Consultation on the law relating to coal tips in Wales

In October 1966, a catastrophic event occurred at a Welsh colliery. The collapse of the colliery spoil tip engulfed the local junior school and a row of adjoining houses, killing 116 children and 28 adults.

A subsequent Tribunal of Inquiry lay blame for the disaster squarely on the National Coal Board (NCB). Its report spoke of “ignorance ineptitude and a failure of communications...bungling ineptitude on the part of those of who had the duty of supervising and directing”.

The disaster was due to the failure to appreciate and manage the risks of siting a colliery spoil tip on a site which was conveniently located for the colliery management, but wholly unsuitable from the point of view of geology and safety engineering.

The NCB had in fact already promptly admitted civil liability for the disaster, on the basis that the tip amounted to a “dangerous accumulation”. As landowner, the NCB was strictly liable for the consequences (i.e. liable without proof of any fault) under the common law, pursuant to what is known as the Rule in Rylands v. Fletcher.

However, neither the NCB nor any of its officials were prosecuted in the criminal courts. In those days there was no legislation on Corporate Manslaughter, and no general criminal legislation on health and safety at work.

The Health & Safety at Work Act etc 1974 (“HSWA”) which laid down and continues to provide the general framework legislation on health and safety at work in Great Britain, resulted from the subsequent work of a committee established to consider the reform of health and safety legislation.

In 1969, in response to the findings of the Tribunal of Inquiry, Parliament passed the Mines and Quarries Tips Act. This applied to all tips associated with mines and quarries, not merely colliery tips. However, while the act provided for local authority inspection of disused tips and where necessary the carrying out of remedial works on tips which pose a threat to public safety, the main focus was on the safety of tips associated with active mines.

What this means today

The UK mining industry has now almost completely ceased. While the legacy of the industry remains, the potential problems posed by the remaining tips are particularly acute in Wales, owing to local geography and geomorphology, and the fact that the climate is notably wetter than in many other parts of the UK.

While there is a very small number of tips associated with operational coal mines in Wales, there are more than 2,000 disused coal tips.

In addition to being often potentially unstable, particularly in the event of heavy rainfall, they can also cause pollution and are even subject to spontaneous combustion. As regulatory control under the 1969 Act rests with local authorities, this is highly fragmented.

There is no mechanism to assess the risks posed by Welsh coal tips in a holistic way. Regulatory intervention is discretionary, and there is no general regulatory duty placed on landowners (other than the general duty owed by employers and self-employed persons to non-employees under section 3 HSWA) to ensure the safety of disused coal tips.

Local authorities do not have power to intervene, unless there are concerns that a tip is unstable, nor do they have the powers to undertake preventive maintenance works before a tip becomes a danger.

Law Commission consultation

At the request of the Welsh Government, the Law Commission recently consulted on proposals for a new regime to govern the management of colliery tips in Wales.

This would involve the creation of a single supervisory authority to monitor all disused coal tips in the Principality.

It would compile and maintain a coal tips register, carry out inspections, and design a tip management plan.

Inspections would cover all risks, not only the risk of tip slides, but also flooding, pollution, and other risks. It would enforce and enhance safety regime would be applied to coal tips designated as high risk, and the supervisory authority would have special powers to manage and reduce the chances of significant dangerous incidents.

Following a preliminary consultation, the Law Commission is likely to produce a report with more detailed recommendations in early 2022. The detailed proposals of this will be of interest to the many organisations and individuals owning land in Wale which is occupied by disused coal tips.

The Law Commission is somewhat coy on the subject of how the financial burden of implementing the regime will be borne, stating that this is beyond its remit. Ultimately this will be a matter for political decision, given that many of the envisaged activities would appear to go well beyond the needs of ensuring basic tip safety, which currently falls within the remit of the owners and occupiers of the land. In particular the proposals envisage that they will form a framework for the longer term environmental improvement of the land in question.

However, given the current poor state of public finances, the background of the common law rules on liability for such tips, and the fact that the proposals envisage powers for the supervisory authority to order the carrying out of works and provisions for cost recovery where it carry out works, there are no prizes for guessing on whose shoulders the main financial burdens are likely to rest. In that connection it is also significant that the paper makes a number of references to the regime under Part IIA Environmental Protection Act 1990. That regime is expressed to be based on the “Polluter Pays” principle, but in practice results in liabilities being usually placed on current landowners and occupiers, given that the original “polluter” can very often no longer be “found”.

It is also of interest that the Welsh Government should be pursuing a project in an area which does not only concern environmental law, a field which is clearly devolved, but also health and safety law, which is not. However, in the light of history, it is understandable that there should be a desire to avoid repetition of a disaster such as that which occurred in Aberfan, and also to take steps to avoid other threats to wellbeing posed by an unfortunate legacy from the industrial past in Wales.