help us all to maintain focus, even when, if we get it right, nothing very much will happen year, on year, on year. But the law will help us to maintain focus.

Delyth. 

Thank you very much for that. It’s very interesting that you make that point about social justice as well; I’m sure we’ll come back to that.

A number of changes have appeared between what was originally proposed in the White Paper that preceded the Bill, and the Bill as it’s drafted. So, the White Paper had talked about protecting, and I’m quoting here,

'communities, critical infrastructure and the environment by introducing appropriate management of tips.'

Whereas the Bill as it’s drafted says that the safety regime would focus on the protection of 'human welfare', and that’s defined in section 82. Could I ask the panel’s views on that change, please, and whether you think that strengthens it, does it dilute it, or are there some elements that you worry might be lost?

I’m happy to lead on it and say, from the Mining Remediation Authority’s point of view, no, we don’t think it defers from that meaning. We think the threshold is appropriate and it will cover all the things that we need to do. I think the important thing is, really, then, how you look at that from the management plan’s point of view, and make sure the categorisation is correct on these terms. 

Yes, so we noted that the definition of 'human welfare' includes things like impact on infrastructure and so on, which we think is right. Our feeling is that it’s a reasonable rescoping of what could have otherwise have been too complicated. Certainly, if you look at our consultation response to the White Paper, we did promote covering all elements of environmental legislation. But one of the things we do always is we learn—we learn from evidence, we learn from collaboration. And, certainly, as we were developing the work on how the Welsh Government’s coal tip safety taskforce operated, and working out how to operate together, that really brought it to our attention, just how many layers of legislation there were. So, I think, trying to unpick those in a Bill would probably have been too complicated. Therefore, we think that this is a reasonable solution to that, and we do think it will probably work.

I think I’d support that, that it brings some clarity. Certainly, from HSE’s point of view, obviously, I’ve said our role is about the safety of people, of individuals, and this definition goes broader than that with the welfare. But, I think, when you’re taking into account disruption of supply, communication and so on, and that much broader definition, as colleagues have said, I think that gives some clarity to those with duties to actually understand that you can’t sort of compartmentalise your thinking about how you make sure something stays safe.

Thank you, all, for that. To delve a little further into the detail of it, 'human welfare' is defined here as referring to serious damage, illness and disruption. Now, in terms of that term 'serious', do you think that that is well-enough defined, and will it be clearly enough understood in terms of where that threshold might be? And do you think there needs to be further fleshing out to define where the threshold is, what would meet it?

I think, for me, as defined in the Bill, it works, and 'serious' is the right word to use. I think it then comes down to each tip has got to have a management plan, and then it’s that categorisation of what you consider those risks to be for each individual tip on that seriousness scale. But, for the Bill, I think it is appropriate, in my view.

If I could just come back, Carl, if that’s all right. Not all of the tips, of course, would have a management plan; it's only the highest risk, the ones that are already recognised as being the highest risk that would be there, although I may be straying into someone else's area of questioning here. In fact, I will not stray into that area of questioning, because this is something that someone else might bring up. But, that's useful. Forgive me. Did anyone else on the panel want to come back on this?

Carl wants to finish something.

I was just going to say that, when I talk about management plans, I'm talking about the initial view and the categorisation of those tips. 

Right. I understand. Okay, thank you.

Dominic, and then we'll come to Rick.

To us, it feels appropriate. And, again, for us, it's one of those things where we feel that trying to define it, tie it down and tie it down in a Bill may actually have that perverse consequence of making it harder for everyone to work together to work it out as we go along. We think that, if you add the Bill with the requirement to produce the register of tips, and that's a process of categorisation, that should help. But, as a regulator, we understand this, there's the Bill and then there's case law, and case law will no doubt help to define that. 

Thank you. I'll just add to that from HSE's perspective. We work a lot with the terms 'serious' and 'significant', and we use our own guidance, both internally and externally, to help people to understand that. The bar that we put in terms of human safety is that 'serious' is something that could cause permanent injury or death; 'significant' causes an injury from which somebody could recover. But it helps us to understand in terms of risk categorisation and how close a duty holder has got to managing that risk. So, it's come out of the evolution of guidance, and I think that if you've got that flexibility, that legislation doesn't tie it down too tightly, you can then work out what that means in practice, supported, as you say, by guidance, by codes of practice, by case law, whatever level is required. So, I think it's a pragmatic way forward. 

Thank you. Rick, if I could check, and this may well be exactly what you were just talking about, I wanted to clarify: the terms 'serious' and 'significant', are they directly in line with your descriptors in your enforcement management model? Is that exactly what you were just talking about?

It is broadly, other than the fact that, within the Bill, your 'human welfare' definition is more broad. As I said, we're talking about a serious injury to someone being permanently debilitating. You can't quite make that same category for a disruption of supply, for example, which is part of your broader welfare. But it gives you that parallel to work from. So, I think, broadly, you're in line. And that's the area where we would want to work with the authority in the future, and other regulators, to understand that we're working on the same definition and giving that same level of guidance.

Thank you. That's very helpful. Dominic, in NRW's written evidence, there's a suggestion that you've changed your position—or that NRW has changed its position—on the need for a new safety regime to ensure that disused tips don't threaten the environment by reason of instability. Could you explain that more, please?

We touched on this earlier, but it would be good just to go—

Yes, sure. Yes, it's an interesting one. I hesitate to say that we set up 'a position'; we provided advice in the consultation response to the best of our ability at the time. And, as I said, we're an evidence-based organisation, we're always learning. And the collaboration that we've been going through with colleagues on this—Welsh Government, local authorities, the Mining Remediation Authority and others—has been really helpful. In the light of that work and just looking at how much dependent regulation there is, our feeling is that to not try and tie all of that down in a Bill is probably the right thing to do, and then, instead, to focus on instability and the impact of that on human welfare is the correct thing to do. Because we think, otherwise, it would have been too complicated and too prone to perverse unintended consequences, if the Bill tried to cover all aspects. We could have ended up really tying ourselves in knots on how to define a tip, and when exactly does this change in regulation apply in this particular situation. So, having done that work in collaboration, we think that the solution that's presented in the Bill is a better solution than trying to cover every potential aspect of the environmental impact. I note that the Law Commission said something similar, so I feel quite comfortable about that. [Laughter.]

Don't worry, we're not picking on you. [Laughter.] Thank you very much, that's fine.

Diolch, Delyth. Thank you. Okay, Janet.

These questions are for NRW and the MRA only. What is the potential interplay between the new regime and existing environmental and planning legislation? And to what extent does the Bill take adequate account of this, including when operations need to be immediately undertaken? And what is your view on the Law Commission’s recommendation that there should be exemptions to existing requirements in such circumstances?

Yes, so, our view is that it is potentially challenging. It already has been in some of the urgent situations that we've had. Even when works are required urgently, then the law still has to be complied with, and we, as a regulator, have to comply with that law. The choice in the Bill is to deal with this by a focus on human welfare and by the provisions and the guidance and the way of implementing it, which promotes collaboration and builds on the collaboration we've already got. Again, we think that is probably the best way. We think that the guidance for a management plan for the riskiest tips would be really helpful, and we think that the plan for the way the Bill is going to be implemented, which gives space to carry on the work that's already going on, in working out how this is going to be applied, will help.

But there could be some acute moments when we, as a regulator, will be faced—. And it's not unusual. As a regulator, we're faced with this kind of decision a lot, about how do we implement that particular bit of environmental legislation when in fact, say, if you take our duty of sustainable management of natural resources, we might want to have a different trade-off and a different balance. We do that all of the time, just, in this case, it could happen when it's particularly urgent and particularly risky. What the Bill sets up and what the Bill promotes are things like contingency planning, understanding of risks. We've already done a lot of work through the coal tip safety taskforce to promote that. We're testing some guidance that we produced. We think that will help.

In terms of the Law Commission's thoughts on this, and they particularly focused on the interaction with the legislation on waste, we feel that that is potentially the trickiest bit. So, I think the most we can say is that we agree with the Law Commission that there could be things to look at here. I, as a regulator, don't want to go much further than that, but I think the Law Commission are saying some things that are definitely worth looking at, particularly when it comes to interaction with waste.

Yes, I think Julie wants to come in on that, and then we'll come to Carl afterwards.

Thank you very much. Yes, well, actually, I was going to ask you to give an example of where you thought these challenges would be and you've said waste as being the biggest area. Are there any other challenges you could tell us about?

Yes, so, the classic example on waste—which to a certain extent we saw when the Tylorstown tip was becoming unstable—is where the material is classified as waste and there's a need to move it urgently, but where the regulations around waste require all sorts of checks and balances about where you move it, how you get a permit, where you put the licensing, and getting those in place can take longer than the requirement to actually do the work.

Other examples: in my written evidence, we provided our guidance on how to prepare and navigate the legislation, and there's a lot of information there. But another example that we think could come up would be where you've got a protected habitat, a valuable habitat, or a protected species. Sometimes, they are there because of the instability of the habitat—it's what would have been on these scree slopes, and you get these rare bryophytes and lichens in these very rare habitats. So, stabilising them and moving them around could have a detrimental impact on that nature value, and that's something that we do need to regulate. We don't think that's likely to be as acute as the waste question, but there are other issues possibly to do with water quality, flood risk, and that sort of thing.

Thank you very much.

[Inaudible.]—with regard to planning legislation and the need for environmental impact assessments and things of that nature, or even just a need for planning permission, if it's emergency works.

Okay. Did you want to pick up on the general question?

Yes, generally we're broadly in agreement with it again, and I think Dominic's outlined the fact that the work we've been currently doing in looking at this on the collaboration side of it, and I think that is the most important thing—recognising that local authorities and the regulatory body should be working together, and making sure that where there are true emergency situations, that's what they're used for, rather than it being a view where a tip owner can try and avoid some of the requirements from the legislation. Even in emergency situations, I would add, though, that every effort should be made to comply with the legislation, but with the recognition that safety is paramount, and that would always take precedence.

Okay. Diolch yn fawr. Before I move on to the next question, can I extend a very warm welcome to colleagues from the Iraqi Council of Representatives who are joining us in the gallery? We're always very aware of the need to share experiences with other Parliaments across the world, and it's excellent that you're able to join us, and we hope very much that you have a good time and that you feel that it's worth while; I'm sure we will feel so as we share our common experiences as parliamentarians. So, croeso cynnes, a warm welcome to you. As I'm sure you've deduced, we're scrutinising legislation that's being tabled by the Welsh Government on disused mine and quarry tips in Wales and the way that we make sure that they're safe. So, croeso cynnes, nice to see you.

Okay, I just want to ask, then, about the expansion of the regime to cover non-coal tips, specifically first of all to the MRA and the HSE, because the White Paper set out the Welsh Government's intention to undertake further work before deciding whether to extend the regime to non-coal tips, and the suggestion was to include enabling powers to maybe do that at a later stage if evidence supported it, but the Bill of course now applies as it stands to both coal and non-coal tips, and I'm just wondering what your view is on that sort of change of approach.

From the MRA's point of view, we think that's right and it should apply to all tips in Wales. I think the approach that is being suggested is correct again, because of the—certainly the size and risk of coal tips is the right area to concentrate on initially, due to the geography and the size of potential coal tips in Wales, and it's proportionate that we do that, and I think there's going to be a lot of learning taken from that that then gets applied wider.

When you consider the amount of mining that has taken place across Wales, every mining operation that takes place creates some kind of waste. Some of the metal mine tips are very, very small, but I think there is a big piece of work that now needs to take place after this, where we start to categorise and look at all of the non-coal tips across Wales, with a view to then potentially saying they don't need to come into this regime or they can be categorised and then discarded from this regime, just purely on the risk basis.

Yes, I would absolutely echo that. I think it's a pragmatic, sensible approach, and as a regulator, we would always look at things like what are the nature of the risks, what are the characteristics, and it doesn't actually matter whether that was a coal activity or non-coal activity. If the characteristics are the same and the risk exists, we would always seek to regulate in the same way. I think the fact that the approach intends to categorise on risk levels and then allocate how these are dealt with—it just makes sense that they are aligned.

And you expressed support for this as well in your paper. Do you think it's a proportionate response, then, given the number of non-coal tips and their potential risk to human welfare?

Yes, we think it's proportionate. The thing for us is we're in the process of going through another iteration of surveying, looking for non-coal spoil tips, as it said in the written evidence—50 plus. So far we've not found any non-coal spoil tips that pose a greater threat than our higher risk coal spoil tips, or they would if we were not managing them, and that's important to say.

Of course, that's an important distinction, yes.

But we can't make a stronger statement than that so far, and I think that 'so far' is really important, so there could be—there could be—a non-coal spoil tip that is risky, and therefore it is right that they're included in the Bill in this way. It's right that the requirements are brought in in time, because the evidence is the coal spoil tips are the higher risk ones. Just to reassure everyone, though, we're not waiting. If we find a risky non-coal spoil tip, we will act faster based on the risk.

Sure. Okay, thank you for that. So, I'm coming back now, then, to the authority, the disused tips authority—

Excuse me, Mr Chairman, I think you've got a question on screen.

Do I? Sorry, Delyth. Thank you very much. Thank you. Delyth.

Thank you. That was very kind of you to point that out. Thank you. I wanted to check with Dominic, please. I don't dispute any of the points that any of you have just made, and I know this is a very complicated situation and it's nuanced. Dominic, you had spoken earlier about—and I agree with you on this completely—how there's a social justice motivation behind why this Bill is necessary. Would you have a concern that because of the expansion of scope and because we are now going to be—? There is a concern that lots of people have expressed to us that because of limited capacity this might mean that the high-risk tips or tips that then suddenly tip into being high risk—that there won't be as much capacity to look at those because of this increased expansion. Do you think that there may be an interplay there with the social justice motivation and the communities that are actually living under the shadow of the tips that we know pose a risk or may develop to pose a risk? Do you think that there might be a tension there in terms of the lack of capacity that might mean them being directed towards those areas, from a social justice point of view, that we know need it?

That's a really good question. Resources are finite, we have to make choices, and so, yes, it is possible that there could be a tension, but the provisions in the Bill for a register, carefully categorised on the basis of risk of instability for detrimental impact of human welfare—I would say that that is going to control that risk so that the resources will almost certainly be directed to the appropriate place, where the risk to human welfare is higher. We were interested in that the requirement to look at non-coal spoil tips will extend the view pan Wales. So, if you keep only to coal spoil tips, which are mainly in the south Wales Valleys, there's possibly another kind of risk, which is that parts of Wales miss out on the benefits of the Bill.

So, for us, provided we can manage the expectations of the pace and volume of extra regulatory advice we might need to give, and provided that we can get the long-term maintenance costs for the tips that are in our care, which we do think would be quite considerable—I know those are big provisos—the provisions in the Bill for this register and the categorisation based on risk I think will control that risk of a dilution of the social justice element.

Thank you for that. That's incredibly helpful, but just to check that without those provisos, so if that extra resource and support isn't provided, then that tension could become very problematic.

Yes. If we don't have the resources, it will be very difficult to deliver the Bill. So, the resources that are currently available are really good, the capital investment is great, and we're benefiting from that immensely and very grateful for it. As is often the case, it's the long-term revenue maintenance costs that could be the challenging thing.

Thank you very much.

Thank you. Carl wanted to come in.

Forgive me, sorry.

Delyth, if I could just come in on that, I suppose my response on that is that the skill sets that are required to do the initial search and view on what would be the non-coal tips are perhaps different from the resource on the ground, the tip inspectors, where there is that, probably, shortage of tip inspectors. So, I think to do the initial work on the categorisation of them, that can be done in tandem, which is why bringing the non-coal tips in after the coal tips is probably the right view on that, and then we can get a view on how this would then apply across all of the non-coal tip estate, because I think it would probably reduce the amount of inspections that are then required on the ground.

Thank you.

So, just coming back to where I started, really, this session about the potential risk of overlap between your respective organisations and the disused tips authority, can you just maybe elaborate a little bit about how you see your interaction with the authority? I know we touched on the risk earlier, but is there something in the legislation that helps you envisage how that can be managed, or do we need greater clarity in the Bill? Is there anything in that space that you want to tell us about?

I'm quite happy to kick off on that one. As regulators, we are very familiar with working with other regulators and other organisations, so as a basic principle, it's something we're well versed in. The nature of the relationship can change in that; we've already heard from colleagues who are both regulators and duty holders, tip owners and their regulators. As I mentioned earlier, there is also scope, as activity changes on a disused tip, for example for remediation or even potentially a rewashing and other things being extracted—it moves from one set of legislation back into mines and quarries legislation, or it could even come under construction legislation. We would understand how to regulate that and work with others. I think some of the other areas as well are that, working with the authority, we could be, at one point, a provider of advice and support. If the authority are actually undertaking work themselves, they again become a duty holder from our point of view, which is manageable and understandable, but it's something we would just have to be mindful of, as we take that forward.

Overall, it doesn’t give us cause for concern. As I said, we are very familiar with those sorts of working relationships across a number of regulators and duty holders. So, I think it's workable, it's all about that dialogue and actually establishing those terms of engagement, if you like.

Okay, thank you. Carl.

As I mentioned earlier, I would just see ourselves transitioning and working for the new supervisory authority and providing expert advice to them as they require. And as regards our own tips, I don’t think this new legislation is going to be any more onerous than what we currently work under.

Okay. Dominic.

Yes, very similar, so, obviously, we'll be a major and willing landowner, willing participants, in the efforts on it, helping everyone to learn from our practical experience, and a supportive, collaborative fellow regulator of the environment. The choice to focus the Bill on human welfare and tip instability does actually reduce the risk of overlap of duties when it comes to environmental regulation. I think it really helps to clarify inspection regimes. At the moment, there's occasional confusion as to whether it's the local authority who are inspecting our tips or us. We might have to look at an evolution of our relationship with the Mining Remediation Authority as we go into this, but we currently contract the Mining Remediation Authority to do tip inspections for lots of our tips. That relationship may need to change, but that's fine, the Bill in that regard is helpful in its clarity and we'll continue to work together, no doubt.

You've reminded me there, actually, because we have a panel from local authorities coming in next—. Do you see that dynamic changing, because there is a question as to whether we just empower local authorities or others to do what the authority will be charged with doing, the new disused coal tips authority? Are we just creating something that we could actually address elsewhere in the system?

I suppose the problem with that is that then, like under the old legislation, it becomes potentially an inconsistent approach. The beauty of having one body that oversees it all is that you do get that consistency and you do get that single level of categorisation and that single level of understanding of risk, and, to a degree, some of the funding that then comes through Welsh Government and gets spread across via the supervisory body to local authorities.

Yes.

Like I say, we work really well with local authorities, but we think having a single national body would be helpful. Our tips, our duties go right across some local authority boundaries.

Yes, sure. And we can pursue that with the local authorities themselves, yes. Okay. Diolch.

I suppose it just comes down to the cost-effective way that that is set up and then managed.

Indeed. There is all that, yes. You're right. Okay. Joyce.

Good morning. I want to explore the meaning of 'disused tip'. The MRA and HSE—in your papers, you highlight potential problems with the meaning of ‘tip’ in section 81. Do you want to expand on that? And do you think the meaning of ‘tip’ in section 81 needs to be amended to ensure clarity, avoiding any unintended consequences?

I'm quite happy to start on that one. It was interesting, listening in to your earlier session, that this question was raised, because I think we'd spotted that, under mines and quarries legislation, there is a very particular definition or there are examples given that include more broadly than just 'tips'; it includes lagoons, stockpiles et cetera, and, as I said, I heard this explained earlier in your earlier session. From our point of view, we’re always looking for what provides the most clarity for those that have duties, to avoid ambiguity and so on. I think, if the legal explanation says that the definition in the Bill doesn’t exclude those things—it’s silent on whether it includes or excludes—it is the sort of thing that could be addressed through supporting guidance. But I would look at it, from a regulatory point of view, as making sure there is some level of consistency there, so that those with duties do actually understand them.

It came about through some discussions that we had together on which would be the best meaning to take: would it be the quarries or would it be the mines and quarries Act? I think for us it’s important, as Rick’s pointed out, that there is clarity through the guidance. And the other area where we did potentially point out there could be issues is where you get an active mining operation that then is going to become disused, and then, potentially, when that comes in, that cross between active legislation and then this disused legislation and vice-versa, as Rick’s pointed out, if the tip is then going to go from being a disused tip into something that then is in active operation. It's that area of clarity I think we need to make sure in the guidance.

Okay. That’s interesting. So, NRW, in your evidence, you report inconsistency in the application of the existing definition of ‘tips’. Do you want to clarify whether that was due to interpretation or misinterpretation of the legal definition, or is there another reason? We want to avoid that, if we can, under the new regime.

Definitely, another reason; it's a reason to do with geography. So, inconsistency—. It was a moment of confusion that arose when we were all working together to get to grips with this need to have a national list of where all these tips were when we all realised that we didn’t have, really, a strong enough central list of them. That work was done through a series of aerial surveys and it just came down to a question of a tip is very rarely a single pile of stuff; it’s got lobes. I think that was the thing; it was tip lobes. So, in the initial counting that Welsh Government colleagues did, they tended to count each individual lobe as a separate tip. So, there was a stage when it looked like we had 250 and we were saying, ‘Oh, no, we think we’ve only got 120’. We were more lumpers than splitters; it was just a question of that. How can we avoid it? The same way as we did before: we worked together, we listened to the practical experience. Again, we think the Bill’s helpful in that—the requirement for the register, the provisions it makes, the way the provisions are brought in, allows that kind of collaboration to go on.

We think, possibly, as things develop and we get the use of remote sensing, machine learning, artificial intelligence, you can layer in things, like not just the actual topography, you can start to look at where water is flowing and you can start to make decisions about what’s the best management unit, so what’s the best thing to describe as a ‘tip’ and manage that as a unit in terms of reducing or maximising the stability and reducing the risk to human welfare. That could be really helpful. But the key thing is to understand it. It is hard to define these things in the real world. We need to use the Bill, the provisions in the Bill, to help us all work together to get that definition agreed.

If I can—? You talked about water flow, as an example; there’d be others. And, of course, in an ever-changing climate at the moment that can equally change and we’re looking at clarification of what is a tip, is there sufficient flexibility to redefine? Because you quite nicely outlined geography and topography as being part of it, but you could have a new topography because it’s moved: it isn’t where the original composition was initially laid because it’s now moved because the water or land has moved underneath it as a consequence of climate change. So, would that make any difference, I suppose, is what I’m asking, or would it add another layer of inspection that you need to carry out?

That potentially drifts into the next question on the register of disused tips within the Bill. I know it’s changed from the original Law Commission’s recommendation of having a single register. I think our view on this is that we should have a single register that should cover all tips, and then at least all the information is available in one place. And then, where tips potentially can change categories, that can be recognised within that register, because, potentially, it may then go into a more serious level of need for inspection or for action on those tips.

And everything that would need to flow underneath that is adequate in this Bill.

Yes.

Yes. Thank you.

Okay, thank you, all. Well, you've touched on the register of disused tips there; I don't know if any of the other colleagues would like to say whether you're content with what's been proposed.

Yes, I think I’d also come in, because, as I understand it, the proposal in the Bill is only for those tips that are by reason of instability—

Which is different to the White Paper, of course, that was initially proposed.

Yes. From a practical point of view, you would then have a register where it is dependent on someone’s judgment that it was unstable. It could be the owner, and so on. If you’d done remediation works and that takes it back off, at what point may it come back on in the future, and so on? So, I think that may present some challenges. It may scale it and help control the extent of work, but, if you’re trying to futureproof that, being able to try and capture things as they are at the moment and work from there would have its benefits.

I think the other challenge from some of the things that we may hold registers for is if the public expect access to them as well, because you need a level of verification that the data in that register is good. That actually increases the level of duty. If all you’re saying is, ‘This is where they are’, that’s one thing; people looking at a register could be comfortable in understanding that it’s comprehensive. If you’re actually saying, ‘These are only the ones that you may be worried about’, you could have people saying, ‘Well, do I get a false sense of security because I don’t know of something that could be on the register?’, or do they also jump to the conclusion that they believe they are at risk just because something is on a register, even if it’s been remediated? So, I think, if it was pragmatic, the way forward would be to have something more comprehensive.

And I’d draw parallels with contaminated land, where it’s local authorities’ responsibility to have a contaminated land register, which then—. Is all of that documented? Is it done in a consistent way? If you have a single register, then at least all of this information is in one place. Certainly, when we pulled the current register together, that is what we found, that some things were missing, there were inconsistencies. So, we think we now have got a really good handle, certainly on the coal tip side, and I think that should be extended to other tips.

Okay. I'm just conscious we have about 20 minutes left, and I don't think we're halfway through the areas that we were hoping to cover, so we may need to just change gear somewhat. I'll invite Julie, maybe, to take us on to the next area.

Right, thank you very much. The Bill includes a requirement on the authority to monitor registered tips and enables it to carry out inspections or other monitoring activities. The Welsh Government’s plan is to issue guidance on this containing the details of the monitoring regime. Do you think that’s an appropriate approach?

So, I think it's appropriate that it should go in either guidance or secondary legislation. I think the important thing is that we must set a minimum that then must be followed.

Thank you. HSE?

Yes, I'd echo that. Putting it in guidance, it's the clarity I think is the important thing, to make sure it is there and it is followed.

Thank you. And, MRA, your view on that, but also you say in your paper that it:

'Would be clearer if the manner and minimum frequency of inspections were specified.'

Would you be content for further details of monitoring to be included in the guidance, or do you think they should be on the face of the Bill?

That's one for you, Carl.

MRA, yes.

Well, I thought I'd answered that. For me, it's just ensuring that we've got the minimum level specified, that there's sufficient, I suppose, within the legislation to ensure that that has actually happened, and, if not, then why not.

Right. Thank you. Sorry—.

So, for NRW, yes, we're in the same position on that. As I said, it will help with the current occasional confusion we have as to who's responsible for inspections between us and local authorities. Whatever the guidance says, what we'd really like it to do is to be open to technological advances we see—and MRA no doubt see this too; there are really interesting technological advances—in monitoring stability. So, the guidance has to encompass that, rather than become a constraint on bringing that in. And it's really useful, in that respect, to have the economies of scale that come from a single regime.

Right. Thank you. Much of this detail to ensure the effective application of the regime will be included in guidance issued at the discretion of Welsh Ministers. And—. Hang on, I'm going the wrong way. Do you have a view on the advantages and disadvantages of this approach?

I think the Law Commission spoke on this earlier. I think it's important that you do have guidance or secondary legislation, approved codes of practice, because, if you don't, then you potentially lead to multiple different interpretations of the law. The benefit of having guidance below the primary legislation is that, if things change, for example, and technology changes, then you're not having to change that primary legislation; it's easier to just change your codes of practice or your guidance. But I think the important thing is that you've got to have that guidance.

Thank you.

The main for us is the 'at the discretion' bit, of Welsh Ministers. The advantage we think that will give is that I think it will promote collaboration, and particularly enable us to work with the new body and the Welsh Government to resolve these potential problematic interactions with other elements of environmental regulation. The disadvantage is that it could become subject to politics, couldn't it? But we think, on balance, this is the right thing to do.

And I would agree with that. I think it is important, and there are things we have already mentioned in this session saying, 'It will need to be clarified in guidance', and, whether that's between regulators, that co-operation, I think, is essential in developing guidance. HSE, as a regulator, we have a statutory obligation to provide information. We will always generate guidance on how to comply with the law in collaboration with those that have those duties under the law, because that makes sure you've got that practical interpretation. So, keeping that duty as 'at the discretion of' to encourage that collaboration I think is quite important for this.

Thank you. So, what do you think are the risks of the Bill not placing a duty on the Welsh Government to publish guidance, or timescales?

So, we think—. Being a public servant, I have to be really careful what I say about this. Our feeling is that what could be the risk is that it becomes, somehow, politically really difficult and is not actually delivered. We think that's really unlikely, given the history of this issue in Wales, and we think that no Government would be allowed to fail to deliver on the requirements of guidance.

And I know we're straying into maybe semi-political territory here, but there is no timescale, so it could five years, it could take five months. Surely a duty gives you that certainty and that clarity, rather than, 'Potentially, we'll get it done soon.'

If I may, there is also a risk with setting a rigid timescale that, if you're trying to get everything done—and, if you want to prioritise what are the most important things to clarify, you may want those done more quickly—. If you set a timescale long enough to do everything, nothing may happen.

It works both ways.

But I think it's that collaboration. Certainly, from our point of view, if we are introducing a new requirement, we try and get guidance to an industry ahead of that requirement becoming live, because what we actually want is people to be able to comply with the requirement from the outset, rather than have to learn about it and catch up. In changing situations, we may actually have to accept that things have changed and we do need time for people to catch up.

Are you involved in developing guidance at the minute with Government in any way? 

We've been in discussions with the Welsh Government. 

I suppose the other point to make is that the Bill is strengthening a direction; we're already on this journey. We've got the coal tip safety taskforce working very well already, so it's not as if it's bringing in something and starting something that isn't happening. That may reduce that risk of the guidance not happening, because it has already been worked on.

Similarly with management plans, of course, because we have a situation where the White Paper proposed that the new authority was required to produce management plans for certain tips and support the development of plans for all tips, but the Bill makes no provision for management plans, although again, the Welsh Government intends to issue guidance. So would you say the same in that context? How important do you think management plans are, and are you confident that they will be applied as envisaged through guidance as opposed to maybe secondary legislation or something else? 

From my point of view, I think management plans can, again, be interpreted in many different ways. So I think that's why the guidance is paramount in making sure that they are specifying what's in a management plan. I think that a management plan for individual tips is very important, because it pulls together all of the relevant information to make sure that tip is kept safe, and that's why they need to be individual management plans.

As a landowner, they’re essential. Also, they're really useful for resolving that interaction with other environmental legislation. The guidance we've produced already is really all about get a plan in place so that you've thought through all the things you're going to need to do already. So we do think they are really important.

Just one point on that. I think in my mind there's a difference there. If the White Paper was proposing the authority were required to produce the management plans, whereas the people best placed to produce those management plans are those in control of the land and the activity, the owners, is it more about the oversight to make sure management plans are produced, rather than actually requiring the authority to do it?

Sure. Thank you. We'll come on to Janet.

On assessment of disused tips, the Bill places a requirement on the authority to undertake a preliminary assessment on all disused tips, followed by a full assessment. What are your views on this approach? That's to the MRA and HSE.

I'm quite happy to start on that one. I think again it comes down to the clarity of what does ‘preliminary’ mean, what's a full assessment. But in basic terms, being able to get an overview of everything preliminary to enable you to then prioritise which ones require the full assessment first. It would fit with that risk-based approach, that categorisation of tips. So I think, as long as you've got that understanding of what those different categories of assessment are—. There's also something within there about—. Given that, at the point of abandonment or disuse, there should be management plans there, it's whether those plans are getting old and in need of review. So I think enabling that prioritisation is the important part of it.

In your papers, you do suggest the Bill does not include sufficient detail. Can you expand on that? And also, with the Welsh Government intending to issue guidance on assessment, can you clarify whether you believe any additional detail should be included on the face of the Bill rather left for secondary legislation?

I think it would be appropriate putting it under secondary legislation or under guidance, because that also gives you that future flexibility as circumstances change. It gives you the ability to prioritise and keep it proportionate.

I would just echo what Rick said. There's no definition of what a preliminary investigation or assessment is, or a detailed one, and I think it's just making sure it's covered within the guidance or the secondary legislation.

The Law Commission recommended that the criteria for categorisation be set out in regulation. The Bill states the authority must publish a statement of its policy on categorisation. What's your view on that approach?

The current categorisation has now been applied consistently across all tips, which is the A, B, C, D, and the Bill swaps it around to 1, 2, 3, 4, but I think if you work on what's in the Bill, I think you could apply that consistently across tips. So, I think it's just how you apply that. So, I think it's suitable, what's within the Bill. 

We're in the same space. It's one of those things that I think will support this collaborative approach and learning together as we go along. It's a really detailed point, but we find that four categories are usually better than three. If you have three, you end up that everyone goes for the middle one. Four forces you to choose, which is usually a good thing.  

I'd echo those comments. 

But of course, if it's not in regulation—if it's a policy—then should that be subject to consultation, do you think? You've nearly said 'no'. 

Again, I come back to the fact that we've got a consistent approach now that works. Other than just changing it to a numbering system, I don't see what much more benefit you'd get from a consultation. 

Yes, maybe. We're not so bothered for ourselves, but given this thing about social justice, so many of the tips are in poor areas, possibly we need to really look at empowering disadvantaged communities to be able to have some sort of say in there. Yes, we should only consult where it's really necessary, but that social justice question might be an important consideration.

Thank you. The Bill says that you need to share information. Clearly, NRW and MRA both are subject to that in the Bill. I presume from what you said earlier that you're comfortable with that, you think that's reasonable and appropriate. It probably happens already, does it? 

Yes, subject to GDPR and FOI requirements, we do that already. 

That's straightforward enough. With sanctions, the White Paper proposed a range of enforcement powers and civil sanctions. They haven't been included in the Bill, with the explanatory memorandum stating it would make the regime overly bureaucratic and unwieldy, and be difficult for the authority to administer. Does the Bill provide the authority with sufficiently strong powers do you think to ensure coal tip safety? And if it doesn't, how is that addressed, do you think?

In our opinion, we think it does. I think powers of entry is going to be the big one to ensure that people can get on the land and inspect them. I think there perhaps needs to be some clarity on what potential fines could be imposed and, again, whether that comes in as part of the guidance or part of the legislation. But I think landowners need to understand what implications there could be if they do not comply with it. 

The strength of those provisions, yes. We do think that civil sanctions in many areas of environmental regulation are really useful, and we would say, if it's possible, don't close them down as an option if we find they're needed later. So, civil sanctions I think are worth considering. 

And again, as a parallel, health and safety legislation sets out the powers that the enforcing authority has and the penalties of non-compliance. I think that is really important for dutyholders to understand the severity, because that underlines how seriously the law takes the offences that could be committed of people not complying. 

Sure. Excellent. Thank you. Back to you, Janet. 

The White Paper identified a lack of specialist skills to support the new regime, which the explanatory memorandum states the establishment of the authority will help to address. How much of a risk does it pose, having this lack of skilled personnel, to the effective implementation of this Bill?

Carl, you touched on this briefly earlier. 

Through our experience of where we've been trying to recruit into these areas, it is challenging, and I think local authorities would probably echo that as well because of the lack of skills and loss of skills. What we found is that being able to bring more junior staff in and train them to the requirements has for worked for us, and we are talking with the Welsh Government at the moment around how do we set up potential apprenticeship-type programmes that would help support this for our next future generation of tip inspectors, and people that would come forward into this. The benefit of that is training Welsh people to undertake jobs that would be in Wales. 

I think the other side of this is there are skills in the wider communities around geology and civil engineering, and things such as that, where potentially it's making these roles attractive to people that would want to come into them, and to train them up, on the knowledge that they could move into wider roles as well. So, very much conversations with the WLGA, the universities at the moment, and then, potentially, private companies as well, as to what would an apprenticeship scheme potentially look like. But I think, initially, it may be a slow start, and then we've got to build for the future.

I second all that. The only thing I'd add is that Wales must be an international centre of excellence on how to manage coal tips. There will be an opportunity to attract interest from people coming in from abroad to help out, their expertise, and filter the expertise into Wales.

Yes, the same experience, and I would agree with those comments.

To the MRA only now: in your paper, you suggest a lack of knowledge by private landowners as a potential barrier to implementation. Can you expand on what you mean by this? We know what 'private landowners' means, but how can this be addressed?

In our interaction with landowners on the tips we've been inspecting, there's a vast array of different knowledge—some are fully aware and some aren't. So, I think it's very much guidance, consultation with private landowners as we start to implement the Bill and the legislation—what are the expectations of them, going forwards, making sure that we're writing to them, we have the consultations and everything in place. It's really ensuring they understand their responsibilities and the implications, which we spoke about earlier, of not complying with this legislation.

Thank you.

Thank you. I was panicking earlier that we weren't going to cover all our bases—I think we've done pretty well, actually. Is there anything that you feel that we haven't asked you about that you'd like to share with us? Any thoughts or any other areas that we haven't referred to? Dominic.

I think you scrutinised our evidence very well—thank you. It's just the point about the interaction between the new authority and the local resilience forums—

Yes, okay. We touched on it earlier, but was there anything in particular that you felt—

No, just that we're a category 1 responder, the MRA has become a category 2 responder under the Civil Contingencies Act 2004. I think it's probably not a matter for the Bill, but, as it goes forward, I think it's definitely worth considering the new authority being a category 2 responder, and, at very least, working out how the new authority collaborates with local resilience forums, just in case there is a serious incident.

Of course. Yes, you're right. That's something we haven't touched on. 

The only thing from me: I would very much like to give the invite, if the committee would like to come out onto a tip inspection, to see how we do this on the ground, then we'd be more than happy to facilitate that.

I'm sure Members would be very interested. We'll do our best to fit it in to our schedule, but certainly it's something that we can consider, and we're very grateful for that offer.

Oh, I have another question—Delyth. Sorry, I only see one person behind you. Delyth. It's on my laptop.

Diolch. It is something that, at present, wouldn't be in the scope of the Bill, and I just wanted to ask whether you think that it should be looked at in the scope of the Bill. There have been concerns raised with us as a committee in the past about how, in the future, because at the moment remediating coal tips is something that can—. Sometimes, private companies will fund the remediation of coal tips through extracting coal from the tips, and selling that. Concerns have been raised with us about whether that in itself can destabilise tips, or whether that can be a contributory factor. Do you think that that is something that should—? Has it been a missed opportunity not to include that more specifically in the Bill? I'm not asking about the rights or wrongs of that; I'm asking specifically in the context of making sure that tips aren't destabilised.

Any operation on a tip needs to be carefully considered from a public safety point of view, and certainly, on disused tips as regards the location, it's critical, because many of the tips, as you know, are sitting high up on the hillsides, potentially with communities below. Many of the discussions we've had about removing tips are around how do you do it safely, for example, without causing a bigger issue than what you're potentially trying to solve. I think the planning legislation is very clear on tip washing and those sorts of things, so I think there's adequate provision in that. And then, if a tip is going to be reworked, it potentially comes into other legislation, from an active point of view—either the quarries or CDM-type legislation. So, I think there's sufficient already out there to be able to cover this, in my view.

I'd agree. Because if you start extracting, it comes back under mines and quarries legislation. So, that regulatory framework exists from both directions.

Excellent. Can I thank the three of you for your time this morning? Excuse the pun, but we've been mining a very reach seam of evidence, and we'll certainly put it to good use. We're very grateful to you for your presence. Diolch yn fawr iawn. Thank you.

The committee will now break for 10 minutes. We'll reconvene ready to start our next session, again just 10 minutes earlier, at 11:50. So, we'll break now. Diolch yn fawr iawn. Thank you.

Good morning—bore da—just. Welcome. What are your actual roles and responsibilities, both as tip owners and in relation to your oversight role under the current coal tip safety regime?

Who wants to start? Jacqueline.

As tip owners, obviously we're landowners, and we have the roles and responsibilities as landowners to maintain and keep the land safe. There obviously is that oversight role within the Mines and Quarries (Tips) Act 1969, but there's that added responsibility, and initial roles and responsibilities there as landowners too.

What about the oversight role?

The oversight role then gives us an extension to other tips, so, those that are privately owned and also owned by other public bodies, such as Natural Resources Wales.

Okay, thanks. Anybody else? Okay. That's fine. Thanks.

Okay. Fine. I mean, we'll come later on to that blend of responsibilities and maybe how that might potentially change in the Bill, but that's just a bit of a scene setter. So, Delyth, do you want to pick up?

I wanted to ask—. So, obviously, there's a lot of work that local authorities are already undertaking, and there's a lot of work that's already happening with categorising tips, and you, as local authorities, have an oversight role. Why do you think this Bill is necessary? What would be your reasons for saying that there is a need for legislation? I was going to ask whether you think, but I'm just going to assume that you do think that there is a need.

Yes, Stephen.

Yes, I think consistency is key. We've seen inconsistency under the current legislation, and this new Bill, hopefully, will bring consistency to that. And we believe that the existing legislation is limited as regards to preventive situations. So, we think the new legislation will definitely assist with that, and bring that consistency, particularly around risk and classification. And hopefully then management plans will come later on as well.

Yes, Andrew.

Following on from Stephen's point, because, at present, unless there's a defined or an imminent risk, local authorities have limited powers. So, in terms of just making sure somebody does the regular checks, does regular maintenance, et cetera, it's very limited. And also when we’ve got to go on land, we have to serve notices, et cetera, to get access. If we want to carry out investigation works, the only way, sometimes, on a private tip on private land, that we can fully understand whether the owners are meeting their responsibilities is for us to go and have contractors carry out investigation work. To do that, we have to serve notice and go through legal procedures. Whereas this Bill, hopefully, will firm up some of that and give, if it is a local authority or the authority that's going to be created, the power, and then it will streamline it. And, hopefully, it will give them more freedom to be able to intervene in advance rather than waiting until there's an imminent risk and then being able to go on land to intervene.

Thank you. Oh, forgive me—

Well, I was going to ask, Kevin, whether you concurred.

Strongly agree with the introduction of this Bill. I think, to a degree, the mining legacy has been forgotten, and I think this Bill now brings in a structured approach to both inspections and to maintenance, and will, obviously, give the supervisory authority then the powers to be able to go in and actively maintain the tips.

Yes, okay. Delyth.

Thank you, all, for that. I'm going to ask you about how some of it is framed in the Bill, and whether you think that the definitions are right at the moment, because, obviously, we could be making recommendations about what things need to be either strengthened or clarified. So, as it's drafted in the Bill, the coal tip safety regime is based on the protection of human welfare. That's defined in section 82. Do you think that that is sufficiently clear, please?

Yes, I think the human welfare list, it does seem appropriate. You could continue to discuss, and there are nuances around the list, but I think, as it stands, yes, it is appropriate. Whether you need a catch-all description at the end, it's difficult to say, but, certainly, it’s comprehensive as it stands.

I believe, in our written evidence, we did ask about the term 'serious' within the descriptions of it, and about whether there could be some discussion, at a time when you're challenging things or reviewing decisions made by the authority, about what is the term 'serious'. So, it's useful just to review and discuss that. There must have been conversations about the wording. If that's appropriate, then great. It's just that we don't want there to be any ambiguity, in a situation where you're discussing something that could occur or has happened, as to whether it is serious. It's whether that can be further clarified within the guidance that's to follow. But those are the thoughts around that.

Could I come back in? That's very helpful. That's exactly the kind of thing that we are keen to look at. With that potential ambiguity about the word 'serious' and where the threshold is, would any other members of the panel share that potential concern? And again, when I'm saying 'concern', is that something that you think we should be recommending needs to be further strengthened or clarified?

Stephen.

I was going to back to the human welfare aspect, really.

Yes, of course.

I think, from a public perception, that that is an important definition. And we’ve seen tensions between the work we’ve had to carry out, emergency works, like on Tylorstown in particular—which, as the definition is broader—where we had the potential of a main sewer being damaged or potential major flooding. So, I think, from the public’s perception, that term ‘human welfare’ would be welcomed as a sort of primary aspect to the protection.

Can I just support what Jacqueline said around the word ‘serious’, and about the ambiguity? The reason being is, in the event that intervention is needed on a tip in the future, because it is deemed to be serious—I know perhaps we’ll cover it later on—it's how that intervention may come up against other barriers from other legislation, other current legislation. And I think it needs to be clear, because there is a point later on that I’d like to have an opportunity to make, but I think there is a failure in the Bill on one particular part.

Where the existing legislation could be a barrier is where you could end up, either through environmental, planning or other regimes, actually finding yourself in a foul position. So, it's serious, somebody intervenes, the definition of ‘serious’ and whether it was serious or not is then challenged, and then you may have carried out works or intervened and left yourself open to potential prosecution. So, how different pieces of legislation and different protections interact with the Bill is something that needs to be considered. Because we had a significant issue with that during storm Dennis with Tylorstown and I would like to take the opportunity later to explain that to the committee.

Would it make sense, Cadeirydd—? I know that Kevin has indicated he'd like to come in as well, but, Cadeirydd, would you prefer Councillor Morgan to go into that now or to come back to that later?

Well, we're coming on to that in a moment, so we'll cover that in a second. 

Right, okay. In that case, Councillor Morgan, if you could hold that for a minute, I know that Kevin—

Before I come to Kevin, we’ve just taken evidence from bodies, including the Health and Safety Executive, and they did suggest that ‘serious’ in the context of human welfare is clear, but not so much, maybe, in relation to infrastructure and other things. I don’t know whether that helps. But, Kevin, what are your thoughts on this?

Well, I agree with you, the word ‘serious’ is—. I think the definition of 'human welfare' is well set out. So, I think that is very clear and easy to understand. But, again, it’s the word ‘serious’ that concerns me, because I looked at the definition of it, and I sort of mulled it around in my head, and I don’t really know what level constitutes seriousness. So, I think that one needs to be looked at again, or even that the word is removed and replaced with something else.    

Okay, thank you. 

Thank you, Kevin. 

There we are. Diolch, Delyth. Right, we'll move on to Carolyn now then. 

Going back to that point, your paper suggests conflict with environmental, waste and planning legislation. It’s not addressed in the Bill. So, there’s an argument for a hierarchy of priorities needing to be established, particularly in the event of an emergency. So, would you elaborate on that a little bit more?

If I set out the concerns that I’ve got, and perhaps officers will come in on it. So, to give you the context, an awful lot of the Bill appears to be set towards dealing with tips as they currently are. In the event of an emergency and a slip, I’m not sure the Bill actually addresses some of the key fundamental issues we found, so, for example, the definition around waste under the definition of coal spoil, and how it’s currently treated in legislation.

So, when 60,000 tonnes of it slipped down the Tylorstown side into the river, to move that material, we needed permits, and some of the permits you’ve got to wait a statutory period of 12 to 13 weeks for. Similarly, to remove trees—and a significant number of trees came down the mountainside—. Because I know Members will have probably seen, it's been over the news, the slide, but that actually wasn’t the main slide; that was just water coming down the face of the slide. The actual slumping of the mountain, in total, was about 0.25 million tonnes in the end that had to be reprofiled, and a significant number of trees moved, et cetera, and a lot of them came into the river. So, to cut up and remove trees—some in the river, but some had slid down the hillside but were still vertical—you’ve got to have a tree licence, and you can’t have a retrospective tree licence.

So, the fact that we were carrying out emergency works, removing debris from the river, and at risk of impounding the river—. So, in the background, we had emergency plans for the possible evacuation of thousands of properties, because, in the event of the river being impounded—the river Rhondda—in effect, the material from the coal would have created a huge dam. That water would have built up, and within a matter of hours, once it started breaching the blockage, that would have cut its way through, and we would have seen an uncontrolled, massive amount of water heading down the valleys, which would have put thousands of lives at risk. So, there were emergency plans in the background that were put together. I attended meetings with the police, the fire service at a high level, the UK Government and Welsh Government were made aware and briefed, and emergency plans were put in place.

To avert anything happening, the local authority had to carry out urgent works with the full support, I have to say, of the First Minister, the Prime Minister, and everybody else. We were receiving really good support, financial support. However, when we started work, two of our officers were placed under caution of potential criminal prosecution by NRW, because we were moving waste material, using the legislation from the former mines. It is the right legislation to stop material being dug out of the ground, for example, and deposited and having all of the controls, but that legislation is not fit for purpose for removing thousands of tonnes that had just slid down the mountain.

Similarly, the fact that we couldn't have a retrospective tree licence, or that they even suggested that we needed a tree licence, when only a mile down river from this location, in storm Dennis, debris and trees built up under the bridge in Ynyshir, blocked the river and it meant that the river came out into the streets. That was very quickly cleared in the 24, 48 hours after storm Dennis, but the fact that we were removing wood and trees from this land, and from the river, also led to a potential prosecution, and our officers were placed under caution. I said at that time that it was absolutely outrageous that we were potentially facing prosecution for eliminating a serious risk.

I don't believe the Bill addresses that issue. We took a lot of advice, we worked with the Welsh Government about even using civil contingency powers to see if we could override some of the environmental protections, which is how you deem and how you handle core material in terms of tip material, et cetera, and we came up against a barrier at each opportunity. In the end, common sense prevailed and our officers were not prosecuted. But that situation should never arise again, and I'm just concerned that the Bill doesn't address those fundamentals.

The Bill is really helpful for dealing with the hundreds of tips that are out there as they are today, but in the event that we have an uncontrolled emergency, then I'm not sure that the Bill fully addresses those key issues that give power—. That's why I'm saying that, if the new authority says to the local authority, 'Well, because it is serious, there is an issue, you intervene', but actually, if the term 'serious' isn't clarified and we do intervene, we could find ourselves being prosecuted for carrying out works without planning permission, without various licences. So, I would just ask that that is really delved into and scrutinised, because never again should we be put in that position. 

No. That's very useful and very informative. 

Can I also ask you—? Regarding NRW, you're the lead flood authority, as a council. So, there was debris blocking culverts from NRW's side, I heard. So, did you have issues with them removing and keeping those clear as well?

Not in relation to the coal tips; that was a separate issue, if it's related to the culverts. In particular, the River Rhondda, which lies immediately at the base of the Tylorstown tip, if you look at aerial photographs, which we could supply, it shows that the river changed direction. It was significantly impounded where all of the material came down. But if that happened again and the new authority said, 'We've got to intervene and we need to make it safe', removing material et cetera, other legislation would say that, because you don't have a licence to remove that material, which is classed as coal tip material, you could face prosecution. 

Thank you. The Law Commission recommends that there should be exemptions to existing requirements in such circumstances. So, you agree with that, then.

As the leader has said, the Bill seems to imply pre-emergency, and as the Bill is for the protection of human welfare, if that's the primary consideration, it should be looked at that there may be exemptions, advanced exemptions for consents, et cetera, and then when you get to a point where you have the ability to look at those consents, when the state of emergency has gone, maybe then that's the time to look at it. But in those emergency situations, as the leader said, we had officers under caution and we had to act to protect human welfare. 

In Tylorstown, we've had to do it over four phases: the initial emergency response, which was in the first days, and then there were a further three phases, and phase four, in effect, was the major phase of dealing with land reclamation. So, those are more planned, and the Bill would help and assist with them because that it more of a planned intervention, but if there was a failure of a tip, the actions needed to be taken in the days and the weeks immediately after that to protect households and residents et cetera and to protect life, then I don't think there is provision in the Bill that would give sufficient powers to local authorities to carry out work without fear of prosecution through other legislation.

Yes, that's the point, isn't it? Thank you very much. Diolch yn fawr. We'll come on to Janet.

Do you consider it necessary to create a new supervisory authority to carry out functions under the Act, rather than use an existing body or a combination of bodies? And how do you anticipate local authorities will interact with the authority? Is there a risk of overlap, and if so, how will you address this?

Kevin? We need to unmute you. Can you hear us, Kevin?

Sorry, yes. Personally, I think there is a need for a separate body. I don't think using existing organisations or local authorities as a group would really deliver what the Bill is intending to do. I think putting it in a single body, you're building up an experience base, the knowledge is held within a single point. I think it's a much better way of doing it. 

I think, in terms of local authorities, it'll take a lot of pressure off local authorities, because obviously, the main focus is on the new authority to deliver the inspection regimes. But in terms of the way that local authorities would react or interact with the body, I think it'll be more the relationship that the body would have with other private owners or with NRW or the coal authority. We would just act as landowners rather than a regulatory body alongside the authority.

Do you think that the new body will have the skills that, over time, you've got, and previous regulators? Do you think we've got the skill set there required in the new body?

I think it will develop over time. As you say, the pool of skills within local authorities and other areas is quite low, and there are very few dedicated officers that undertake these roles—it tends to be more of a part-time function. I think it'll develop over time. I think it needs a bedding-in period, and once that's overcome, I think it should be a good source of knowledge relating to tip maintenance and tip safety.

Can I just come in on the last point around the staff complement? Across Wales, there isn't an abundance of engineers, so there is a concern that the new body doesn't just suck all of that knowledge and expertise out of local authorities. One of the considerations may need to be that the new body builds up over time. Because otherwise, you could have a well-resourced body that tells local authorities they should be doing x, y, and z, but we don't have the engineers to do it, because they've all left local authorities maybe to go to work for the new body that may be paying more.

I think that consideration is something we need to look at carefully, because there will need to be, over a period of time, upskilling, because if we are to deal with coal tips, it is going to be a long-term programme. In terms of training, we've built our team up in RCT since storm Dennis. But a number of times, we've had to re-advertise two and three times for a post, where we’ve been unsuccessful. I'm not sure if we do have one vacant post now, which we've advertised a number of times. What I wouldn't want is local authorities, which may only have one or two officers at best, suddenly losing them to a new body and then being told by the new body that they should be making interventions. I think all of that needs to be taken into the mix.

Yes, absolutely. It's something that we touched on with the Mining Remediation Authority earlier. Carolyn.

In your paper, you pointed out that there are no powers for the authority to delegate to local authorities. Can you clarify whether you think that the delegation of powers is needed, and why?

The detailed guidance isn't there. I think as the detailed guidance develops, it will be useful to see how the transition of powers to a new disused tip authority works. I think it's also considering the needs of the local authorities, particularly Rhondda Cynon Taf, which has and owns a considerable number of tips—that we still have powers to manage effectively our tips, rather than just relying on the powers of the new authority. So, it's how that interplay and interaction between the new authority and the local authority works and how that develops.

With some delegation, maybe we still have some powers in order to maintain our owned tips. It's also that local authorities are sometimes seen as the bodies that people go to when there are concerns in their local environment, and it's providing that degree of confidence from the local authority around how that will interact and work within the overall context of local authorities' duties and powers.

The White Paper touched on delegated responsibilities, but it didn't make its way into the Bill. It mentioned that, for category 2 tips, there could be a role for the authorities, and I think that would be important for the lower risk tips, because as Jacqueline pointed out, the public perception is that local authorities do have a role, and I think it would be important for that ability to be retained as an option. 

I guess that communication of knowing what's going on between the two bodies is really important, especially when you've got all that local knowledge as well.

I think with this potential for skills shortages, if we have got skills that potentially can't be delegated to use, it could be an issue if the authority itself doesn't have the ability to resource effectively. So, it just seems that it's an omission not to have that potential to delegate down for certain levels of tips.

Andrew, did you want to add anything?

No, I think that covers everything. It is a failure that it doesn't allow local authorities to possibly be delegated to intervene and to carry out actions. And also just to say that it is important about the local knowledge; even recent conversations we've had on some of the tips—I think it was just before Christmas or just after—it's all very well having documentation around tips, but actually, a number of the staff who have maintained, looked after, and have local knowledge on the tips, I think that's invaluable, and you can't always document that. So, I think having that interface and the relationship is going to be really key.

Thank you.

Thank you. Joyce.

Good morning. I'm going to talk about the meaning of 'disused tip'. In section 81 of the Bill, it relies on provisions set out in the pre-existing regulations. Do you consider this to be an appropriate approach, as opposed to including a stand-alone definition on the face of the Bill?

I know that other legislation uses the same approach to define 'disused tips', so it is a common approach across other legislation to use that approach. Personally, I think there should be a definition within the Bill, just for that single point of reference and to make sure that when you do reference it, you understand what it means. I think there's a chance that something could be lost in translation if it's not within the Bill.

It is a similar definition to what is in the existing legislation and other legislation. I think there will be conversations to be had, particularly as tips are reviewed under the preliminary assessment and full assessments, particularly the extent of the tips and what is actually the tip and what isn't. It's whether it's done now within the legislation or whether it's done within the guidance document, which could be more easily adjusted and updated as particular examples are brought into question and discussion with respect to the definition.

Sure. We'll come onto the guidance in a minute. We've got a few questions around that. Thank you. Delyth.

Diolch. Hi, again. I wanted to ask you about registering tips, please. The Law Commission has recommended that a comprehensive register should be set up of all disused tips, but as the Bill is drafted, it provides only for tips that pose a threat to human welfare because of instability or that could pose a threat in the event of instability, that is only they should be included in the register. The Law Commission has pointed out that there are other risks other than instability, like combustion. Are you happy with how it's drafted in the Bill, or do you think that there are some pitfalls, some other things that should have been included instead or as well as this?

Stephen.

I think we've touched on finite resources et cetera, so whether there's this comprehensive register and we move to a different type of register with the ones that pose a threat of instability, that may allow that focus to be retained on those ones that are higher risk, where if it was a fuller register, that ability, actually, then to have an active regime in place for all of those may then, if it's not in place, cause more anxiety around it rather than create less anxiety, which perhaps the Bill is trying to address. So, I think there's that potential tension between the two. Whilst I understand there are different risks outside instability, I think, like with all risk regimes, it's the focus, mainly, on the higher risks, in particular in the first instance, rather than to spread things too widely.

Okay, thank you. Diolch yn fawr. Janet.

The Bill includes a requirement on the authority to monitor registered tips and any ability to carry out inspections or other monitoring activities. The Welsh Government's intention is to issue guidance containing details on the monitoring regime detailing how often, by whom and what will be monitored. Do you think that that's an appropriate approach, and what role do you anticipate will local authorities play in the monitoring of disused tips in Wales?

Kevin, do you want to pick up on this one?

Yes, I think—sorry, I lost my train of thought there. I think the monitoring of the tips should sit solely with the new authority. Like I said, there's going to be an instance where local authorities are still going to carry on monitoring their own tips because it's part of the regime that we've adopted anyway. But I think if you start to spread that monitoring across other bodies, you'll just confuse the issue.

How do you see the interplay, then, because Andrew was making the point earlier about local knowledge contributing significantly to those processes? Do you see any role for local authority in the monitoring?

Not outside of our own tips. I personally would just like to be responsible for our own tips and not have any wider monitoring responsibilities.

Of course, you're right in differentiating between those that you own and those that you don't. I'd forgotten about that element. Anything else, Jacqueline?

I'd concur with that. Obviously, within the Bill, there's no role for local authorities to monitor. However, it would be anticipated that RCT as landowner of tips would continue with the monitoring of tips that it feels appropriate as landowner. It's unclear what the interaction would be—for example I think you raised the publication of inspection dates. Would that be the inspection date from the disused tip authority, or would the disused tip authority publish an inspection date from a local authority? So, again, we look forward to the guidance to clarify that.

The guidance. Yes, well, speaking of which, I think, Delyth, you're going to lead on this for us.

Diolch. This is something that we've been bringing up in each of the evidence sessions. One of the differences between what was proposed originally in the White Paper and the Bill as it's drafted is how much is not going to be included, even in secondary legislation now, but instead in guidance, which could be a lot weaker a provision. So, a lot of the details about how the new regime will work—as drafted, it's going to be included in guidance that will be issued at the discretion of Welsh Ministers. What would your opinion be about any advantages, any disadvantages, and thinking particularly of timescales for this development? It doesn't actually place a duty on the Welsh Government to publish this guidance, it's at the discretion of not just this Welsh Government, but all future Welsh Governments to do that, so what would your opinion be on that, please?

I think guidance offers flexibility. Obviously, with primary and secondary legislation, that ability to change that is a longer process. But, obviously, guidance wouldn't come under the sort of scrutiny that the legislation is going through now, so I think there's probably an area there that needs consideration. And obviously, the discretion and timing is probably a concern, because I would've said if any new body is being set up, that guidance would be essential to actually give you the guidance on the legislation. So, I think there could be a potential vacuum between the body coming into being and then the guidance being published, which actually informs the ability to apply the legislation. So, I think there's a definite gap there, even just to pause the time frame or have a transitional period until that guidance is in place.

I'm just going to use that term there about having a transitional period, because, coming back to the resources and the things I was saying earlier, if the Bill comes into an Act on day 1, then there's a risk of non-compliance on certain areas, so there may need to be a period of guidance until certain parameters come in where they are then enforced, where they are much more of a regime that has to be in place. But I'd just be mindful that if it was put into the Act that came in on day 1, when the Act was introduced, there is a risk of non-compliance.

In fairness, the Deputy First Minister has said that the Government is working on the guidance now. They've said that the committee would be in receipt of a draft soon, I think, the end of this month—that's tomorrow, isn't it, but in Government speak, that's probably some time in the not-too-distant future. Stephen.

Just another point on that as well, would local authorities be consulted on the development of that guidance? Because we touched on expertise et cetera—Jacqueline heads up our tips team—there's a lot of knowledge that I think would be useful for us to at least be consulted on in the development.

So, you haven't had an active involvement. Unless the WLGA might have had on a—

I've not seen sight of it.

No. Okay. Kevin, how do you respond to that, then, and also the point that Delyth was making about the tension between maybe having the flexibility that you have in guidance, but obviously without a duty in legislation to do it, then the risk is that much of it either isn't done or isn't done in a timely manner?

Yes, that's a real concern that the guidance isn't delivered in a timely manner. Because, as you say, we are going to rely heavily on it when it is introduced, and the fact that there's been no consultation on it either, with the development of this guidance, is a concern. As you say, there is a lot of knowledge in local authorities. We were heavily involved in the Law Commission report and the development of the White Paper, but there's been no other involvement, really, in terms of the development of the Bill. So, in terms of any guidance or other things that are going to be produced, we've not had any requests to take part in anything.

That's useful. We can certainly feed that back when we have the Deputy First Minister before us in March. Okay. Carolyn.

Regarding management plans now, the White Paper proposed that the new authority would be required to produce management plans for certain tips and to support the development of plans for all tips. But the Bill makes no provision for management plans, although the Welsh Government intends to issue guidance on them. So, how important do you think management plans are to the effective application of the new regime?

Yes, Jacqueline.

I think management plans will be very important to consolidate all the information on a tip, and also to outline the inspection criteria needed for it, and also to include the details of any key infrastructure, for example culverts, and how you manage that tip during periods of inclement weather, sustained rainfall. You might be looking at what trigger levels you've got with respect to doing ad hoc interim inspections and also highlighting the consistency of the inspections, so the route of an inspection, what it should take, what features it should take, including that information, and you've got a one-stop shop for it. It will link to weather information and archive information, but it would be important and I think very useful to improve tip safety management.

I guess an online plan that both authorities can access would be really helpful, wouldn’t it, as well in sharing of information and getting that local knowledge in there. Kevin, did you put your hand up?

Yes. I think Jacqueline's captured everything, really, I wanted to say. It’s important to remember that every tip is unique and everything associated with that tip is unique. And to have a single source that gathers all that historic information and all that information about the infrastructure, the key elements, the susceptible elements—it’s so important. Understanding the history of a tip and especially the recent history of a tip is so important in how you approach the management of them. I think the management plans are a key element of the legislation.

So, to you Andrew, as you’re the representative of the WLGA, it was suggested that there is a need for a planning regime that puts a responsibility on site owners to prepare an internal plan as well, which would identify who to call if movement is detected. Do we have a mapping of all owners of tips? Is that something that you were thinking about when you put that forward?

In terms of private and publicly owned tips, whether it’s NRW or local authority land, there is a much better and much more comprehensive list since storm Dennis and, to be honest and frank about it, before storm Dennis it was clearly identified across Wales that not all tips were on one register; it wasn’t all in one place. In terms of identifying the landowners, whether or not that’s been done on an all-Wales basis at present I can’t be clear about, and I probably would say that that may not be the case, unless Jacqueline can correct me. But certainly, in terms of tips we’ve identified across RCT, we’ve identified a lot of private landowners, but, again, it’s about resources versus the highest risk. So, on some sites where we’ve gone onto private land, and, as I say, we’ve got to serve notices, we liaise with landowners, we do searches et cetera, because we may want to reassure ourselves because there is a high risk of potential—. When I say it’s a high risk, it’s one of those tips that if something did happen, then the outcome of it is significant or serious. So, those are the tips we would prioritise, where we would want to go in and carry out investigation work.

But having a comprehensive list and knowing who the landowners are is very helpful, but also, as you say, having a comprehensive understanding of each tip, whoever owns it. Because even it it’s not near houses and it might be a low risk—. We were monitoring a tip just a couple of years ago, which was very close to, I think it was BT— no, sorry, it was a high-voltage substation. But in the event of a slip, if it knocks out a substation or causes interference to a substation—. For example, when storm Dennis happened and we had the slip in Tylorstown, there were high voltage cables across the hillside. You’ll see in the footage they were on poles, they were brought down. Luckily, the cables didn’t break, so they didn’t lose power, as far as I can recall, but a number of the poles were taken out and were at 45-degree angles on the hillside. So, that critical infrastructure needs to be identified as well as part of any register. So, in the event there is a slip or there is concern there could be a slip, then actually knowing that you’re potentially going to lose a phone mast, a substation or high-voltage cables et cetera—that sort of stuff needs to be recorded.

Okay. And who to call should that happen—I think that's what was said wasn't it? An internal plan that would identify who to call if movement is detected, so who owns it and who to call in an emergency should be identified. Okay. 

Thank you. Thank you very much. Janet. 

This is just for Rhondda Cynon Taf: the Bill places a requirement on the authority to undertake a preliminary assessment on all disused tips, followed by a full assessment if needed. What are your views on this approach?

Stephen first; I think it's relevant for Kevin to come in as well, if he wishes to. Stephen first.

Yes, as regards the detail around the various assessments, the explanatory memorandum supplies some more information on what they are. I think the term 'full assessment' may be confusing, because it implies just an assessment for categorisation purposes, it's not a detailed assessment of stability and risk, which is the 'full' term I'd apply. So, I think it's important for that clarity.