NOTE

Landsborough v The Coal Authority

This is an application for compensation for subsidence damage under the provisions of the Coal Mining Subsidence Act 1991. It is not disputed that there was such damage nor that the respondents have to compensate the applicants in accordance with the provisions of the Act. The case was due to come before us by way of full hearing. When a difficulty arose over availability of witnesses, parties very sensibly agreed to use the time to debate one important aspect of the claim. It may be that resolution of this matter will allow the other issues to be agreed.

The issue we considered was whether the applicants could recover the cost of necessary repairs when they or their insurers had proceeded to carry out these repairs before a schedule of remedial action had been agreed or determined, and when no question of emergency arose under the provisions of section 12. For the present purposes, no distinction fell to be drawn between the applicants and their insurers and we shall use the term “claimants” to cover both.

At debate Mr Santoni, solicitor, appeared for the claimants and Ms Jane Paterson, Advocate, for the respondents.

Authorities referred to:

Brady v National Coal Board (Second Division 4th June 1999)
Highland and Universal Ltd v Safeway Properties Ltd 2000 SC 297
Langley v The Coal Authority (Court of Appeal 21st February 2003)
McAreavey v Coal Authority (Court of Appeal 19th July 1999 – 80 P & CR 41)
Fitzpatrick v Coal Authority (LTS/COMP/2000/3 – 8th January 2001). This case was not relied on by the parties but was mentioned by the Tribunal as covering some of the relevant ground, including examination of the decision in McAreavey.

Relevant statutory material

Coal Mining (Subsidence) Act 1957
Coal Mining Subsidence Act 1991

It is unnecessary to set out the detail of the scheme of the 1991 Act which may be found conveniently summarised in the opinion of Peter Gibson, L.J. in Langley. Briefly, the Act by section 2(1) provides a duty on the Coal Authority (“CA”) to take remedial action in respect of subsidence damage. It may, itself, execute such works but another remedial action contemplated by that provision is the making of payments in respect of the cost of works executed by some other person: section 2(2)(b). The Act provides machinery for agreement of , such cost by reference to a schedule of remedial works. If parties cannot agree the schedule, the Act provides for it to be referred to the Tribunal for determination. If the schedule is agreed or determined it is not disputed that the practical effect of the provisions of section 8 is that the claimant can choose to carry out the work and take payment of the total sum in the schedule.

Agreed facts

In the present case the damage arose in April 1998. The damage to the subjects and neighbouring property meant that the claimants had to move out of the house and stay in alternative accommodation. Preliminary work was carried out by the CA, as a priority, to stabilise the area by grouting operations. Thereafter, all necessary preliminary procedures under the Act, were followed and parties reached the stage of attempting to agree the schedule of remedial works in terms of section 6. A measure of the difficulties which faced the claimants in this respect emerges from the fact that four schedules were put forward between 1998 and 7th February 2001. The first proposed repairs at a total cost of £1,708 and the last set out works at a cost of £14,375. The claimants considered that much more was required and their insurers agreed to pay for repairs to be carried out. They did not agree any schedule. Neither side referred the schedule to the Tribunal.

The circumstances in which the decision to proceed with repairs was taken were not admitted and at this stage it is unnecessary to deal with them. It seems that the insurers may have become frustrated by what they saw as an inability to get proper information from the CA although that body had advised them of their rights under section 38 to recover the costs of obtaining independent advice. It is clear that the insurers kept the CA informed of their intentions. They were going to carry out the work themselves and expected to recover cost of necessary repairs from the CA. The latter warned the insurers explicitly of the need to comply with statutory provisions and of the risk they faced in proceeding this way. There was a suggestion in correspondence that the insurers must have taken their decision before they had read the Act. This might explain how the difficulty arose but was not admitted and nothing turns on it.

Repairs were completed by the insurers to the satisfaction of the applicants who moved back home before November 2001. The statutory provisions allow various claims to be made in respect of the cost and consequences of a need for alternative accommodation. A series of interim payments have been made. Proof will be required to determine any outstanding claims of this type and the present note is not further concerned with them.

Submissions

Submission for claimants

Mr Santoni provided a helpful written statement of his submissions. He provided a careful summary of the relevant background by reference to the documentary evidence lodged. In opening his submission he submitted that the issues for the Tribunal at the debate were: “(1) Whether it was competent for the claimants to ask the Tribunal to determine the extent of the cost of repairs to their property in terms of section 6(4) of the Act notwithstanding that the repairs had been carried out and; (2) if the Tribunal could make such a determination, whether the claimants could invite the Tribunal simply to determine that the respondents had an obligation to make payment of such a sum or whether they would require to serve notice on the Coal Authority in terms of section 8”.

His legal submissions started by consideration of the nature of the 1991 Act. He submitted that it was a “Consolidation Act”. This was said to be significant in the way in which the Act should be interpreted. The object of a Consolidation Act was merely to reproduce the law. Prior authorities should be regarded as highly persuasive if not binding because Parliament could be taken to have them in mind when enacting the Consolidation Act. It may be said at this point that we do not consider that anything turns on this particular submission. We were not advised of any authorities on construction of the 1957 Act which might have been available to Parliament in 1991. Those referred to above come after that time. In any event we are satisfied that the 1991 Act was not a “Consolidation Act”. It is set out in quite different terms. There is no direct equivalent in the earlier Act to the provisions of section 6. The 1991 Act introduced the important additional right to compensation for depreciation. The existence of such a right might well colour interpretation of other sections. However, it does not appear to us that anything turns on the status of the Act. We accept, without difficulty, that decisions in regard to any similar words and phrases in the 1957 Act should be regarded as highly persuasive in relation to the 1991 Act.

Mr Santoni then set out the scheme of the latter Act. The claimants had adequately intimated their disagreement with the proposed schedule. He stressed that there was no time limit for application to the Tribunal although it was not possible to apply to the Tribunal within the “cooling off” period of 28 days provided by section 6(4). He accepted that a determination of the schedule was of critical importance and described it as “fundamental to the Act”. The only obligation to make a payment in lieu was to the extent of the value of the work specified in the schedule. He submitted that there was nothing in the scheme of the Act which would prevent a claimant making an application to the Tribunal to determine the extent of repairs that should be included within the schedule even if the works had been carried out. There was no question of usurping the authority of the Tribunal.

He submitted that the situation was similar to that in Brady and also similar to McAreavey. He analysed the decision in Brady. The full facts were not clear from the decision at the appeal stage. The Board had repudiated liability and the house had been demolished. It seemed that the main issue related to the sufficiency of the original notice. But, the Court had appeared to accept that there would have been a relevant claim even after demolition. He submitted that the similarity between the provisions of section 6 of the 1957 Act and section 37 of the 1991 Act allowed the Tribunal now to rely on the case as authority for the proposition that it was competent to proceed with a claim for damages and payment even in a situation where the house had been demolished. He submitted that the factual background in McAreavey was essentially similar to the present case. Section 13 of the 1957 Act was virtually identical to the terms of section 40 of the 1991 Act. McAreavey was authority for the proposition that the section allowed a wide claim for cost of repairs to be dealt with by the Tribunal.

The focus of the legal propositions underlying the issues for the Tribunal changed in course of the debate and we have some hesitation in narrating which was to meet the first issue and which the second. However two strands of argument emerged which went beyond the supposed issues as set out above. In terms of section 40 the Tribunal had a power to make an award of damages. This plainly could include the cost of repairs reasonably necessary but Mr Santoni accepted that the basis of any such award would have to be a breach of some obligation on the part of the Coal Authority. In his written submissions the matter was put rhetorically but the breach alleged was the “delay in putting forward a sensible Schedule of Works”. This was said to be based on the fact that the final schedule was not put forward until February 2001. On that basis, it was suggested that the Tribunal could simply “move on” to awarding damages. But no attempt was made to address the nature of damages which might fall from any such breach, there being, of course, separate provision under the Act for the obvious consequences of delay being a need to find alternative accommodation.

In his oral submissions, Mr Santoni suggested that proof would be required to show that the Authority was in breach of “an obligation to carry out repairs within a reasonable time”. Although he contended that in effect the measure of compensation, based on repairs necessarily carried out, would be the same as the costs determined by reference to a schedule of remedial works, there was no doubt that the theoretical justification required to rest upon some identified breach of statutory duty by the respondent. This submission was not explicitly tied to the issues set out above. There was no doubt that if well founded, it would produce a mechanism for the Tribunal to assess the cost of necessary repairs. This would be under section 40(3) rather than section 6(4). But it may be noted that no technical pleading point was taken by the respondents.

The alternative argument, advanced as the primary argument, was that the Tribunal faced no impediment to determining the necessary extent of repairs whether these had been carried out or not. Thus, the first question posed as an issue for the Tribunal could be answered in the affirmative.

In response to the submissions of Ms Paterson, Mr Santoni contended that there was no question of the CA losing anything by such a course. The provisions of section 8 effectively gave the claimant the right to require payment of the sum equivalent to the necessary repairs. That was what they were now seeking. It would be artificial to give the Act an effect which did not recognise the reality of the situation. Repair work had to be carried out. The Tribunal could assess the reasonable cost. The CA had a duty to remedy. They could not simply do nothing. It was wrong to present the case on the basis that the “claimants had failed to apply to the Tribunal”. There was no reason why the respondents who had a duty to repair should not have applied, themselves, to the Tribunal.

Submission for respondents

As narrated above, we are satisfied that the 1991 Act is not a “consolidating” statute in a technical sense and we need not set out the respondent’s submissions on that matter. Ms Paterson provided a full and helpful guide to the relevant provisions of the Act. She dealt briefly with the undisputed facts stressing that correspondence showed that the CA had made its position quite clear. They had directed attention to the mechanism for resolution of dispute. The repair work had been carried out when it was clear that the scope had neither been agreed nor determined.

She relied on the decision in McAreavey as supporting the position that the Tribunal’s power to award damages under section 40 was limited to situations where there had been an identifiable breach of duty by the CA. There was no identifiable obligation on them under the Act which they might be said to have breached in the circumstances of the present case.

In relation to Brady, Ms Paterson submitted that the primary issue was the question of notice. The report in that case, with its discussion of the implications of section 6 of the 1957 Act, provided no record of the argument. The Court had reached the correct result but it was suggested that the reasoning was unclear. In that case, if there had been a valid damage notice, the Coal Board would have had a duty to remedy. They had not done so. Essentially the issue was the same as in McAreavey. The observations of the Court were plainly obiter and in any event could not be read more widely than the decision in McAreavey.

It was important to consider the nature of the remedies. The primary remedy was one of specific implement. There could be an order to perform. This would, for example, include an order to make payment of any identifiable sum which had become due. That would not be equivalent to “damages”. Damages arose in respect of a failure to perform.

The main obligation on the CA was to execute works. In terms of section 7(2) no duty had yet arisen because there had been no agreement or determination of the schedule. Ms Paterson raised the question of what could happen if the Tribunal were simply to make a determination of the content of the schedule, namely, the work to be done and the appropriate figures for cost. Would the Tribunal be able to make any order in respect of such a finding? The obligation on the authority, once a schedule had been determined, arose automatically from the provisions of section 7(2). There was no need, under the scheme of the Act, for any order of the Tribunal. But in the situation created by the applicant, the CA would not have any obligation. When the repair had been carried out, there would be no need for them to do anything. In other words the Tribunal would be making a determination which in the admitted circumstances could have no practical effect. Plainly a court could not, in these circumstances, order specific implement. A Court cannot order an impossible specific implement: Highland and Universal Ltd.

The procedure followed by the claimants had deprived the respondents of their right to carry out the works. She faintly suggested that this was a benefit to the respondents because they might be able to carry out work themselves more cheaply than the scheduled cost. But in any event the scheme of the Act was for the schedule to be a basis of future action.

Finally, Ms Paterson stressed that in this case there was no issue of principle to be determined. The question arose simply because the claimants had deliberately failed to follow the procedure. There was no justification for damages under section 40(3)(b) because there had been no identifiable breach and no relevant statutory machinery which could be implemented at this stage because the authority could no longer put into effect any finding by the Tribunal.

Discussion

At the heart of the claimants’ submission seems to lie the proposition that the dominant duty on the CA in terms of section 2 is to take remedial action. They can execute remedial works or make payment of the cost: section 2(2). They did not carry out works within a reasonable time. It would, accordingly, be wrong and is in any event unnecessary to read the Act in a way which would allow them to escape the alternative duty of paying for repairs.

Although we would be sympathetic to the broad thrust of such a proposition, if well founded in fact, we must proceed on a proper construction of the Act. It does not proceed on the basis of fault. It gives a claimant the benefit of a scheme whereby the onus of proof is displaced: section 40(2).

The claimants’ submissions were in two parts although much of the relevant statutory material was said to be common to both. There was an explicit suggestion that as both would reach the same result it did not greatly matter which was followed. We are satisfied, however, that the two strands of argument presented are distinct and must be assessed separately.

We consider that some of the difficulty which Mr Santoni appeared to face in dealing with the supposed overlap between his two strands of argument lies in the fact that, under each, the claimants are, in reality, seeking compensation for damage done to the fabric of the house in the same way as a claim at common law. To bring it within the statutory scheme it must be presented as being based on a determination by the Tribunal of a schedule of remedial works under section 6(4) or as damages under section 40(3). We consider that it is important to recognise that the Act provides a self contained set of remedies independent of the common law. Common law rights are preserved by section 37, but if claimants found on their statutory rights these must be fairly found within the provisions of the Act. There seems to us to be no justification for a construction based on any notion of trying to prevent the CA “escaping liability”. If, on a proper construction of the Act as applied to the undisputed facts, no liability arises, there is simply no liability. It is irrelevant to construction that, if the claimants had followed the advice of the respondents, there would have been some liability.

Looking at the two strands of argument separately, it can be seen that the first is an attempt to show that if the provisions of the Act are properly understood and followed, the Tribunal can now make a determination of the schedule of remedial works under section 6(4) and that this will, by further application of the provisions of the Act, lead to a payment to the claimants of the sum determined by the Tribunal as the total of the work required by the schedule. The second argument turns on identification of a breach by the CA of some duty imposed on them under the Act and the proposition that there is a possible causal link between that duty and the cost of necessary repairs, sufficient to justify further enquiry.

We consider that, as submitted by the respondents, the broad scheme of the Act is plain. So far as relevant to the present dispute, the normal course of events would have been for the CA to prepare a schedule of remedial works and, if that was not agreed, for the matter to be referred to the Tribunal by one or other side. The Tribunal would, at that stage, have to adjudicate on the state of facts as they existed at the time of its determination. Although not an expert Tribunal for the purposes of structural engineering assessment, they would be in a position, if necessary, to inspect the subjects and would, accordingly, be able to understand any disputed evidence in light of their findings on such inspection. That would be a normal practice for the Tribunal.

It is important, we think, to note that Mr Santoni freely accepted and, indeed, submitted that the determination of the schedule was of critical importance and fundamental to the Act. We agree. Its importance as a preliminary stage providing the basis for the subsequent procedure is clear. As discussed below, however, it is not easy to see any sense in which determination of the schedule could be regarded as fundamental at this stage. The course followed by the claimants has attempted to by-pass the “fundamental” role of the schedule in the scheme of the Act.

Once the schedule is agreed or determined, the CA’s obligation is defined precisely by section 7(2). The CA “shall execute the remedial works as soon as reasonably practicable after the date on which a schedule of remedial works first comes into effect in relation to the damage”. This is the first attempt to define a period of time for carrying out work. The work itself has been defined by reference to the schedule: section 6(7). At that stage the claimants have a choice under section 8. They can request to carry out the remedial works themselves or by a specified person. If the CA agrees it will make a payment of the amount specified in the schedule: section 8(2). If the request is made before the work is started the CA cannot refuse such a request: section 8(7) and (8).

There are, of course, special provisions dealing with such questions as parts of the work and with situations where neighbouring properties are involved. However, the normal operation of the scheme as applied to the claimants’ subjects would be clear.

For the claimants it was stressed that the Act did not say which party had to apply to the Tribunal. Mr Santoni asked whether the CA were “entitled to complain about the claimants’ failure when they themselves made no referral”. But we consider it wrong to characterise the respondents as complaining about anything. Their position is that, although the claimants were entitled to a remedy under the Act, they chose to proceed without regard to the Act. No remedy is now available in the circumstances they have created. In a sense, the respondents’ position is simply that the claimants are on a hook of their own making and that not only is there no remedy but no need for the Tribunal to struggle to try to find one.

We are entirely satisfied that it was not the intention of the Act that the claimants would be entitled – except in emergency – to carry out their own remedial operations and then sue for compensation based on allegations of what work was necessary. Such a process would be appropriate in a claim for damages at common law. That option was preserved. It was not the option provided by the Act. But, in essence, the claimants seek to require the Tribunal to give effect to something close to the common law remedy.

The very terms of the second issue propounded by Mr Santoni as necessary for decision by the Tribunal, demonstrate that the submission presented in terms of a schedule of remedial works merely pays lip service to that expression. As we have indicated, it is not easy to see how a determination of a schedule at this stage, under the provisions of section 6(4), could be said to be “of critical importance and fundamental to the Act”. Unless there has been a breach of duty, the Act makes no provision for the Tribunal to order the CA to make any payment. It is not clear what criteria the Tribunal would be able to apply in assessing the reasonableness of a request under section 8(3), based on the premise that the claimant wished to execute works if it was clear that the claimant did not in fact intend to do any further work.

Further, the reference to a “schedule of remedial works” would be no more than a name to be attached to findings reached after hearing disputed evidence of witnesses in relation to a state of facts as they existed three years ago and the inferences which should properly have been drawn at that time. The evidence of any witnesses who were directly involved in execution of the repairs would inevitably be affected by what they in fact did and, perhaps more significantly, by what they found as they carried out the work. The CA would now be in no position to dispute assertions based on such findings which, in accordance with the scheme, should have been dealt with as separate variations: section 6(6). The Tribunal would have no opportunity to resolve any issue of fact by direct inspection.

It was urged that in a broad sense no harm would be done by making a determination of the schedule now. The CA could not carry out the only statutory duty incumbent upon it by executing remedial works in terms of section 7(2) but the claimant could be expected to proceed under section 8(3). It may be noted that this suggestion necessarily involves the proposition either that the claimant would be entitled to proceed on an assertion of fact which was not true or that the requirement to inform the CA of a “wish to execute works or to have them executed” is to be read as the same as a statutory requirement to narrate that certain things have been done. We do not say that such a provision could never bear such a construction but we are satisfied that it was not the intention of Parliament that it should have that construction in the circumstances of the scheme of the Act.

In short, we consider that agreement or determination of the schedule of remedial works before work is carried out is fundamental to the scheme of the Act. We see no basis for a construction of the Act in a way which would reduce the role of the schedule to a mere basis for calculation of compensation after the event.

We turn now to consider the case based on a suggestion that there has been a breach of duty within the meaning of section 40(3).

The applicants founded strongly on the decision in McAreavey. It was suggested that the facts were very similar because liability had been admitted and the dispute was over the extent of remedial works. We do not think this accurately summarises the legal bases of the procedural stages of that case. We adopt, for convenience, our own summary taken from Fitzpatrick: “In [McAreavey] 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 went on to stress that the real issue had been one of causation. What had to be assessed was the loss due to damage which would have been remedied if the Authority had carried out its duties properly. The CA had not accepted responsibility for the wall. It should have done. If it had done, it would have had a choice of repairing or paying the drop in value but, as the cost of repairs exceeded the depreciation it was reasonable to see the latter as the measure of loss when the CA had, in breach of duty, done neither.

Although some time was spent on examination of the dicta in that case, the parties were not in dispute as to its ultimate effect. The power of the Tribunal under section 40(3) is substantially the same as the power given to the Sheriff, or Lands Tribunal in England, under section 13(2) of the 1957 Act. This would allow the Tribunal to assess damages by reference to the necessary cost of repairs if it was established that the CA was in breach of any of its obligations under the Act and there was a causal link between the breach and the failure to repair. However, it must be observed that the jurisdiction given to the Tribunal is to determine “questions arising under this Act”.

Before there could be any justification for further enquiry, we consider that it would be necessary to be satisfied that within the statutory framework there was a relevant duty, either express or implied; circumstances from which it might realistically be inferred that the duty had been, or might have been, breached; and, a basis for holding that there was a possible causal link between any such breach and the loss caused to the applicants of having had to bear the cost of repairs. It may be noted that the matter might be further analysed by posing the question of whether recourse to section 40(3) was implicitly excluded by the scheme of the Act providing another remedy. We consider that issue adequately resolved by reference to causation.

There was, of course, a conflict between the parties as to whether any breach could be identified. However, Ms Paterson showed that there had been an apparent compliance with all the express statutory provisions and Mr Santoni was unable to suggest that there had been a breach of any explicit duty incumbent on the respondents.

The nature of any implicit duty was not made clear to us. The only faint hint in the pleadings of a claim based on section 40(3) may be at head [F] where it is said that “the respondents should have made a payment in lieu in relation to the true cost of repairs but they failed to do so” and “ the applicants are seeking a determination against them in that regard”. However, at the hearing we not understand it to be said that there was or had been any identifiable obligation to make a payment in lieu. Any request under section 8 could only be made after a schedule of remedial works had been agreed or determined. Plainly that stage had not been reached.

We did not hear submission addressed explicitly to the question of whether any particular section carried a relevant implied duty. In the written submission the breach alleged was the “delay in putting forward a sensible schedule of works”. This was said to be based on the fact that the final schedule was not put forward until February 2001. It was suggested that the Tribunal could simply “move on” to awarding damages. Assuming for present purposes that a schedule under section 6 not only had to reflect what the CA “considered” necessary to meet the requirements of section 6(2) but had also to be “sensible” and that that the claimants were offering to prove that in the light of all information known to the CA from time to time, none of the previous schedules could be regarded as “sensible”, the weakness in this proposition was that it made no attempt to address the nature of the loss which might properly be said might flow from any such breach. In February 2001 the applicants could have accepted the schedule. The cost of repairs subsequently carried out by them cannot be said to be a consequence of delay up to February 2001 even if a duty to act without delay can be taken to be implicit in the terms of section 6(1).

In course of his introductory narrative of fact, Mr Santoni had expressed doubt as to the competency of the CA producing a series of schedules. He did not attempt to found on this as a breach relevant to his argument under section 40(3). There would seem little purpose in limiting the CA to one schedule if they are to attempt to agree its contents. The so-called “cooling off” period must plainly have been intended to allow adjustment of the schedule in an attempt to reach agreement. But, in any event, even if production of a series of schedules was not within the contemplation of the legislature and if that was a breach of duty, it would not be easy to see how that caused loss. The claimants’ had a right to go to the Tribunal if they did not accept any proposed schedule.

In the oral submissions, Mr Santoni suggested that if the applicants could show that the Coal Authority acted “unreasonably in carrying out the provisions of the scheme”, a claim would lie under section 40(3). The very breadth of this submission may point to a realisation that no implicit duty could relevantly be spelled out of any individual provisions of the Act. There was no attempt to fit such a wide proposition into the scheme itself nor to identify a chain of causation whereby the claimants came to lose their direct rights. On the face of it, the claimants’ loss would seem to follow from the fact that, without having that schedule agreed or determined, they had chosen to do the work themselves. They must be taken to have decided not to follow the provisions of the Act which were still open to them at that stage.

It may be noted that in Brady and McAreavey the machinery of section 13(2) was necessary under the 1957 Act to allow a challenge of the decision that there was no liability in respect of the structural damage in question. That plainly was a “question arising under” the Act. Where the CA have put forward a schedule, the 1991 Act provides machinery by way of reference to the Tribunal to determine disputes as to what it should contain. It may be doubted whether a question of the content of a schedule can be said to arise under section 40 when the Act sets out a specific machinery for resolving any dispute as to content. Further it may be observed that the schedule is to specify the words which the CA “consider” necessary. The duty on the CA is not expressed in terms of an obligation to fix an objectively accurate schedule of work necessary. Determination by the Tribunal of a different total cost would not, in itself, demonstrate any breach of section 6.

It may seem unfortunate that, in a situation where the CA have admitted a liability to take remedial action, the applicants should fail to get the benefit simply because they carried out the work themselves. Had they followed the scheme of the Act they would, almost inevitably, have received at least the figure of over £14,000 disclosed in the final schedule. However, although Mr Santoni made the best of the material available to him, he has not persuaded us that in the circumstances of this case we can properly make a determination leading to a payment measured by reference to the cost of works - as defined, in effect, by Section 6(2)(a), or otherwise - consequent upon the subsidence damage. It is plain from the history set out in McAreavey that the scheme of the Act is based on lengthy experience of dealing with claims. It lays down a clear procedure which the claimants could have followed. The CA drew it to their attention in good time. There is nothing unreasonable about the construction of the Act contended for by Ms Paterson and no need for us to strive to find a construction which would allow the present applicants a remedy.

Decision

The stage where a schedule of works requires to be determined by the Tribunal under the scheme of the Act is before repairs are carried out. There is no justification for the Tribunal attempting to determine such a schedule in the circumstances of the present case.

The applicants have not set out a relevant case for enquiry under section 40.

As matters came before us somewhat informally in the circumstances set out at the start of this Note, we simply continue the case for further procedure to be determined.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 25 November 2004

N M Tainsh – Clerk to the Tribunal