OPINION

Fitzpatrick v The Coal Authority

This application relates to a mid-terraced dwelling at 29 Argyle Road, Saltcoats (the "property") and is said to be "in respect of the diminution in value" of the property as a result of subsidence damage. A hearing was set down for 5, 6 and 7 December to deal with the whole matter. However by agreement it was decided that the legal issues be determined as a preliminary matter. We heard debate at Edinburgh on 5 December 2000. The applicant was represented by Elizabeth McLaughlin, Advocate, instructed by Messrs Balfour & Manson, Solicitors, Edinburgh. The respondents were represented by Ronald Clancy, Advocate, instructed by Nabarro Nathanson, Solicitors, Sheffield.

In this Opinion references to statutory provisions are references to the Coal Mining (Subsidence) Act 1957 ("the 1957 Act"), unless otherwise made clear. That Act dealt with the National Coal Board and references to the "Board" are references to the are to be taken, if appropriate, to include that body and its successors, British Coal Corporation and The Coal Authority.

The debate proceeded on the basis that much of the background was agreed. It was not disputed that the property sustained physical damage as a result of mining subsidence. It was admitted that the applicant served a damage notice dated 25 May 1989, in accordance with the provisions of the 1957 Act and that by letter of 21 September 1989 the respondents' statutory predecessors, British Coal Corporation admitted liability in the following terms:- "I confirm that the Corporation are prepared to accept liability for the recent coal mining subsidence damage which falls within Section 1 of the above Act. I am advised however by the Head of Survey and Minerals that movement will not yet be complete and that for the time being it would not be advisable to carry out permanent repairs". A Notice Requiring Operations to be Executed on a Dangerous Building was served on the property in June 1990 by Cunninghame District Council. Subsequently repairs to the property were carried out by British Coal Corporation. The Corporation regarded the repairs as having been completed in 1991 and the Council's Notice was formally lifted on 10 June 1991. On 4 October 1991 agents acting for the respondents forwarded a Certificate of Satisfaction to the applicant. She did not complete this certificate. Although there was no formal admission about events thereafter it is apparent that there was correspondence between agents acting for the applicant and the corporation. A detailed list of what were alleged to be outstanding repairs was sent and considered after inspection of the property. It appears that at about the end of November 1992 the Corporation's agents had decided that no further work should be carried out.

By letter of 11 November 1994 solicitors acting for the applicant reiterated to the Corporation's claim assessors that the repairs had not been carried out to the applicant's satisfaction. A letter was produced dated 22 November 1994 to the said solicitors. This narrated that there was no record on file of the applicant's response to the Certificate of Satisfaction. The letter concluded "I would be pleased therefore if you could make known the areas of concern over the repairs. When this is received a response will be given and it may be necessary to arrange a site inspection at the property". We, of course, did not hear evidence about this letter. The respondents aver that no response was received to it and that there was no further communication until 12 May 1998 when they were advised by the applicant's solicitors that the property had been sold.

There was no real dispute that after service of the Dangerous Building Notice in June 1990 the applicant, who was the heritable proprietor of the subjects, and her brother, who lived with her, required to move to rented accommodation provided by the local authority. It appears that she has continued to live in that accommodation. In any event it is not disputed that she did not return to live in the property and that it was sold in 1997. It is averred that the sale price was £ 25,500. The applicant asserts that the property would have sold for about £ 80,000 if it had not been affected by mining subsidence damage.

It was not suggested that there had ever been any attempt to withdraw the Damage Notice of 25 May 1989 given under the 1957 Act. Apart from the current application to the Tribunal there had been no mention of any claim being presented under the Coal Mining Subsidence Act 1991("the 1991 Act"), although it may be noted for completeness that the said letter of 22 November 1994 was headed "Coal Mining Subsidence Act 1991".

The applicant's formal claim was in the following terms: "The applicant seeks compensation under Section 13 of the Coal Mining (Subsidence) Act 1957. The claim is for an amount equal to the difference in value between the proceeds of sale and the price that the property would have reached if undamaged by mining subsidence.

Alternatively the applicant seeks compensation under Section 11 of the Coal Mining Subsidence Act 1991 in respect of depreciation in the value of the property caused by mining subsidence damage."

In their Answers the respondents denied that there was any depreciation in value of the property as a result of alleged failure to rectify the damage. That failure was itself denied. The respondents made detailed reference to various provisions of the 1957 Act and the 1991 Act in support of their assertion that the applicant was not entitled to insist in a claim.

Statutory Provisions

The Coal Mining (Subsidence) Act 1950 set up a scheme to give relief to those whose dwellinghouses were effected by subsidence damage. The scheme was re-enacted in the 1957 Act. That Act was not limited to dwellinghouses. Section 1(2) sets out the obligation of the Board in the following terms: "as soon as reasonably practicable after the occurrence of any subsidence damage … the Board … shall execute such works (in this Act referred to as 'remedial works') as may be necessary to render the damaged property reasonably fit for use for the purposes for which, at the date immediately before the damage occurred, it was or might in all the circumstances reasonably have been expected to be used".

By section 1, subsections (3) and (4), the Board is given rights to elect that, instead of executing remedial works itself, it can make certain payments. For the purposes of the present case the important option is that found under section 1(4)(a) which provides: "(4) Subject to the provisions of this Act, if in the case of any property affected by subsidence damage -

  1. the reasonable cost of executing remedial works would, in the opinion of the Board, exceed the amount of the depreciation in the value of the property caused by the damage; or …

the Board may, instead of executing any works or making any payment under the foregoing provisions of this section, elect to make a payment equal to the amount mentioned in paragraph (a) of this subsection."

It can be seen that section 2 provides the machinery which triggers the Board's obligation under section 1. The Board is not required to execute any works unless the owner of the property has given notice in writing to the Board of the occurrence of the damage. It was not disputed that proper notice had been given in this case in May 1989.

Section 2(2) is in the following terms: "As soon after receiving from any person a damage notice or a request to exercise their power of election under subsection (3) of the foregoing section as is reasonably practicable … the Board shall consider whether or not to exercise their powers of election under the said subsection (3) or under sub-section (4) of the foregoing section and give notice in writing of their decision". Although it was not now possible to identify the stage at which the Board gave the consideration required by section 2(2) it was plain that they had in fact followed the route of repair.

For completeness reference should also be made to section 3. This recognises that the damage might be ongoing and gives the Board a right to serve a notice to defer execution of repairs where it appears to be probable that further subsidence damage will occur to the property. In the present case, as the correspondence made clear, a notice of deferral was served. In terms of section 3(2) it was the duty of the Board to revoke such notice as soon as [all the appropriate] works could be carried out. We were advised that because of the lapse of time no trace of this notice could now be found. However it was clear that it must have been given at some stage before November 1991 because the works had been carried out by that time and the Board would not have carried out works until the appropriate notice had been served.

In terms of section 13 of the 1957 Act "any question arising under this Act shall, in default of agreement, be referred [to the county court or Lands Tribunal in England and] - … in Scotland to the Sheriff".

"(3) The tribunal, court or sheriff 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 -

  1. require the Board to carry out any obligations imposed upon them by this Act within such period as the tribunal, court or sheriff may direct;
  2. award damages in respect of any failure of the Board to carry out any such obligations within a reasonable time".

The 1957 Act was replaced by the 1991 Act. It is not in doubt that the substantive effect of the latter was to repeal the whole of the 1957 Act: section 53 and Schedule 8. It was not disputed that the 1991 Act applied from 30 November 1991 subject to the transitional provisions set out in Schedule 7.

The scheme of the 1991 Act was broadly similar to that of the 1957 Act and it is unnecessary to deal with its provisions in detail. It appeared to be common ground that a significant change had been effected by the provisions of section 2(2)(c) of the 1991 Act. This section imposes a duty on the Corporation to take remedial action of a specified nature. "(2) The kinds of remedial action referred to in subsection (1) above are -

  1. the execution of remedial works in accordance with section 7 below;
  2. the making of payments in accordance with section 8 or 9 below in respect of the cost of remedial works executed by some other person; and
  3. the making of a payment in accordance with section 10 or 11 below in respect of the depreciation in the value of the damaged property."

It was recognised that the effect of section 2(2)(c) was to provide for a payment by way of depreciation in addition to the obligation to execute remedial works and that this was an important addition. There had been no such provision in the 1957 Act.

Section 11(3) of the 1991 Act provides: "(3) Where in the case of any property affected by subsidence damage -

  1. remedial works have been executed; but
  2. 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 Corporation shall make in respect of the property a payment equal to the amount of that depreciation".

Section 44 is in the following terms:
"(2) No question to which this section applies shall be heard and determined by any tribunal, court, or other person unless the necessary reference is made, or the necessary proceedings are instituted, before the end of whichever of the following periods last expires, namely -

  1. the period of three years beginning with the earliest date on which the Corporation are in breach of their remedial obligation; and
  2. the period allowed by section 3 above for giving a damage notice with respect to the damage (the period of six years beginning with the date given by subsection (3) of that section)".

Section 3(3) provides:
"The period allowed by this section for giving a damage notice with respect to any subsidence damage is the period of six years beginning with the first date on which any person entitled to give the notice had the knowledge required for founding a claim in respect of the damage.

  1. For the purposes of subsection (3) above, the knowledge required for founding a claim in respect of any subsidence damage is knowledge -
  2. that the damage has occurred; and
  3. that the nature of the damage and the circumstances are such as to indicate that the damage may be subsidence damage".

Section 40 reads as follows:

"40(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." In terms of section 52 this means the Lands Tribunal for Scotland.

Transitional provisions and savings are set out in Schedule 7. The relevant paragraph is paragraph 1 which provides that:

"… Part II of this Act (remedial action) shall not apply in any case where before the commencement date -

  1. a notice has been given in respect of the subsidence damage under section 2 of the 1957 Act;".

The provisions of paragraph 1(2) thus appear to exclude operation of the 1991 Act in relation to any case where notice was given under section 2 of the 1957 Act. However paragraph 1(3) provides that any such notice can be withdrawn at any time before terms of settlement are agreed. And "where such a notice or claim is so withdrawn, this Act shall apply as if it had not been given or made".

Submissions

Mr Clancy set out his submissions under seven heads. His first was that although the application on the face of it involved both the 1957 and 1991 Act, it was accurate in expressing the 1991 Act claim as an alternative. There could not be a claim under both Acts. It was accordingly necessary to determine which claim was being presented. This led to his second submission that the effect of the transitional provisions was that in the present case the only claim currently extant was that made under the 1957 Act. A proper notice in terms of section 2 of that Act had admittedly been served. It had never been withdrawn. The effect of Schedule 7, paragraph 1(1) was accordingly that the 1991 Act did not apply to the claim. In any event he submitted that any claim under the 1991 Act was now time-barred.

He then submitted - head four - that although the applicant's claim had to be treated as one falling under the 1957 Act, it was clear that proceedings before the Tribunal were incompetent. Section 13(1) provided for disputes in Scotland to be determined by the Sheriff.

The fifth submission was that, in any event, claims under either Act for depreciation could not succeed in the circumstances of the present case because the applicant was not now the owner of the property. The 1957 Act, by section 1(7)(c) made provision for application of the Second Schedule to the Act for the purpose of determining "the persons who are to receive any payments made under subsection (3), (4) or (5) of this section". Schedule Two, paragraph 4 provided: "Subject to the provisions of this Act, a payment under subsection (4) of section one of this Act shall be made to the person who is for the time being the owner of the property in question". Mr Clancy initially submitted that the expression "for the time being" quite clearly required to be tested by reference to the time of the application. Section 15(1) of the 1991 Act was in similar terms. Mr Clancy supported his submission on this head by reference to some material relating to an English case Blake v The Coal Authority in which the Final Order of the Lands Tribunal was made on 6 September 2000. In that case the subjects had been sold before the date of the application to the Tribunal. After attempts to conjoin the current owners as parties to the claim it was ultimately conceded that any entitlement in respect of the property would not be that of the claimants but that of the current owner of the land. The claim was accordingly dismissed without reasons.

The respondents' sixth head of submission was that the scheme of the 1957 Act was to impose a duty to carry out repairs. The Board was entitled to elect to compensate instead of carrying out repairs. Mr Clancy emphasised the words "may", "instead" and "elect", where they appeared in section 1(4), stressing that the scheme was to give a power to the Board to elect to make a payment instead of executing any works. They had not done so. They had in fact carried out repairs. The 1957 Act simply did not make provision for payment of depreciation where the Board decided to carry out repairs.

Mr Clancy's seventh and final point was a related one based on lack of specification. There was no attempt to give any notice of defects in repairs and no claim based on alleged inadequacy of specific repairs. The claim was limited to one for diminution in value of the property as a result of subsidence damage. No alternative basis of claim was open on the pleadings.

In response Miss McLaughlin accepted that it would be necessary to decide which claim was being presented for decision. She laid some stress on the difficulties faced by the applicant, as an 82 year old woman, in making the decision as to which claim should be advanced but went on to say that, in order to stop the running of the time bar under the 1991 Act it had been thought necessary to raise the application before us. It had been recognised that the Tribunal did not have jurisdiction under the 1957 Act although Miss McLaughlin contended that, by their actings, the respondents had demonstrated an agreement to submit to jurisdiction of the Tribunal within the meaning of the words "in default of agreement" as used in section 13(1). In essence, the applicant's position was that she wished to cover both alternatives until either the respondent or the Tribunal gave clear guidance as to which should apply. It now appeared that the case should be dealt with under the 1957 Act and the 1991 Act was really to be viewed as presented on an esto basis. Miss McLaughlin recognised that an alternative course would have been to have the 1991 Act procedure sisted and to have proceeded with a claim under the 1957 Act in the Sheriff Court.

In relation to the 1991 Act and the plea of time bar, she submitted that no proper notice had been given of an intention to take this plea. She accepted that Mr Clancy had given informal notice of his arguments the preceding day. She submitted that the relevant period for present purposes was that provided by section 44(2)(a). In other words the period of three years beginning with the earliest date on which the Corporation were in breach of their remedial obligation. This period did not begin to run until a date when the applicant was properly made aware that the Board refused to complete proper repairs. There had not been time to carry out enquiries to enable the date to be established. Miss McLaughlin sought adjournment to allow such enquiries to be undertaken. Because of the lack of time she had been unable to consider fully the matter of time bar.

Miss McLaughlin disputed the contention that the provision (in paragraph 4 of the Second Schedule to the 1957 Act) "for the time being" pointed to the date of payment. She contended that it was clear as a matter of common sense that the relevant time was the date at which the obligation to make the payment arose. She submitted that the purpose of the scheme was to pay the person who was owner at the time the subsidence was discovered. Any other contention would be impractical and impossible to operate fairly. An owner of damaged property would have to sell it in damaged condition but would receive no compensation. The matter was further complicated by the risk of further subsidence. It would be unfair to compel an owner of damaged property to remain as owner indefinitely. She pointed out that the decision in Blake was based on a concession. She found support for her argument on this matter by reference to McAreavey v Coal Authority, referred to further below. In that case the property had been sold before the application to the Tribunal was made but no point had been taken based on that.

Miss McLaughlin contended that it was also relevant to have regard to the provisions of paragraphs 5 and 6 of the Second Schedule which made special provision for payment where property was subject to a mortgage. The relevant time for the purposes of that paragraph was plainly "immediately after the damage occurred". It would be illogical if a different time was required under paragraph 4. Taking all three paragraphs together the time was obviously the time when damage was first discovered.

In relation to the contention that as the Board had not elected to compensate for depreciation in value there was no basis for a claim now being made by the applicant in respect of such depreciation, Miss McLaughlin referred to the provisions of section 13(3). This gave a general power to award damages. She relied heavily on the decision of the majority of the Court of Appeal in the case of McAreavey v Coal Authority, She was content to present this on the basis of the short case summary at 1999 EGCS 105. However, she had been furnished with a copy of the draft judgements by Mr Clancy and made these available to us. (We understood from Mr Clancy that although these judgments had been made available to those instructing him in draft form the final judgments were in the same terms. In light of this assurance we did not consider it necessary to take steps to obtain copies of the judgments as delivered.) Miss McLaughlin took from the summary that section 13(3) gave the Tribunal power to "require the respondent to carry out repairs; or (b) to award damages in certain circumstances. The Tribunal accordingly had the jurisdiction to award damages in the amount of the depreciated value. By doing so it would have put the claimants in the same position in financial terms as if the respondent had discharged its obligation under section 1 of the Act."

Although Miss McLaughlin did not, in terms, deal with Mr Clancy's submission that no claim was open under section 1(4), she made no attempt to justify her claim as falling under that section. Nothing in the written statement of claim suggested that it was based on any express right under the Act.

In response Mr Clancy amplified his submissions on certain aspects. In relation to the expression "for the time being" he submitted that the expression would have been unnecessary if it indicated the date when the obligation arose. Plainly it referred to the date of payment. If someone was selling a house the price would reflect the fact that the purchaser was to be paid for the damage. He submitted that the provisions of paragraphs 5 and 6 were intended to deal with very specific cases and could not be prayed in aid as an explanation of paragraph 4. There was nothing in the Act to support the view that there was any scheme to compensate the owner at the time the damage occurred. The obligation was to carry out work of repair.

Further he submitted that Miss McLaughlin's repeated reference to claims for damages or compensation reflected a problem which lay at the heart of the claim. What the owner of damaged property was entitled to under the terms of the 1957 Act was something which had to be found within the Act. The primary obligation was to repair. A question might arise as to whether proper repairs had been carried out. Once the Board had decided to carry out repairs they were required to complete such repairs. Accordingly there could be no dispute under section 1(4) where they had not elected to proceed under that provision.

He submitted that adequate notice of the time bar point had been given. It was not disputed that he had discussed it with Miss McLaughlin the preceding day. There was a general principle that where time bar was properly put in issue by respondents, the obligation was on the pursuer to demonstrate that the claim was timeous: McLaren v Strathclyde Regional Council; Nimmo v BRB. It appeared that the argument in substance was that the applicant would have six years from the period when it was realised that no repairs would be carried out. However that could not be correct having regard to the provisions of section 3(3).

The decision in the McAreavey case could be distinguished on its facts. The substantive issue there was whether or not the particular damage was subsidence damage. The Coal Authority had never accepted responsibility to repair that damage. The parties had been in dispute over this at the stage when the subjects were sold. By the time of the hearing before the Tribunal the subjects had in fact been demolished. There could be no question of repairs. Although he submitted that the respondents' position was to support the minority decision in that case, he contended that, in any event, the decision did not have any direct bearing on the present.

Decision

We are satisfied that the only claim open to the applicant at present is that under the 1957 Act. Notice of claim was duly given under that Act. It has never been withdrawn. Paragraph 1 of Schedule 7 to the 1991 Act provides expressly that the remedial provisions of that Act "shall not apply" in such a case.

It is not disputed that we have no jurisdiction to hear a dispute under the 1957 Act except by agreement of parties: section 13(3) of that Act. It is plain that there is, in fact, no agreement by the respondents. We think it equally plain that this is a sterile procedural point without substantive merit. We pointed out that as the 1991 Act gave the Lands Tribunal for Scotland jurisdiction to deal with these issues in cases arising under that Act, it was obvious that Parliament regarded the Tribunal as being well placed to deal with such matters. Had the Lands Tribunal for Scotland been in existence in 1957 there is no reason to think that it would not have been accorded jurisdiction at that time. We explained to parties that although we had no jurisdiction under the 1957 Act we had a wide power under the terms of section 1(5) of the Lands Tribunal Act 1949 to act as arbiters, of consent. It would have been possible for us to hear all aspects of this case by agreement. We understood that the respondents' refusal to agree was based in some way on the applicant's delay in presenting the case. This, it was said, had created difficulties for them in carrying out full investigation. It was implicit that they now wished to maximise the difficulties for the applicant. It would not be helpful for us to comment further. It is clear that we cannot act where we have no jurisdiction.

A reference of consent under the 1949 Act normally requires a formal written reference to determine precisely what is being referred. Where the issues are fully set out in written pleadings we would be prepared to proceed on the basis of an informal reference made in open court. However we consider that except in very special circumstances it would not be appropriate to treat such a reference as arising by inference only. Had the present claim been based solely on the 1957 Act the failure of the respondents to take the point at an earlier stage might have allowed an inference to be drawn that they had consented to the Tribunal dealing with the matter. However the present pleadings are not clear. We consider the submission on competency must be sustained.

As we have held that the only claim which can be presented at present is that under the 1957 Act and that we do not have jurisdiction to deal with such claim, this application must be dismissed. It was accepted that there was no relevant time bar provided by that Act where notice had been given timeously in terms of section 2(1). If the claimant can formulate a relevant claim on the whole evidence available, it may be possible now to present such claim in the Sheriff Court. It follows that it is unnecessary and may be inappropriate for us to express any conclusions on the other matters argued before us. However, in deference to the arguments submitted we think it appropriate to give some indication of our views.

The submissions we heard in relation to time bar were directed at the 1991 Act. They were based on the application of section 44(2) of that Act to the present claim. We are satisfied that this Act is not applicable to any claim currently open to the applicant. However we consider that two separate issues of time could arise under the 1991 Act. Section 44 provides that no question arising under the Act as to whether the Corporation are in breach of their remedial obligation can be heard unless the application to the Tribunal or Court is made within three years "beginning with the earliest date on which the Corporation are in breach of their remedial obligation" or the period allowed by section 3 for giving a damage notice. The first question is, accordingly, to consider what time constraints arise in relation to the remedial obligation as such. We did not hear full submission on the formal requirements of a claim under the 1991 Act. It was not disputed that there had been no attempt to proceed under that Act until the lodging of the present application to the Tribunal. We have some doubt as to how an application could now proceed under the 1991 Act. If the Notice was withdrawn, the 1991 Act is to apply "as if it had not been given or made": Schedule 7, paragraph 1(3) of that Act. We were not addressed on the question of how the provisions of the 1991 Act would apply on withdrawal of the Notice. We observe, however, that section 3 provides that the Corporation shall not be required to take any remedial action unless the owner has given the required notice. The "required notice" is defined in section 3(2). The period allowed for notice is the period of six years beginning with the first date on which [the applicant] had the knowledge required for founding a claim in respect of the damage.

Even if it is possible to argue that the notice of 1989, once withdrawn, cannot be referred to for any purpose whatever, it may be difficult to show that the first date on which the applicant had the knowledge requisite for founding a claim was a date later than the date of that notice. In any event, the evidence of her disputing the adequacy of repairs in 1991 might be thought to demonstrate adequate knowledge of the matters set out in section 3(4). Miss McLaughlin's submission that the relevant date for the purposes of section 44 was the date when the applicant realised that the Board was not to carry out further repairs would, we think, not be relevant for the purposes of section 3. That section looks at the machinery triggering a liability to take remedial action, not to the stage of a claim for failure to take adequate action.

Whatever the complications of applying the 1991 Act to a case where the initial procedures were in fact carried out under the 1957 Act, any claim presented under section 44 of the 1991 Act would require to identify the circumstances in which a remedial obligation arose. Once that was identified the question of time bar under section 44 would have to be addressed. We understood the argument in respect of that section to be based on the proposition that during the period when the Board was purporting to carry out repairs it was not in breach of any remedial obligation. The breach did not arise until a stage when it was apparent that it would not carry out any more repairs as requested. Although the present pleadings suggest that it was "in or around November 1992" that the respondens declined to carry out further work on the property, this is not said explicitly. The letter to which we have referred above dated 22 November 1994 shows that the respondents had not closed their minds to further work at that stage. Correspondence continued in July 1995. If, as was suggested in debate, the applicant sold the property because she realised that the respondents would not implement their obligation, it would appear that the three year period would start to run prior to the date of sale. This was, apparently, in 1997.

If the applicant was to take steps to withdraw the Notice and attempt to proceed under the 1991 Act we should have to consider the whole pleadings at that stage to determine the issue of time bar. It will be obvious from the above that we consider that the applicant faces certain difficulties.

Although the parties examined the remaining three issues as separate heads of agreement we consider that they cannot properly be dealt with in isolation. It is necessary to see precisely what question is being referred. Mr Clancy pointed out that the claim as presented was for depreciation caused by mining subsidence damage. There was no other basis upon which the claim could proceed. Miss McLaughlin confirmed that that was indeed the applicant's position. Before looking further at the submissions based on the Board's right to elect to make a payment based on depreciation and the submission based on identification of time of entitlement, we think it appropriate to look again at the general scheme of the Act.

In our view it is plain that the scheme of the Act is not based on any liability the Board may have for causing subsidence. In other words the Act is not based on fault, on liability for interference with support, or on any direct liability arising from the terms of other statutory provisions such as the Coal Industry Act 1975. If a property owner can establish positively who was responsible for damage done to the property, a claim under one, or perhaps all of these heads may be open. Section 6(1) makes provision to avoid double remedies and to force a party to decide whether to proceed under the 1957 Act or to seek damages or compensation under any ground of liability arising apart from the Act. Sudden surface subsidence can be due to the effects of old workings and proprietors obviously face difficulties in seeking to attribute blame. The 1957 Act provides a scheme based on repair and gives the affected parties the benefit of a presumption that damage of a certain type is attributable to mining subsidence. It is important to give due weight to the way in which the primary liability of the Board under the Act is formulated in section 1(2). The duty is "to execute such works … as may be necessary to render the damaged property reasonably fit for use for the purposes for which, at the date immediately before the damage occurred, it was or might in all the circumstances reasonably have been expected to be used". It is clear that this was not intended to be an obligation to make full restoration. There is no provision for consequential loss. There is no provision requiring full restitution.

It follows from this that there is no basis for interpreting the statutory scheme by reference to any implication of an obligation to make full restitution. We cannot assume that the intention of Parliament was that an applicant should be put into the state he or she would have been had there been no subsidence. We find support for these views in dicta of Lord Justice Peter Gibson in the McAreavey case: "Parliament by the 1957 Act gave a limited remedy which required the Board to effect the remedial works, subject to its rights of election, but which conferred on the claimant the significant advantage of section 13(2) in shifting the burden of proof in relation to what damage was subsidence damage. It did not by that Act give a general right to damages". This dictum was, of course, made in the context of a minority decision but it is consistent with the observations of the other judges on the point. The Act plainly does not give a general right to damages for loss caused by mining subsidence.

The first matter to be identified in a reference under section 13 is the question which is said to arise under the Act. The present application could only have proceeded if, under the Act a question properly arose as to whether the applicant was entitled to be paid the difference in value between the proceeds of sale in 1997 of a house which had been wholly or partly repaired and the price that the property would have fetched at that time if undamaged by mining subsidence. There is nothing in the pleadings to suggest that this was put forward solely as a measure of damages based on an answer to some antecedent question and no attempt was made to formulate any such alternative approach. No attempt was made to base the claim on any express provision of the 1957 Act such as section 1(4).

In our view a proper analysis of the Act means that damages can only be assessed by reference to the Board's breach of duty under the Act. The primary duty is to carry out remedial works. It is only where the cost of repairs would exceed the amount of depreciation - as assessed for the purposes of section 1(4) - that the Board is given the choice. We were not addressed on the detailed procedural provisions of section 1(4). However it appears from the Proviso that the Board would not be able to exercise the option except in consultation with the local housing authority. We note, too, that section 1(7) is relevant not only for determination of persons to whom payment is to be made under section 1(4) but also because it determines how the amount of depreciation in value is to be assessed. In terms of Schedule 2 depreciation of damage is to be calculated by reference to the time of "the occurrence of the damage". Depreciation calculated by reference to difference in values at that time would not be appropriate in a situation where the Board had in fact carried out repairs thereafter even if the Tribunal ultimately held these to be insufficient. These considerations support our view that there would be no obligation on the Board to make a payment under section 1(4) if they had in fact elected to carry out repairs. Similarly subsection (7) would not apply.

We are satisfied that Mr Clancy is well founded in his submission that the Act does not give any direct right to claim depreciation of value. Such a right would arise only if the Board had elected to proceed on that basis in terms of the whole provisions of section 1(4). However there may be circumstances where such a claim could be made indirectly as the measure of loss arising from failure of the Board to implement its statutory obligations.

Under the Act the primary obligation on the Board was to repair. Payment of depreciation in the value was an option open to the Board: section 1(4). Plainly the Board did not elect to take that option. Nothing in the present pleadings suggests that the real question arising for decision is a question of whether or not they should have made such election. If that had been the question and if the adjudicating body felt able to hold that they should have made such election, the measure of entitlement would appear to be as prescribed by section 1(7)(b) and the Second Schedule. No attempt is made to establish such entitlement.

A question which might well be thought to be implicit in the present pleadings is the question of whether the Board was in breach of its duty to execute all the necessary remedial works. There are averments that the applicant did not believe that the repairs were adequate. It is said that she was not satisfied that the property was safe. As we have noted, we consider that determination of the question of whether the works were adequate falls to be answered by reference to the test provided in section 1(2). However it might have been sufficient had the general question of adequacy of repairs been addressed. The evidence of depreciation might have been advanced simply as a potential measure of loss following the breach of duty. This might have provided material relevant for enquiry. However neither the pleadings nor the applicant's productions give any hint of an intention to deal in detail with any shortcomings of the repairs.

The applicant founded strongly on the decision in McAreavey, supra. In that case the applicants had given notice of subsidence damage in 1990. The Board accepted responsibility for some of the apparent damage but would not accept liability for damage to a gable wall. No agreement could be reached and no repairs were executed. The applicant eventually sold the property in 1994 for £ 40,000. It was accepted that, undamaged, it would have fetched £ 115,000. The purchaser demolished the property which, of course, made it impossible for any repair to be carried out. On a reference to the Tribunal the applicants claimed compensation for depreciation in the value of the property. This was based on the £ 75,000 shortfall. It was a matter of agreement that the estimated cost of repairs would have exceeded that figure. The Tribunal had accepted a contention by the respondents that although the Tribunal had found that all the damage had indeed been caused by mining subsidence, section 13 was limited in respect of the power conferred on the Tribunal. However, the Court of Appeal held, by a majority, that the Tribunal did have jurisdiction to award damages in the amount of the depreciated value when this would have put the claimants in the same position as if the respondents had discharged their obligation under section 1.

We entirely accept this conclusion. We see no need to treat section 13 as fettered by reference to actual performance of remedial works. It is important, however, to recognise that an award of damages based on the respondents' failure to carry out their obligations under section 1 is not the same as damages for loss arising from mining subsidence. In McAreavey the distinction was not critical. The amount was not in dispute. The real issue before the Tribunal was causation. The issue before the Court of Appeal appears to have turned essentially on whether the power under section 13 was limited to a power to compel repair and remedies ancillary to that. It is important to see the dicta in context. We are respectfully in agreement with the analysis of Clarke L.J. We consider that much of the apparent difficulty arises from the superficial similarity of a claim made for "depreciation in value" as a measure of damages and the use of that expression as part of the statutory choice open to the Board under section 1(4). It is not necessary to construe the introductory words of section 13(3) as enabling the Tribunal to give damages for mining subsidence in order to allow it to order a payment to be made instead of ordering remedial works. Where works should have been carried out at an earlier stage, damages for failure to carry out the works would seem to be an entirely appropriate remedy. The measure of loss may have regard to the physical damage caused by the mining subsidence but what truly has to be assessed is loss due to the damage which would have been remedied if the Board had carried out its duties properly. The distinction may have been blurred in McAreavey where it was not relevant to the issue before the Court. It is more obvious where some repair work has been carried out. That might be work carried out by the owner such as suggested by Clarke L.J. (para 14) or work carried out by the Board, as in the present case.

It is scarcely necessary to observe that the distinction is common in medical negligence cases. There is normally no question of a doctor being in any way liable for the presenting condition. However, if such condition would have been cured by proper treatment, damages for negligent failure to give such treatment may be measured by reference to the persisting effects of the original condition. It would, of course, be an oversimplification to say that damages were awarded for the condition. Similarly, we think it potentially misleading to say that the Tribunal is empowered to award damages for the loss caused by the subsidence. On its facts, the Tribunal in McAreavey was entitled under section 13 to award damages in the amount of the depreciation. "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 [caused by subsidence] from the outset": Clarke L.J., paragraph 8. "The purpose of [section 13(3)] is to give the Lands Tribunal power to put the claimants back into the position in which they would have been if the Board had discharged its obligations": (para 11).

We do not share the difficulty over what was described in McAreavey as arrogating to the Tribunal a power to require the Board to pay for depreciation in circumstances where Parliament had expressly conferred on the Board a right to elect to make such payment. We accept that payment of an amount based on depreciation as a statutory right under section 1(4) is available only where the Board has elected to pay this as an alternative to the duty to repair. Where the Board has failed to accept a duty to repair, the provisions for election simply do not apply. The power in the Tribunal to award damages, to give effect to their determination that the Board failed to implement the obligation to repair, is not the same as compelling election to proceed under section 1(4).

Nor do we find a difficulty in the fact that the diminution in value had occurred before the failure to effect repairs or to effect these timeously. If the Board had carried out its duty it would have "cured" the loss either by effecting repairs to remove the diminution in value or by electing to pay compensation. The fact of the diminution in value is not caused by a breach of the Board's obligation. The fact that an element of diminution remained at a time when the Board should have taken steps to deal with it is the real loss attributable to their failure.

Mr Clancy's main substantive submission in relation to the claim advanced under the 1957 Act was that no claim for payment was now open to the applicant as she was no longer the owner of the property. This submission turned on the provisions of section 1(7) and the Second Schedule. However, for the reasons discussed above we consider that the payment contemplated by that Schedule is payment made in accordance with the scheme of the Act. Such a payment would be made following election under section 2(2). If the Board had chosen the course of making payment under section 1(4) the detailed provisions of Schedule 2 would have applied. Where they have not made such election there is nothing to trigger these provisions. In particular we are not satisfied that the provisions of the Second Schedule have any application to a claim to a court or tribunal under section 13.

As this approach was not fully addressed in submissions and does not require determination by us, we need express no concluded view. However our thinking is informed by various considerations. On the face of it the power of the court or tribunal under section 13 is to make such orders as may be necessary to give effect to its decision. We accept the majority decision in McAreavey as to the scope of the power. If, for example, a court or tribunal was able to reach the conclusion that the Board was in breach of an obligation to pay a particular person at a particular date in accordance with the provisions of section 1(7) there is nothing in the provisions of section 13 which would prevent it from making an appropriate award to such person without regard to current ownership of the property.

As we have seen, the provisions of section 2 and section 1(4) contain a specific set of procedures which give the Board an option to pay a sum calculated in accordance with Schedule 2 in lieu of carrying out repairs. There would inevitably be some delay between the initial notice under section 2(1) and the election under section 2(2) because some form of assessment would be required to determine the amount of repair work necessary and the comparative depreciation in value. A delay between Notice and either repair or payment must have been in contemplation. The primary duty of the Board is to repair and it is evident that the benefit of performance would be a benefit to the owner of the house at date of repair. If a sale had taken place after notice, the seller would be selling a damaged house which had the benefit of the Board's obligation of repair. Plainly the giving of notice would not be a relevant date in relation to performance by way of repair. Where payment is chosen by the Board as an alternative to repair, express provision that the right to payment go to the owner, who would otherwise have the direct benefit of the repair, makes obvious sense.

If the Board, having elected to carry out repairs, carried out such repairs inadequately or negligently so as to lead to identifiable loss caused by failure properly to carry out its obligation of repair, section 13(3)(b) would appear to give the court or tribunal power to award damages. This is because a failure to carry out repair work properly would almost inevitably be a failure to carry out its obligation of repair within a reasonable time. We see no justification for reading section 13(3)(b) as if the whole emphasis was on the time as opposed to emphasis on the primary duty to carry out repair. Where there had been a persistent failure to carry out proper repairs the owner would require to act reasonably to mitigate any loss. This might involve having repairs, including permanent repairs, carried out by someone other than the Board or might, as in the McAreavey case, lead to a decision to sell the property. In each of these cases the court or tribunal would have to calculate appropriate damages consequent upon the Board's failure to execute adequate remedial works. We consider that the court or tribunal is free to determine who has in fact sustained the loss. In the case of a proprietor forced to sell at a diminished price it is clear that the loss rests with the seller. In the case of someone who has carried out repairs before selling his property it is again clear that the loss rests with the seller. It was implicit in Mr Clancy's submission that what was contemplated was that the subjects would be sold with a right to a claim against the Board. We think it a matter of common sense or experience that there would be likely to be a loss of value on such a sale even if liability was admitted by the Board at the time of sale. The loss where liability was in dispute would inevitably be larger. We would not accept such a construction without compelling reason. We find nothing in the Act driving us to such conclusion.

Further we observe that in McAreavey no doubt was expressed as to the power of the Tribunal to order payment to the applicant. The claim was made in the name of the persons who had been owners of the property from the time of damage up to a time when negotiations had failed. The beneficial interest in the claim lay with their insurers who had paid them a sum representing loss of value on sale and who succeeded to their rights by subrogation. The property had been sold in September 1994. The Reference to the Tribunal was dated 19 December 1995. There was no question of the owners "for the time being" being involved in any way. It is clear that they had acquired damaged property at its value in its damaged state. They had incurred no loss.

The 1991 Act also makes provision for payment to the person who is "for the time being the owner of the property". We do not consider it appropriate to attempt to use the provisions of that Act as an aid to construction of the 1957 Act and it is unnecessary for present purposes to attempt analysis of the later Act. However we consider that if the distinction is maintained between "a depreciation payment" in terms of the Act and a payment of damages assessed by reference to depreciation, it is likely that the more recent Act will fall to be construed in the same way as the 1957 Act. The case of Blake, supra, was a case under the 1991 Act. As no opinion was delivered by the Tribunal it is unnecessary for us to comment further on it.

In conclusion, it should be said that we have given consideration to the question of whether the current application should be sisted to allow the claimant to rely on it as a claim based on the 1991 Act, if she decided that the notice under the 1957 Act should be withdrawn. However we see no purpose to be served by this. At present there is no question arising under the 1991 Act. Until an appropriate question is raised and identified no claim under section 44 can be entertained by the Tribunal. We consider that in all the circumstances we have no alternative to simply dismissing the present application. Any subsequent claim based on the 1991 Act will require to be considered on its own merits.

LTS/COMP/2000/3