Lands Tribunal for Scotland


Coal Mining Subsidence - Damage Notice served under 1957 Act - Remedial work carried out - Allegations that work inadequate - Sale of subjects - Claim for depreciation in value - Alternative claim under 1991 Act - Competency of claim for depreciation - Competency of claim where claimant not current proprietor - Jurisdiction of Tribunal - Coal Mining (Subsidence) Act 1957 - Coal Mining Subsidence Act 1991

Fitzpatrick -v- the Coal Authority
8th January 2001

The applicant was former proprietor of a mid-terraced dwelling in Saltcoats. It was not disputed that this property sustained physical damage as a result of mining subsidence. The applicant served a damage notice in accordance with the provisions of the 1957 Act and eventually repairs to the property were carried out by British Coal Corporation. On behalf of the applicant a detailed list of repairs/work still required was sent and considered by the Corporation. They decided that no further work should be carried out. By letter of 11th November 1994, solicitors for the applicant reiterated to the Corporation that repairs had not been carried out to the applicant's satisfaction. The subjects were sold in 1997at a price of £25,000. The applicant asserted that the property would have sold for about £80,000 if it had not been affected by mining subsidence damage. The applicant made a claim to the Tribunal seeking compensation under section 13 of the 1957 Act for an amount equal to the difference in value between the proceeds sale and the price the property would have reached if undamaged. Alternatively, she sought compensation under section 11 of the 1991 Act in respect of depreciation in the value of the property. The respondents disputed the claim on the merits but submitted that the application was irrelevant. On the face of it, it involved claims under both Acts. However the proper claim was under the 1957 Act. A proper notice had been served. Although there was provision in the 1991 Act for withdrawal of such a notice to allow a claim to proceed under the latter Act, this had not been done. In any event, any claim under the latter Act was said to be time-barred. The claim under the 1957 Act could not competently be heard by the Tribunal. Section 13 (1) of that Act provided for disputes in Scotland to be determined by the sheriff. Further it was contended that as the applicant was no longer the owner of the property, no claim for depreciation could proceed. Schedule 2, paragraph 4 of the 1957Act provided that a payment under sub-section 4 of section 1 of the Act should be made "to the person who is for the time being the owner of the property in question". As at the date of application and thereafter the applicant was not owner of the property. In any event, it was contended that the respondents' duty under the 1957 Act was to carry out repairs. The respondents and their predecessors had an option of electing to make compensation by reference to depreciation in value. They had not done so. The Act did not allow such a claim by the applicant.

Held (1) the only competent claim at present was that under the 1957 Act as notice of claim had been duly given and never withdrawn; (2) in terms of section 13 of that Act it was clear that the Tribunal had no jurisdiction and although the Lands Tribunal Act 1949 would allow the Tribunal to act as arbiters by agreement, the circumstances of the present case did not allow an inference of agreement to be drawn; (3) however a good claim could be presented for depreciation in value based on the effect of the failure to carry out proper repair works; (4) such a claim could be presented to the sheriff; (5) as there was no claim currently available under the 1991 Act it was unnecessary to reach a conclusion on the submissions made under reference to that Act; (6) however, on the face of the material currently available it was clear that the applicant would face considerable difficulty in respect to the time-bar.

Cases referred to:-

Blake - The Coal Authority (claim withdrawn) 6th September 2000
McAreavey - The Coal Authority 1999 EGCS105 (otherwise unreported)

See full decision:  LTS/COMP/2000/3