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 EWLands LCA_29_1996 (18 February 2002)
LANDS TRIBUNAL ACT 1949
COAL MINING SUBSIDENCE – landslip causing damage to land and buildings – held caused by mining subsidence – remedies – depreciation amount – blighted values – Coal Authority ordered to carry out re-grading of land. – payments in lieu for repairs to buildings – damages in respect of residual depreciation and expenditure already incurred by claimants
IN THE MATTER OF A NOTICE OF REFERENCE
BETWEEN MARY EMMA LANGLEY and others Claimants
Re: Land and properties at New Station Road
and High Street, Bolsover
Before: THE PRESIDENT
Sitting at 48/49 Chancery Lane, London WC2A 1JR
On 17-21, 30 September; 28-30 November 2001
John Wardell instructed by Kennedys for the claimants
Paul Darling QC and Giles Harrison Hall instructed by Nabarro Nathanson for the compensating authority
The following cases are referred to in this decision:
© CROWN COPYRIGHT 2002
McAreavey v Coal Authority (2000) 80 P & CR 41.
West Leigh Colliery v Tunnicliffe  AC 27.
Sporrong and Lonnoth v Sweden (1983) 5 EHRR 35.
Katikaridis v Greece (1997) EHLR 98.
Knibb v National Coal Board  1 QB 906
Ruxley Electronics and Constructions Ltd v Forsyth Laddingford Enclosures Ltd  AC 344
The following further cases were cited in argument:
Pepper v Hart  AC 593
Wolverhampton Metropolitan Borough Council v Coal Authority (LCA/156/1996, unreported)
Mining in Bolsover
The statutory provisions
"(1) Subject to and in accordance with the provisions of this part, it shall be the duty of [the Coal Authority] to take in respect of subsidence damage to any property remedial action of one or more of the kinds mentioned in subsection (2) below.
(2) The kinds of remedial action referred to in subsection (1) above are –
(a) the execution of remedial works in accordance with section 7 below;
(b) the making of payment in accordance with sections 8 or 9 below in respect of the cost of remedial works executed by some other persons;
(c) the making of a payment in accordance with section 10 or 11 below in respect of the depreciation in value of the damaged property."
"(a) the works which the Authority consider to be remedial works in relation to the damage, that is to say, such works (including works of redecoration) as are necessary in order to make good the damage, so far as it is reasonably practicable to do so, to the reasonable satisfaction of the claimant and any other person interested; and
(b) in the case of each item of those works, the amount of the cost which the Authority consider it would be reasonable for any person to incur in order to secure that the work is executed."
"(1) In any case to which this section applies the Authority may elect to make a payment equal to the amount of the depreciation in the value of the damaged property caused by the damage ('the depreciation amount') instead of executing any remedial works or making any payment in lieu.
(2) This section applies to the following cases –
(a) where the aggregate amount of the costs specified in the schedule of remedial works exceeds the depreciation amount by at least 20 per cent …"
"(3) Where in the case of any property affected by subsidence damage –
(a) remedial works have been executed; but
(b) there is a depreciation in the value of the property caused by any damage the making good of which to the reasonable satisfaction of the claimant and any other person interested was not reasonably practicable,
The Authority shall make in respect of the property a payment equal to the amount of that depreciation."
"2(1) For any purposes of section 10 or 11 of this Act, the value of the unit of property at any time shall be taken to be the amount which it might be expected to realise in the state in which it is at that time on a sale effected at that time.
(2) In the case of property comprising land or buildings the sale referred to in sub-paragraph (1) above is the sale of the fee simple in the open market and with vacant possession …
3(1) For the purposes of section 10 or 11 of this Act the amount of the depreciation in the value of a unit of property caused by any subsidence damage shall be taken to be the amount by which the value of the property at the relevant time is less than what would have been its value at that time (determined in accordance with paragraph 2 above) if it had not been affected by the damage."
"(1) Except as otherwise provided by or under this Act, any question arising under this Act shall, in default of agreement, be referred to and determined by the Lands Tribunal.
(2) Where in any proceedings under this Act the question arises whether any damage to property is subsidence damage, and it is shown that the nature of the damage and the circumstances are such as to indicate that the damage may be subsidence damage, the onus shall be on the Authority to show that the damage is not subsidence damage.
(3) The tribunal, court or other person by whom any question is heard and determined under this Act may make such orders as may be necessary to give effect to its or his determinations and in particular may by order –
(a) require the Authority to carry out any obligations imposed upon them by this Act within such period as the tribunal, court or person may direct;
(b) award damages in respect of any failure of the Authority to carry out any such obligations."
Table 1: Claims and offers
High Street number
Coal Authority offer (depreciation)
cost of repairs
(a) an order that the Authority pay to each owner the cost of remedial works to their house;
(b) an order that the authority carry out a re-grading scheme (or, in the case of number 55, insert soil nails) to prevent any further ravelling of the face ;
(c) an order that the authority make a depreciation payment under section 11(3) to each owner in respect of the residual depreciation in value of the property from damage that it is not reasonably practicable to make good to their reasonable satisfaction.
High Street properties: the submissions
"The critical issue seems to me to be as to the scope of the Board's duty. Is it as Mr Grime submits, only to execute remedial works, or as Peter Gibson LJ more precisely finds, a duty to execute remedial works, as soon as reasonably practicable after the occurrence of the subsidence damage (or perhaps, in the light of section 2, as soon as was reasonably practicable after receiving the damage notice)? Or is the Board's duty, as I believe it to be, a duty either to repair, or, at their election, to pay compensation, the duty arising as soon after the receipt of the damage notice as is reasonably practicable for the Board to act? So to construe the duty does not deprive the Board of its specifically conferred right of election. My formulation acknowledges that right, but it also gives effect to the obligation to make the election within a reasonable time. If the Board elects to repair, it must repair; if it elects to make payment, it is then likewise required to make that payment. It cannot refuse to do the work and also refuse to pay compensation and then claim not to be amenable to the tribunal's powers under section 13(3).
I do not construe the words in section 13(3)(b) 'any failure … to carry out any such obligations within a reasonable time', as imposing a limited duty to repair within a reasonable time, for the breach of which damages are limited to any loss caused by delay. To me those words only define when the duty arises, not its scope. The scope of the duty is to be found in sections 1 and 2. A reasonable time is given for making the election and on taking that decision or on the expiration of the reasonable time, the Board comes under the duty to repair or, in the alternative, to pay.
Thus, in my judgment, the tribunal are empowered to award damages for the loss caused by the subsidence. The Board is not confined to a loss caused by a delay in carrying out the repairs. Nor is it confined, as the Member held, to damages which are subsidiary to the primary remedy of remedial works."
"In this case the question arises what order was necessary to give effect to the determination that the damage in dispute was subsidence damage. For the reasons which I have given it follows from that determination that if the Board had discharged its duty under the Act it would either have carried out the repairs by, say, Easter 1992 or it would have formed the opinion that the reasonable cost of repairs would have exceeded the amount of the depreciation in the value of the property caused by the damage and exercised its option under section 1(4) to pay the amount of the depreciation. Thus by, say, Easter 1992 the claimants would have had their property repaired and the depreciation made good by the repairs or they would have received the amount of the depreciation and the depreciation would have been made good by payment. It would not have been necessary to sell the property and it seems clear on the findings of facts of the Lands Tribunal that the property would not have been sold. There is certainly no finding that it was unreasonable to sell the property in circumstances in which the Board had failed to discharge its statutory obligation.
In these circumstances I am of the opinion that under section 13(3) of the Act the Lands Tribunal had jurisdiction to award damages in the amount of the depreciation because such an order was 'necessary to give effect to its determination' that the damage was caused by subsidence. By doing so it would have put the claimants in the same position in financial terms as if the Board had discharged its obligation under section 1 as it would no doubt have done if it had accepted that the damage was so caused from the outset. To my mind there is nothing in section 13(3) to limit the order which the Lands Tribunal can make in the way suggested by the Tribunal or the Board."
High Street properties: remedial works to the land
Table 2: Agreed costs of remedial works to land
|High Street number||Cost of works
High Street properties: remedial works to buildings
Table 3: Costs Summary
|High Street number||1
Re-grading on costs
Ancillary buildings demolition
Cols 5 & 6
High Street properties: depreciation
Table 4: Mr Fisher - depreciation
High Street number
Without the landslip
In present circumstances
Table 5: Mr Trussell - depreciation
|High Street number||Loss or depreciation
Table 6: Depreciation arising from damage to land
High Street number
|In existing state||After re-grading||After re-grading||After re-grading|
|After re-grading||Mr Fisher
Table 7: Values as determined
High Street number
Unblighted undamaged value £
Blighted undamaged value
High Street properties: the remedies
(a) Was the physical displacement of the garden land in the landslip subsidence damage (as defined in section 1(1))?
(b) What, if any, of the damage to the buildings referred to in the claimants' damage notices was subsidence damage?
(c) What, if any, obligations under the Act has the Authority failed to carry out?
(d) What, if any, obligations under the Act should the Authority be ordered to carry out?
(e) Should damages be awarded? If so, how much?
Table 8: Section 10(2)(a) comparison
High Street number
Depreciation + 20%
43 New Station Road
69 New Station Road
"The Engineers at this stage have no doubt that the movement will continue and will eventually result in the insured's property requiring demolition."
"The landslip is continuing and a slow progression of damage is occurring to No.69 New Station Road.
We are unable to predict how much future movement will occur or the rate of progression.
Having said this we think it most probable that No.69 New Station Road will eventually be damaged to the extent that demolition will be repaired [sc 'required'], albeit that the dwelling is presently in a safe and general serviceable condition."
"Cracking and movement to the Insured's property has gradually worsened and at this moment in time doors are now 'sticking', plaster works are beginning to deteriorate and some bedroom ceilings have partially collapsed. Mrs Dickson is currently recovering from heart problems when she was recently hospitalised and the Insured's son is now becoming increasingly concerned with regard to their health and safety whilst they remain at this particular property."
"We suspect that in due course the dwelling will become unstable, or at the very least uneconomic to restore and will require demolition. If we are wrong e.g. if [the] landslip stops now then clearly the risk of landslip recommencing is very high and consequently the property would have little, if any, market value as a dwelling."
71 New Station Road
(a) orders that the Authority should carry out remedial works to the land;
(b) orders that the Authority should make payments in lieu in respect of the costs of works to the buildings; and
(c) orders that the Authority should make payments in respect of the depreciation in value caused by damage that it is not reasonably practicable to make good.
The orders to be made
In respect of numbers 37, 39, 47, 49, 51 and 55 High Street –
(a) The Authority to make payments in respect of the costs of remedial works in accordance with a detailed schedule of works and costs to be agreed between the parties or determined by the Tribunal: see para 97;
(b) Damages to reflect residual depreciation in accordance with the relevant figures in Table 7 column 5: see para 97.
In respect of numbers 37, 39, 47, 49 and 51 High Street
(c) The Authority to carry out a scheme of re-grading, including the removal where necessary of buildings, in accordance with a scheme to be agreed between the parties or determined by the Tribunal: see para 97.
In respect of number 55 High Street:
(d) The Authority to carry out a scheme of stabilisation incorporating the use of soil nails in accordance with a scheme to be agreed between the parties or determined by the Tribunal: see para 97.
In respect of number 45 High Street:
(e) Damages to reflect depreciation in the sum of £19,000, unless the Authority opts to act in relation to number 45 on the same basis as in (a), (b) and (c) above: see para 97.
In respect of number 43 New Station Road:
(f) Damages in the sum of £10,000: see para 104.
In respect of number 69 New Station Road:
(g) Damages in the sum of £6,688: see para 117.
In respect of number 71 New Station Road:
(h) Damages in the sum of £1095: see para 121.
In respect of all other references such orders as may be appropriate to reflect the agreements reached, taking account as appropriate of my conclusions on interest (see paras 124-126).
Dated 18 February 2002
George Bartlett QC, President
Addendum to decision
Repairs to Mrs Hope's drains
Wardell Armstrong reports
43 New Station Road
71 New Station Road
Interest on New Station Road Properties
Cost of repairs
Cost of replacing greenhouses and outbuildings
The inference that the claimants would have held out for a depreciation award
the High Street claimants;
numbers 43, 69 and 71 New Station Road respectively; and
the other 10 New Station Road claimants whose claims were settled.
I will take them in turn.
Dated 7 May 2002
George Bartlett QC, President