Lands Tribunal for Scotland

OPINION

Castle Rock Edinvar Housing Association Limited
v
The Coal Authority

Introduction and Summary

[1] This is a preliminary issue as to the competency of an application under Section 40 of the Coal Mining Subsidence Act 1991 (“the 1991 Act”). The applicants’ property (and some 23 other properties, in respect of which there are similar applications and the same issue of competency) admittedly sustained damage in about 2004. The applicants seek a determination that the damage was “subsidence damage” within the meaning of Section 1 of the Act, together with damages under Section 40(3)(b) in respect of certain costs and expenses which the applicants incurred in repairing their property. The applicants timeously served on the respondents a “damage notice” under Section 3. The respondents in turn served on the applicants a notice under Section 4 indicating that they did not agree that they had any remedial obligation. The issue of competency arises because the applicants then proceeded to carry out the repairs without first seeking a determination that the damage was “subsidence damage”. The respondents submit that in that situation they could not have failed in any duty imposed on them under the Act and accordingly could not be liable under Section 40(3)(b). The respondents continue to maintain that the damage was not “subsidence damage”, but for the purposes of deciding this preliminary issue it is to be assumed that it was.

[2] The applicants were represented at an oral hearing by Ronald Clancy QC, instructed by Messrs Simpson & Marwick, Edinburgh, and the respondents by Malcolm Thomson QC, instructed by DLA Piper UK, Sheffield. Each side had helpfully lodged Notes of Argument.

[3] I have decided that the applicants’ contentions are to be preferred and that the respondents’ objection to the competency of this application should be repelled. The application should proceed.

Relevant Statutory Provisions

[4] The 1991 Act repealed and replaced the Coal Mining (Subsidence) Act 1957 (“the 1957 Act”). The main provisions relevant to this issue can be summarized as follows. References to the Corporation are now to be read as references to the respondents, the Coal Authority.

[5] Section 1(1) defines “subsidence damage” for the purposes of the Act as meaning any damage to land or buildings, etc.:

“caused by the withdrawal of support from land in connection with lawful coal-mining operations.”

[6] Section 2 provides:-

2 – Duty to take remedial action.

“(1) Subject to and in accordance with the provisions of this Part, it shall be the duty of the British Coal Corporation (“the Corporation”) to take in respect of subsidence damage to any property remedial action of one or more of the kinds mentioned in subsection (2) below.

“(2) The kinds of remedial action referred to in subsection (1) above are-

(a) the execution of remedial works in accordance with section 7 below;

(b) the making of payments in accordance with section 8 or 9 below in respect of the cost of remedial works executed by some other person; and

(c) 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.

“(3) References in this Act, in relation to any subsidence damage, to the Corporation’s remedial obligation are references to their obligation under subsection (1) above.

“(4) Where emergency works are executed by any other person, the Corporation shall also be under a duty, subject to the provisions of this Part, to make a payment in accordance with section 12 below in respect of the cost of works.

…”

[7] Section 3 provides:-

3 – Notice of subsidence damage.

“(1) The Corporation shall not be required under section 2(1) … above to take any remedial action or make any payment in respect of the cost of emergency works, unless the owner of the property …

(a) has given to the Corporation the required notice with respect to the damage within the period allowed by this section; and

(b) has afforded the Corporation reasonable facilities to inspect the property, so far as he was in a position to do so.

…”

[8] Section 4 provides:-

4 – Initial response to damage notice.

“(1) As soon as reasonably practicable-

(a) after receiving a damage notice …

the Corporation shall give to the claimant … a notice indicating whether or not they agree that they have a remedial obligation in respect of the whole or any part of the damage specified in the damage notice.

“(2) Where the Corporation give a notice under subsection (1) above indicating their agreement that they have such an obligation, they shall also give to the claimant … a notice-

(a) stating the kind or kinds of remedial action available for meeting that obligation and, if more than one, which of them the Corporation propose to take; and

(b) in the case of a notice stating that the Corporation propose to execute remedial works with respect to any damage, informing the claimant … that, if he makes such a request as is mentioned in section 8(3) below, the Corporation may elect to make a payment in lieu instead of executing the works.

…”

[9] Section 5 provides:-

5 – Determination of appropriate remedial action.

“(1) … where the Corporation have given a notice of proposed remedial action with respect to any damage, they shall meet their remedial obligation in respect of that damage by taking the appropriate remedial action (and not in any other way).

…”

[10] Section 6 provides:-

6 – Schedule of remedial works.

“(1) At the same time as the Corporation give a notice of proposed remedial action with respect to any damage, other than a notice stating that the only kind of action available for meeting their remedial obligation is the making of a payment under section 9 or 11 below, they shall send to the claimant and any other person interested (“the other parties”) a schedule of remedial works which meets the requirements of this section.

“(2) A schedule of remedial works shall specify-

(a) the works which the Corporation consider to be remedial works in relation to the damage, that is to say, such works (including works of redecoration) as are necessary in order to make good the damage, so far as it is reasonably practicable to do so, to the reasonable satisfaction of the claimant and any other person interested; and

(b) in the case of each item of those works, the amount of the cost which the Corporation consider it would be reasonable for any person to incur in order to secure that the work is executed.

“(3) The Corporation shall send with a schedule of remedial works a notice stating that, if any other party does not agree that the remedial action to be taken by the Corporation in respect of any damage should be determined by reference (where relevant) to the works and costs specified in the schedule, he should notify the Corporation within the period of 28 days beginning with the date of his receipt of the schedule.

“(4) If any other party gives such a notification within that period and he and the Corporation do not agree the schedule, with or without modifications, before the end of the next succeeding period of 28 days, the matter may be referred to the appropriate tribunal, which may determine the works and costs to be specified in the schedule.

“(5) A schedule of remedial works relating to any damage-

(a) comes into effect-

(i) if no other party gives such a notification to the Corporation within the period mentioned in subsection (3) above, at the end of that period;

“(7) On and after the date on which a schedule of remedial works relating to any damage first comes into effect the works specified in the schedule (and only those works) shall be regarded as remedial works in relation to the damage.

…”

[11] Section 7 provides:-

7 – Execution of remedial works.

“(1) This section applies where the Corporation are under an obligation to execute remedial works in respect of any damage.

“(2) The Corporation 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.

…”

[12] Section 8 provides:-

8 – Discretionary payments in lieu.

“(1) The Corporation may elect to make payments in respect of the cost of remedial works instead of executing such works themselves in any of the cases mentioned below in this section.

“(2) In any case where the Corporation receive the necessary request for that purpose from the claimant or any other person interested, they may elect to make, in respect of the cost incurred by a person other than themselves in executing any of the remedial works, a payment equal to the aggregate amount of the costs specified in relation to those works in the schedule of remedial works.

“(3) For the purposes of subsection (2) above, the necessary request is a request informing the Corporation that the person making the request wishes to execute the remedial works in question himself or to have them executed on his behalf by a person specified in the request.

“(7) The Corporation shall not unreasonably refuse-

(a) any request complying with subsection (3) above to make an election under subsection (2) above;

“(8) Subject to subsection (9) below, the Corporation are to be regarded as acting unreasonably in refusing any request falling within subsection (7)(a) above which is received before they have begun to execute remedial works.

…”

[13] Section 9 provides for ‘Obligatory payments in lieu’, in certain situations which have no application in this case.

[14] Sections 10 and 11 deal provide for depreciation payments.

[15] Section 12 provides for the different procedure in relation to payment, under Section 2(4), in respect of emergency works.

[16] Section 13 provides:-

13 – Payments in lieu.

“(1) The Corporation shall not be required to make any payment in lieu in respect of any works executed by any other person in connection with any property unless that person –

(a) has given the Corporation the required notice with respect to the works; and

(b) has afforded the Corporation reasonable facilities to inspect the property, so far as he was in a position to do so.

“(2) The required notice with respect to any works is a notice which-

(a) contains adequate particulars of the works;

…”

[17] Section 37 provides:-

37 – Avoidance of double claims.

“(1) A person entitled to give a damage notice under Part II of this Act in respect of subsidence damage to any property shall not be entitled to proceed at the same time in respect of the same damage to that property with both –

(a) such a notice; and

(b) a claim against the Corporation or a licensee of the Corporation for damages or compensation arising apart from this Act;

but a person so entitled may, subject to subsection (2) below, elect which notice or claim he will proceed with for the time being.

“(2) Where any person proceeds with such a notice or claim as is mentioned in paragraph (a) or (b) of subsection (1) above (“the original notice or claim”), he shall not be entitled to proceed with such a notice or claim as is mentioned in the other of those paragraphs unless –

(a) it is determined, whether by agreement or otherwise, that he is entitled to none of the relief claimed by the original notice or claim; or

(b) that notice or claim is withdrawn before it is determined.

…”

[18] Section 40 provides:-

40 – Disputes: general.

“(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 appropriate tribunal.

“(2) Where in any proceedings under this Act the question arises whether any damage to property is subsidence damage, and it is shown that the nature of the damage and the circumstances are such as to indicate that the damage may be subsidence damage, the onus shall be on the Corporation to show that the damage is not subsidence damage.

“(3) The tribunal, court or other person by whom any question is heard and determined under this Act may make such orders as may be necessary to give effect to its or his determinations and in particular may by order-

(a) require the Corporation to carry out any obligations imposed upon them by this Act within such period as the tribunal, court or person may direct;

(b) award damages in respect of any failure of the Corporation to carry out any such obligations.”

[19] Section 52, the interpretation section provides inter alia:-

“‘remedial obligation’ has the meaning given by section 2(3) above;

“‘remedial works’ has the meaning given by subsection 2 of section 6 above (subject to subsection (7) of that section).”

Authorities referred to:-

Knibb v National Coal Board [1987] QB 906
McAreavey v The Coal Authority (2000) 80 P & C R 41 (Court of Appeal (“McAreavey”)
Fitzpatrick v Coal Authority, 8.1.2001, LTS/COMP/2000/3
Landsborough v The Coal Authority, 25.11.2004, LTS/COMP/2004/02 (“Landsborough”)

Respondents’ Submissions

[20] The respondents’ submission was that, on a proper interpretation of the relevant provisions, the applicants were not entitled to the remedy sought. Although the 1991 Act gives practical advantages to claimants, principally in relation to onus of proof, a claimant under it was restricted to its terms. It was not possible to find a duty of which the respondents were in breach or any point in time at which any breach was established so as to allow the applicants to do remedial work themselves and claim payment of the cost, that being a remedy which (except in the case of emergency works) the applicants did not usually have under the Act.

[21] Mr Thomson looked closely at the Act’s provisions. The 1991 Act, he said, was far more complicated than the 1957 Act, with a level of sophistication and precise definition of terms which had not been in that Act. In Section 2(1), (2) and (3), ‘remedial obligation’ meant one of three types of remedial action identified in 2(2). The duty in Section 2 was not open-ended. Mr Thomson understood that the applicants could only be referring to a failure to carry out ‘remedial works’ (2(2)(a)). Section 6 defined that term, making it depend on the schedule procedure, and Section 7(2) provided that that duty arose only after the schedule of remedial works came into effect. The schedule provision on which the duty depended was at the heart of the reform introduced by the 1991 Act. As well as describing the works, the schedule fixed costs, relevant if a claimant wanted to do work himself. A payment in lieu under Section 8 was a payment which was at the Authority’s option, and only of the figure in the settled schedule. The applicants were short-circuiting the procedure: if they chose not to come to the Tribunal at the point of disagreement, they were outside the Act. Section 40(3) fitted this submission: it was necessary to follow the procedure in order to get to the remedy. The obvious situation for damages was where these were measured by the costs of works where the duty had crystallized.

[22] There was an additional practical point in relation to the onus of proof on the respondents, because this would be very difficult after remedial works had been done by someone else. The respondents would have had access at an earlier stage, but forming a view whether to accept the obligation was different from proving the position. The claimants would only have the benefit of that provision in proceedings under the Act. It made sense that if they chose to do the work themselves, they would have a remedy at common law but would have to shoulder the burden of proof: the Act provided advantage to the claimants but not prejudice to the Authority. The claimants had gone ahead with the work, knowing that the Authority would be trying to prove that they were not liable. Sections 2 and 6 were a complete answer, because the remedial obligation relied on never came into operation. Section 2(1) could not be read as if there was a duty to repair subsidence damage. That duty only arose through the schedule procedure. Sections 2(4) and 12, in relation to emergency works, were of passing relevance because they showed the only situation in which the applicants could proceed to carry out works themselves. There might be earlier breaches, such as failures to follow the requirements in Section 4 (although questions might arise as to the consequences), but it could not be said that providing a negative answer in the section 4(1) notice amounted to a failure of duty. Claimants might take a superficial view and serve notice under Section 3 but the Authority then investigate, find another reason for the damage and share their report. Or, at that point, there was a dispute, the schedule procedure would not arise and there would be a question under Section 40(1). The obligation to do anything did not crystallize until settlement of the schedule of remedial works. Mr Thomson considered the timing of the notice under Section 4(2) including the opportunity for the claimant to propose that the works be done by or on his behalf and the Authority’s election whether to carry out the works themselves or make a payment in lieu. Those provisions took one back to considering which method of fulfilling the Authority’s obligation had been chosen.

[23] Mr Thomson argued that there were reasons why Section 6(4) provided for reference of disagreement about the schedule to the Tribunal, whereas there was no such provision under Section 4. He submitted that this was concerned with timing: Section 6(4) prescribed the time before which such a disagreement could be referred and enabled parties to go on negotiating about the contents of the schedule, whereas there would be a clear issue as soon as the Authority indicated under Section 4 that it did not accept any liability. Another view was that expressed in Landsborough at pages 15-16, that without the specific provision in Section 6(4) there was room for doubt whether Section 40 enabled the Tribunal to substitute its determination of, for example, the value of necessary works. The type of dispute arising after a counter-notice under Section 4(1) clearly fell within the scope of Section 40. There was a dispute, which either party could refer. The Tribunal could then order the Authority to carry out the next obligation, but it could not be said that the Authority was in breach. Section 6(4) “didn’t not fit.”

[24] Mr Thomson contrasted the 1957 Act. The duty in Section 1(2) was completely different, viz. to carry out remedial works defined at an early stage as those necessary to address the subsidence damage, as soon as reasonably practicable, although the duty was qualified by an obligation on the claimant to serve a damage notice. The view could be taken that as soon as the (then) Board failed to carry out remedial works, it was in breach. In McAreavey, the court was considering what claimants faced with inaction in the face of their damage notice could do. The majority had suggested that in that situation they could proceed themselves to carry out the works. The issue under the 1991 Act was completely different. There had been no provision in the 1957 Act for the Board to postpone or avoid liability by denying that there was subsidence damage. The only thing they could do was to make a payment in lieu election. There was no equivalent of section 4 of the 1991 Act. Another difference was in Section 13(3)(b) (the equivalent of Section 40(3)(b) of the 1991 Act, and otherwise in similar terms), where the power was to award damages for failure to carry out obligations “within a reasonable time”. That would not be necessary where the Tribunal had fixed the time for performance, and might be addressing the situation where an award was sought without previously having been to the Tribunal. That was unnecessary in the 1991 Act, where Section 7(2) fixed the time. Decisions under the 1957 Act were of limited, if any, value.

[25] The facts in Landsborough were different, as liability had been accepted and the issue was how much should be in the schedule (or possibly the cost figures in the schedule – Mr Thomson accepted that it was not clear which and therefore that that case did not necessarily involve unadmitted damage, as in McAreavey and in the present case). The underlying point, however, was the same: unless the scheme was followed through, there could be no breach entitling the claimant to damages unless the schedule procedure was followed.

[26] Finally, Mr Thomson reminded the Tribunal that the applicants had made their election. They could have pursued remedies under the Act, but had lost the benefit of that. They had the common law remedy, subject to prescription but not to the statutory limitation under the Act.

Applicants’ Submissions

[27] The applicants submitted that, on the assumption that there was “subsidence damage”, the respondents’ arguments were incorrect and based on a misreading of the Act. The Tribunal had power under Section 40(3)(b) to award damages in the circumstances. The Act did not, in Sections 4 or 40 or anywhere else, require the applicants to have challenged the denial of the respondents’ obligation prior to carrying out the necessary repairs. The duty was imposed by Section 2.

[28] Elaborating on that position, Mr Clancy first pointed out that the respondents’ denial that they were responsible had been detailed and unequivocal. There was no suggestion that it was conditional or provisional. The remedy in Section 40(3)(b) – damages in respect of “any failure to carry out any such obligations” - did not require to be preceded by any other order. The obligation which the respondents had failed to carry out was the basic obligation under Section 2(1), not the obligation in Section 2(2)(a) to carry out remedial works. The respondents failed to meet their remedial obligation at the point when they gave their Section 4(1) notice. The specific remedial actions only came into play where the Authority accepted its obligation under Section 2(1). The duty arose immediately a property was affected by “subsidence damage”, subject for example to time bar and other procedural provisions. There was a single ‘remedial obligation’ (given that label by Section 2(3)), which was an obligation in its own right to take remedial action of some kind, in Section 2(1). The failure was to pursue any remedial action. If the Authority simply said that there was no subsidence damage, and this was wrong, they had not fulfilled their duty. The notice under Section 4(1) fixed the time at which they failed to fulfill their obligation. Mr Clancy referred to “incorrect repudiation”. He accepted that it followed that the claimants had three options: seek a determination that there was “subsidence damage”; pursue a claim for damages there and then; or, on the basis that it was clear that the Authority was not fulfilling its obligation, proceed to carry out the works themselves and then claim. Or the Authority could go to the Tribunal, and a claimant proceeding in the face of that might be met by the argument that the loss was not caused by the respondents’ breach.

[29] In relation to the practicalities raised by Mr Thomson, firstly as regards the inversion of the onus of proof, it could be seen that the Authority had had no difficulty in refuting the claim. They could have taken the matter to the Tribunal. They could not responsibly say unequivocally that this was not “subsidence damage” unless they were in a position to prove that. Secondly, as regards the option of doing the work or making payments in lieu, that only arose when they accepted the remedial obligation: if they had lost that option, that resulted from the stance they took in the antecedent question. Section 7 never came into play where the remedial obligation had been denied. Section 4(2) was pivotal. If the Section 4(1) notice rejected the claim, the Act had nothing more to say until Section 40, but if the notice was an acceptance, Section 4(2) applied and everything flowed from that. There was nothing to support the submission that where the notice was a rejection, the claimants had to challenge that there and then. Section 40(3) did not prioritise the remedies. If the respondents were correct, the power to award damages would be severely restricted, because the remedial obligations would be brought into play and damages would not be required. The power in section 40(3)(b) appeared general and unqualified. If the claimant had to go to the Tribunal before carrying out the works, one would expect to see the damages provision in narrower terms.

[30] Mr Clancy compared Section 6(4) with the absence of any such provision in sections 4 and 40. Section 6 came into play only where the Authority has accepted the remedial obligation. When the stage of dispute about the content of the schedule was reached, the Act recognised that there was at that stage no breach by any party. Hence this discrete, express mechanism for final determination of the content of the schedule, so that that was not left over for determination under Section 40. The very important distinction between Landsborough and this case was that there the remedial obligation had been accepted, parties were following the statutory procedures designed to get them to agree what work needed to be done. In both this case and McAreavey, a duty had been imposed to take remedial action and the Authority had wrongly refused to do so.

[31] Mr Clancy emphasised that the Authority’s decision not to accept the obligation had been taken in the knowledge that they would require to prove that the damage was not subsidence damage. He accepted that there was nothing in the Act specifically entitling the Authority to know that the claimant was starting to carry out the work, but that was a risk which they took. Section 40(3)(b) gave a statutory right to damages, but there was no particular provision as to their assessment. In McAreavey, the majority of the court held that the purpose of Section 13(3)(b) of the 1957 Act was to give the Tribunal power to put the applicants into the position they would have been in if the Authority had discharged its duties under the Act. The duties in that case were to effect the repairs or elect to make a depreciation payment. Because the Authority had failed to do either, it became subject to the jurisdiction to award damages. The basic scheme in the 1957 Act was essentially preserved. Mr Clancy reviewed the differences. The dispute provisions were virtually identical, the differences if anything supporting the claimant. If anything, the omission of ‘within a reasonable time’ expanded the power to award damages. The power of the Tribunal under Section 40(3)(b) of the 1991 Act was substantially the same. The important point in McAreavey was whether Section 13(3) could accommodate a claim for damages where the respondents had refused to accept their statutory duty and the claimant had taken no steps to challenge that position or obtain an order on the respondents enforcing the repair obligation. Mr Clancy reviewed the opinion of Ward LJ and the dissenting opinion of Peter Gibson LJ, the latter being essentially based, he said, on the view that it was inconceivable that the respondents had been deprived of their right of election: that failed to recognise that the power of election could only be exercised where they had accepted the obligation. The claim for damages was not brought to circumvent the Act’s provisions but because the Authority had rejected any obligation to take remedial action on an incorrect basis. The reasoning of the majority was supportive of the present claimants’ position.

[32] On the other hand, said Mr Clancy, Landsborough was readily and completely distinguishable, as the Authority had expressly accepted their obligation and brought section 5 into play. The applicants had then jumped the gun and the Tribunal correctly held that there had been no failure to fulfill any obligation. The reference at page 10 of the Opinion to the obligation being defined precisely by section 7(2) should be taken with the caveat that that only occurred where the remedial obligation had been accepted. The Tribunal’s approach, in their consideration of McAreavey, to the situation of refusal to accept the obligation was supportive of this analysis.

[33] Asked about the closing words of section 2(1), Mr Clancy said that the first part identified the duty and the final part how it was to be fulfilled. The duty was to take remedial action in one of three ways, like, for example, a duty to provide a safe system of work. The respondents had to do one or more things and had not done any. To fulfill it, they had to accept the obligation. By refusing to accept, they had made clear that they were not going to fulfill.

Reply by Respondents

[34] In a reply, Mr Thomson said that the nature of the dispute in McAreavey had been different: it had been accepted that the Authority were in breach. There had been no mechanism in the 1957 Act for indicating refusal to accept the claim. In Landsborough, the Tribunal’s interpretations of the Act, e.g. of Section 6(7), had been in accordance with the respondents’ submissions here. The negative Section 4(1) notice did not put the respondents in breach: either a dispute would emerge or not, and if it did the claimants would naturally raise the application. There was no requirement on the Authority to come to the Tribunal. Sections 2(3) and 52 provided a shorthand expression of the duties in Section 2(1) and (2), i.e. one or more of the specific duties. The nature of the remedial action was defined in Section 2 and later sections, which had not been done in the 1957 Act. The applicants could not point to a time by which the Authority should have carried out remedial works: it could not be correct that they were in breach the moment they indicated refusal.

Tribunal’s Consideration

[35] As I see it on the basis of the competing submissions, the essential question for decision is one of construction of Section 2(1) of the 1991 Act in its context. This is because Mr Clancy accepted that the applicants must be able to point, on the assumption that there was “subsidence damage”, to some obligation imposed on the respondents under the 1991 Act and some failure to carry it out, and he submitted that that obligation is to be found in Section 2(1).

[36] Section 2(1) creates, in respect of subsidence damage to any property, a duty, “subject to and in accordance with the provisions of this Part” (Sections 2 to 21), to take “remedial action of one or more of the kinds mentioned in subsection (2)”. The “kinds of remedial action” referred to in subsection (2) are: the execution of remedial works; making payments in lieu where someone else executes the works; and making payments in respect of depreciation. In each of these cases, subsection (2) refers to the action as being “in accordance with” particular provisions which follow. Mr Thomson assumed that the applicants must be claiming that they were relying on a breach of the duty to execute remedial works and analysed the following provisions to show that no such duty could have arisen here. He added that the same would apply if a duty to make payments in lieu were claimed (there is no depreciation issue in this case). Mr Clancy, however, argued that Section 2(1) itself creates an obligation, if subsidence damage is established, to do one or other of the particular things in the following provisions, so that once the Authority made clear that they did not accept an obligation to do any of them, they failed to fulfill the “remedial obligation”, which section 2(3) defines as a reference to the obligation under Section 2(1). I did not understand Mr Clancy to dispute that neither of the particular duties, to execute remedial works, or to make a payment in lieu, had yet arisen, so he requires to find, as it were, an overarching obligation in Section 2(1) in order to succeed.

[37] I can say in parenthesis that I can understand, and may refer from time to time to, the parties’ respective concerns, from their points of view, as to the consequences of a decision one way or the other on this. I accept that this legislation is not based on fault, and provides more limited and specific remedies than under common law, with the substantial benefit to claimants of inversion of the onus of proof of subsidence damage, and that the intention will have been to strike a fair balance in that context. I also note the background consideration referred to by the respondents that the applicants would have a remedy at common law if their claim under the Act failed. However, I respectfully agree with both Ward LJ and Clarke LJ in McAreavey when they said that the latter consideration did not assist in the issue of construction of the Act under consideration. It is that issue of construction on which I must concentrate.

[38] I first approach the words of the provision itself. I am attracted to the idea that a duty to take action of one or more of a list of kinds might involve a general or overarching remedial obligation, breach of which could found a remedy in damages. I do not see why a provision along the lines, for example, “in any case of subsidence damage to any property, to do one or more of the following, viz. repair that damage, make a payment in lieu or make a depreciation payment”, would not create an obligation or duty. The fact that the obligee may choose in which way to fulfill the obligation, so that it is not possible to fix which particular obligation has arisen, does not mean that no obligation has arisen.

[39] However, the actual words of section 2(1) together with the subsection specifically referred to may so qualify the provision as to make it difficult to construe it as providing that type of duty. The obligation is “subject to and in accordance with” the following provisions, and it is a duty to take action of “one or more of the kinds mentioned in subsection (2)”, which identifies the three kinds of action and also, again, provides that each is to be “in accordance with” particular following provisions. Section 2(3) might seem to provide support for the applicants in its reference to a singular “obligation” under subsection (1), but it might simply take one back to these qualifications and limitations.

[40] “Subject to” may refer to the suspensive conditions provided in Section 3(1), viz. the requirements on the claimant to serve a damage notice and to afford inspection facilities, and also to the limitation, etc., provisions later in the Act. It seems to me, however, that “subject to” might also qualify the right, the duty being subject to, and therefore limited to, action in compliance with the following provisions. That impression might be fortified by the additional words, “in accordance with”, again, the following provisions. I note, for example, that the (different) duty under Section 2(4) in relation to emergency works, is simply “subject to the provisions of this Part”. Further, “one or more of the kinds mentioned in subsection (2)” links with three kinds of duty each of which is again “in accordance with” particular provisions following. These references to the following provisions make it necessary to consider the scheme of those provisions in order to understand what the obligation is “subject to and in accordance with” and decide how it is to be construed.

[41] Having defined the ‘remedial obligation’ as it did in section 2, the Act adds in Section 4(1) a duty on the Authority to respond to the damage notice as soon as reasonably practicable, either agreeing that they have a remedial obligation in respect of all or part of the damage specified in the damage notice, or not agreeing. As Mr Clancy put it, Section 4(2), applicable if the obligation is accepted in whole or in part, is pivotal in the scheme of particular obligations. Detailed particular duties only crystallize after that and therefore only if the Authority has accepted at least some liability. Also built into the scheme is another feature which was not in the previous legislation, viz. settling a schedule of remedial works without which the extent and cost of works to be carried out, or the amount to be paid in lieu, cannot be known. Does the addition of these stages, with more statutory elaboration, together with the wording of Section 2, indicate an intention to allow the Authority to, as Mr Thomson put it at one stage, “postpone or avoid liability”, or did they already have a remedial obligation?

[42] Mr Clancy’s position was, and had to be, that as soon as they indicated in the notice that they were not accepting liability, the Authority were in breach. It might seem odd that by doing what Section 4(1) required, they put themselves in breach, but the duty in Section 4(1) is a procedural obligation, triggered by the damage notice, by contrast with the duty in Section 2(1) which, whatever it actually is, is a substantive obligation triggered by subsidence damage. There would therefore appear to be no necessary inconsistency between compliance with the procedural requirement in Section 4(1) (by intimating non-acceptance) and, at the same time, failing to carry out the substantive obligation which, on Mr Clancy’s approach, had already been triggered by the subsidence damage. Mr Thomson suggested, I think, that mere refusal, as opposed to actual failure to carry out the duty, could not found a breach. It seems to me, however, that where a person is under an obligation but makes clear his refusal to accept the obligation, loss and damage from the failure to perform the obligation may – not necessarily will – arise immediately. On this view, Section 4(1) fulfils a useful purpose, within a scheme in which the Authority has a positive role in taking remedial action, of entitling the claimant to know as soon as reasonably practicable whether the Authority accepts the obligation. On the respondents’ submissions, a “negative” Section 4(1) notice precludes any duty under Section 2(1) because it means that the Authority does not come under any obligation.

[43] An intention that the Authority can avoid any liability under the Act in that way may seem unlikely. However, it was agreed, and seems very clear, that it would raise an issue which could be referred to the Tribunal at that stage with a view to an order under Section 40(3)(a). On the respondents’ approach, the Section 4(1) notice, a new feature in this Act, enables the claimants to know at this early stage where they stand and that, if they wish to proceed under the Act rather than with their alternative, common law, claim, they require to refer the question whether the Act applies to the Tribunal.

[44] However, no such requirement is expressed in the Act. A requirement to come to the Tribunal at that stage would not necessarily be attractive to the claimant. This Tribunal endeavours to dispose of cases quickly, but if, as in the present case, the dispute is a substantial dispute about whether there is “subsidence damage”, with competing expert opinion, it might take some time to resolve and might then presumably only result in an order on the Authority to issue a notice under Section 4(2) and a schedule of remedial works, producing further delay and perhaps further Tribunal proceedings to settle the schedule, while the claimant’s property remains in a damaged state (albeit not in such a state as to require emergency works, for which there is alternative provision). Neither in Section 4 nor anywhere else in the Act is there any such requirement to refer the dispute at that early stage. With respect to Mr Thomson, it seems to me more important to consider the effect of the absence of such specific provision, either in Section 4 or anywhere else, in itself, than to look for a particular reason for the inclusion of such a provision in Section 6(4) in relation to the content of the schedule of remedial works in order to see what “fits”, although I accept that that is part of the picture.

[45] The form and content of Section 40, defining the remedies under the Act, seems to me to be of some importance. Any question arising under the Act may be referred to and determined by the Tribunal. The Tribunal may make such orders as may be necessary to give effect to its determination. In particular, it might, in effect, make an order for specific performance or award damages. There is nothing in the detailed scheme of the Act to say that where the Authority has set its face against accepting an obligation to take remedial action the claimant has to come for an order requiring it to do so rather than seek damages for its failure to do so.

[46] Mr Thomson pointed out that there is no provision requiring a claimant to give the Authority any warning that he is about to repair the damage himself. That was said to give the Authority an evidential difficulty and in effect to prejudice them, where the Act also places an onus of proof on them. However, the duty claimed would only arise if the Authority has been afforded reasonable facilities to inspect the property (Section 3(1)(b)), and the Section 4(1) notice has only to be given “as soon as reasonably practicable”. An intention that the section 4(1) notice procedure should enable the Authority simply to take a view that they will not accept any remedial obligation, without being in a position to prove that their operations did not cause damage (the nature and circumstances of which are such as to indicate that it may be subsidence damage: Section 40(2)), and thus avoid any duty under the Act, again appears unlikely. It should also be remembered that any damages awarded under the Act would not simply be damages for subsidence but damages for failure to carry out the obligations imposed under the Act. If a real issue of prejudice as a result of inadequate inspection facilities arose, it could be argued either that Section 3(1)(b) had not been complied with or that the chain of causation between failure to follow through the Act’s provisions by accepting a remedial obligation and the damages claimed had been broken. However, this is a point to which I shall return when considering the comparison between the 1957 and 1991 Acts.

[47] The place of the schedule of remedial works in the scheme was also stressed. It is a scheme to fix the works for which the Authority has an obligation and their cost. Again, however, ex hypothesi the fact that the Authority would, on the applicants’ arguments, be deprived of the benefit of that procedure would be the result of their failure to accept their obligations under the Act. And, again, since the damages sought are for failure to carry out obligations imposed under the Act, an issue might be raised as to whether a schedule arrived at under Section 6 would have been any different from the works, or their costs, on which the damages claim is based. In other words, if the extent of necessary works, or their cost, remains an issue, there could still be an enquiry into that in proceedings raised in the present way.

[48] I turn to the comparison between the 1991 Act and the 1957 Act, because this may assist in the construction issue and is in any event necessary because of the applicants’ reliance on the judgments of the majority in the Court of Appeal in McAreavey. That was a decision under the 1957 Act, although it was not decided until 1999, so that there could be no suggestion that it in any way influenced the form of the 1991 Act.

[49] It is clear that the 1991 Act is far from being a consolidating Act. Rather, as I understand it, it recast the scheme, making far more detailed procedural provision, to some extent incorporating into the statutory scheme existing voluntary practices, and thus incorporating more detailed procedural requirements, following a review of the working of the scheme in practice. Section 1(2) of the 1957 Act is certainly stated rather differently from the “remedial obligation” in Section 2 of the 1991 Act. I accept that careful consideration of the relevance of the McAreavey decision to the present issue is required.

[50] Section 1(2) of the 1957 Act provided:-

“(2) Subject to the provisions of this Act, as soon as reasonably practicable after the occurrence of any subsidence damage the National Coal Board (in this Act referred to as “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 … ”

(I pause to observe that the actual standard of remedial works appears to be differently expressed but I did not understand any point to be made about that.)

[51] In summary, Section 1(3) permitted the Board, “subject to the provisions of this Act”, instead of executing remedial works, to elect to make a payment equal to the cost reasonably incurred by anyone else in executing remedial works (apparently to the same standard), with further provision for some particular situations which need not concern us.

[52] Section 1(4) similarly permitted election by the Board, where the cost of remedial works would in their opinion exceed the depreciation in the value of the property, to elect to make a depreciation payment, again with further provision for some particular situations.

[53] Section 1(5) obliged the Board, again “subject to the provisions of this Act”, to make a payment equal to the cost reasonably incurred by anyone else in executing emergency works.

[56] Section 2(1) provided that the Board “shall not be required” to execute any works or make any payment unless served with a damage notice and afforded reasonable facilities to inspect the property.

[57] Section 2(2), contrasting with the ‘duty to respond’ provision in Section 4(1) of the 1991 Act, required the Board, as soon as reasonably practicable after receiving either a notice of damage or a request to exercise their power of election to make a payment in lieu, to “consider whether or not” to exercise their powers of election under Sections 1(3) and 1(4).

[58] Section 2(3), again contrasting with the procedure under the 1991 Act for settling a schedule of remedial works, did not require the extent of works to be settled prior to the Board carrying out the remedial works; but did provide that, where they had elected under Section 1(3) to make a payment in lieu, the Board would not be required to make any payment unless they had, in sufficient time before the works were begun, been provided with adequate particulars of the works and been afforded reasonable inspection facilities.

[59] In relation to disputes, Section 13(1) to (3) is in all but one respect essentially similar to Section 40 of the 1991 Act. The one difference was in relation to the power to award damages. Section 13(3)(b) referred to damages in respect of failure “to carry out any such obligations within a reasonable period”, the words underlined not having been carried forward into Section 40(3)(b) of the 1991 Act.

[60] The circumstances in McAreavey were somewhat different from those in the present case. Subsidence damage arose. A notice of damage was given in 1990. The Corporation offered to carry out relatively minor remedial works, but not including repair of a gable wall which had suffered the main damage, as they did not accept that that was subsidence damage. Repeated requests to the Corporation to purchase the property were refused. In 1994 the claimants sold the property for a much depreciated price, and then for the first time applied to the Tribunal, seeking damages in respect of the depreciation of the property. The claimants had neither agreed to the carrying out of the minor works proposed by the Corporation nor referred the dispute to the Tribunal over a lengthy period. Repairing the property was no longer an option, because the purchaser demolished it. The Tribunal, on the evidence, held that the gable wall damage was subsidence damage, but rejected the claim for damages based on depreciation. This was on the grounds that damages were a subsidiary remedy incidental to the primary remedy of remedial works and the claimant could not elect for a depreciation payment.

[61] The majority of the Court of Appeal allowed the appeal. The court’s consideration was focused on the scope of the remedy under Section 13(3), and the dispute was not so much about whether the Corporation had been in breach of duty – on the Tribunal’s finding, they had been guilty of unreasonable delay in carrying out remedial works - as whether that failure in their obligations had caused the claimants’ loss. However, they were also considering the nature of the duty. In the majority, Ward LJ’s first impression was that a claimant faced with a denial of responsibility and therefore failure either to effect repairs or elect to make a depreciation payment would be entitled to damages under Section 13(3). He then analysed the provisions more closely. He looked at the structure of obligations and said:-

“The critical issue seems to me to be as to the scope of the Board’s duty. Is it … a duty to execute remedial works as soon as reasonably practicable after the occurrence of the subsidence damage (or perhaps, in the light of Section 2, as soon as was reasonably practicable after receiving the damage notice)? Or is the Board’s duty, as I believe it to be, a duty either to repair, or, at their election, to pay compensation, the duty arising as soon after the receipt of the damage notice as is reasonably practicable for the Board to act? So to construe the duty does not deprive the Board of its specifically conferred right of election. My formulation acknowledges that right, but it also gives effect to the obligation to make the election within a reasonable time. If the Board elects to repair, it must repair; if it elects to make payment, it is then likewise required to make that payment. It cannot refuse to do the work and also refuse to pay compensation and then claim not to be amenable to the tribunal’s powers under Section 13(3).” ((2000) 80 P&CR at 53)

[62] Ward LJ drew assistance from the opinion of Sir John Donaldson MR in another majority decision of the Court of Appeal, Knibb v National Coal Board,at 915-6:-

“The cause of action is complete if subsidence damage occurs and the Board fails to execute remedial works or to pay compensation in either case as soon as reasonably practicable. The mandate of the arbitrator under section 13 of the Act of 1957 is to resolve disputes as to that liability and to make orders in the nature of specific performance or the award of damages in enforcement of that pre-existing liability. It is not to make a determination which will create the liability.”

[63] Clarke LJ’s analysis of the Board’s obligation was similar: if the damage was subsidence damage, the Board was in breach of its duty to carry out remedial works, unless it validly exercised one of its options under Section 1. If it had discharged its duty, it would either have executed repairs or made the depreciation payment. In the circumstances, an award of damages was necessary to give effect to the determination that the damage was subsidence damage and to put the claimants in the same position as they would have been in if the Board had discharged its obligation. Clarke LJ noted that it would not always be appropriate to award damages, because the claimants might have failed to take reasonable steps to mitigate or there might possibly be a break in the chain of causation. Referring to the view of the dissenting judge, Peter Gibson LJ, he said:-

“As I see it, however, to give the Lands Tribunal jurisdiction to award damages in this way is not to deprive the Board of its election. Parliament gave the Board the right of election at the outset. Thus the power to elect conferred by Section 1(3) and (4) is expressed to be “instead of executing remedial works” (at 58).

[64] As Mr Thomson acknowledged, and is indeed referred to in the majority judgments, this reasoning would also apply where a claimant proceeded to carry out repair works himself. Ward LJ said:-

“If a claimant were driven to discontinue and start afresh whenever faced with a complete denial of responsibility, then that would be an easy way for the Board to escape the rigour of the Act and the burden of proof thrust upon it. If, for example, the claimant had commenced his proceedings under the Act but there was delay and if the circumstances were such that he could no longer tolerate the discomfort caused by the damage, say rain penetrating through cracks or slipped roof tiles, and so had the necessary work done at his expense and then wished to be reimbursed, surely it could not be right or serve any apparent legislative purpose to force his hand and make him abandon the proceedings?” (at 52-53)

[65] Thus, under the 1957 Act, “subsidence damage” triggered an obligation under the Act (provided a damage notice was served, and also subject to affording reasonable inspection facilities), to execute remedial works as soon as reasonably practicable, with options to elect, subject to the Act’s provisions, to make a payment in lieu or a depreciation payment instead. If the Board (as it then was) did none of these things timeously (no doubt on the view that the damage was not subsidence damage), they were in breach and potentially liable in damages without the need for prior orders under Section 13(3)(a). If damages were claimed it would be necessary to consider the consequences of the breach and whether the loss arose, not simply from the subsidence damage but from the failure to carry out the statutory obligation.

[66] Mr Thompson emphasiSed the differences between the two statutes. The question which seems to arise is whether, despite the extent of the changes, the duty is essentially similar.

[67] I do not see any material difference between Section 13 of the 1957 Act and Section 40 of the 1991 Act, and I regard the decision in McAreavey as highly persuasive on the nature and scope of the remedies provided, particularly damages. Mr Thomson suggested that the omission of the words, “within a reasonable time” fitted the situation in which the Tribunal had made an order for performance. That may be so, but it could in my view equally fit a situation in which the Authority were refusing to carry out their obligations.

[69] That brings me back to the basic issue whether Section 2(1) of the 1991 Act, despite its references to later particular duties arising after the Authority has accepted an obligation, imports an obligation, the “remedial obligation”, which arises as soon as there is subsidence damage, in the way advanced by Mr Clancy. That approach seems to me to be clearly in line with the analysis by the majority of the court in McAreavey of the scheme of the 1957 Act, but of course has to be decided in this case under the different provisions of the 1991 Act.

[70] As we have seen, Section 4 – new in the 1991 Act – is pivotal in crystallising the particular duties, and Mr Thomson relied on this difference from the 1957 Act. I do not, however, consider that this defeats the applicants’ contention that there is a “remedial obligation” under section 2(1) as soon as there is subsidence damage. Indeed, Section 4(1) can be seen as helping the applicants’ position. Section 2(3) (reinforced by the interpretation section, Section 52(1)) refers to the “remedial obligation” as “the obligation under subsection (1) above.” Section 4(1) requires the Authority to indicate whether or not they agree, not that there is subsidence damage, but that “they have a remedial obligation”. If there were no remedial obligation until the stage referred to in Section 7(2) (or the time at which one of the alternatives of payments in lieu or depreciation payments has been elected), as the respondents argued, there would have been no such obligation at the stage of the duty on the Authority to respond to the damage notice. I am not sure that this is much different, in terms of substantive obligation, from the position under Section 2(2) of the 1957 Act. Put another way, it could be said that, as under the 1957 Act as analysed by Ward LJ and Clarke LJ, the fact that the Authority has the right to elect which form of remedial action to take does not mean that they are not already under a basic obligation. The additional procedural duty under section 4(1), far from providing an opportunity to postpone or avoid liability, may be consistent with such liability already existing.

[71] Again, consideration of the differences between the two Acts in relation to fixing the extent and costs of works executed by claimants rather than the Authority does not seem to me to defeat the applicants’ contention for an overall remedial obligation. Section 2(3) of the 1957 Act provided for timeous notice giving adequate particulars of works to be carried out, the payment being equal to the cost reasonably incurred in executing the works. It might seem that under the payment in lieu provisions of the 1991 Act, being related to the new formal procedure for settling a schedule of remedial works and costs, no question of such a notice would arise. In fact, however, Section 13(1) of the 1991 Act mirrors Section 2(3). Each of these provisions is related to the position where an election to make a payment in lieu has been made. I cannot see any indication of a different legislative intention in relation to the overall obligation and the situation if the Authority does not accept any obligation.

[72] It seems to me that we are still left looking for anything in Part II of the Act, to which Section 2(1) is subject and “in accordance with”, to indicate that the obligation does not arise unless the Authority accepts it or the Tribunal holds that it has arisen, or anything which materially distinguishes the provisions in this respect from those analysed in McAreavey. The lack of any specific reference in this detailed scheme of provisions to any requirement as to when the question whether the damage was subsidence damage has to be referred, together with the reasoning in McAreavey as to the nature of the remedy provided by the similar provisions in the 1957 Act, is in my opinion significant. As I have indicated, I am not concerned by the contrast with the specific jurisdiction provided in Section 6. Generally, it seems to me that the scheme of the 1991 Act is similar to that of the 1957 Act. It remains a scheme mixing compulsion with rights of election. It separates out duties which are essentially similar to those which went before. It adds procedures which do not, however, seem to me to show an intention to alter the character of the duty which arises where there is subsidence damage. Incorporation of these procedures may possibly produce more issues as to what loss flowed from the breach of the obligation or, as the majority in McAreavey put it, as to how to put the claimant back in the position he would have been in had the Authority fulfilled the obligation, but I do not think that it goes further than that.

[73] The other authority referred to was Landsborough, a decision of this Tribunal under the 1991 Act. In that case, the Authority had accepted that it had a remedial obligation and matters had moved on to the stage of settling the schedule of remedial works. Parties were clearly at odds and several schedules were put forward but not agreed. The claimants’ insurers agreed to pay for repairs which were carried out without any schedule having been agreed. The claimants then sought payment for the works, on the alternative bases that the Tribunal could still exercise its jurisdiction to settle the schedule (or perhaps make an order for payment under Section 40(3)(a)), or that it could award damages under 40(3)(b). Each of these possibilities was rejected. The Tribunal rejected the submission that the facts of McAreavey were very similar. They said that the real issue in that case 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.” (Opinion, page 13)

In relation to the claim for damages, the Tribunal said that there must be a basis for holding that there was breach of a relevant duty and a causal link between the breach and the failure to repair. They could not find either any relevant duty which had been breached or any causal link. The claimants’ loss seemed to have followed from their choosing to do the work themselves without a schedule having been agreed or determined.

[74] The Tribunal did refer to the intention of the Act as follows:-

“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.” (at 11)

It seems clear that this was said in the context of acceptance by the Authority that they had an obligation, as contrasted with a situation, which the Tribunal identified as having happened in McAreavey, of non-acceptance. I also, however, respectfully agree that the present claim cannot be based simply on “what work was necessary” and must be based on the applicants’ loss arising from the respondents’ (alleged) failure to fulfill the remedial obligation. The result might prove to be the same, but the latter formulation, in terms of Section 40(3)(b) might throw up additional issues.

[75] In all these circumstances, I have come to the conclusion that the applicants’ view of the obligation set out in Section 2(1) is to be preferred and that, while other issues may be raised, they have set out a basis for holding that the respondents have failed to fulfil that obligation, causing the loss claimed. Mr Thomson’s careful analysis of the particular duties and the time when they can be said to arise is, I have no doubt, correct, but I accept the submission that the remedial obligation arises before any of the particular duties; that, if there was subsidence damage, the respondents failed to fulfill the remedial obligation; and that there is nothing in the Act which requires claimants faced with non-acceptance of the obligation to refer the issue of subsidence damage to the Tribunal rather than seek damages. The ‘duty to respond’ under the 1991 Act is not an occasion on which the Authority can avoid the remedial obligation; rather, it enables the claimants to know whether the obligation is accepted, in which case the very detailed provisions based on co-operation between the Authority and the property owner come into play. The owner may ask the Tribunal to impose those provisions where the Authority does not accept responsibility, and may in many circumstances be wise to do so, but he is not compelled to do so. The Act gives him an appropriate remedy to put him back in the same position as if the Authority had accepted and fulfilled its obligation. I do not consider that any prejudice or unfairness to the respondents results from this view of the statutory provisions.

[76] For completeness, I should say that I have also looked at other cases listed in the parties’ lists of authorities but not referred to at the oral hearing and not found anything which disturbs my conclusion or significantly assists it. The applicants did refer in their written submission to Fitzpatrick v The Coal Authority, a decision of this Tribunal in which their reference (at page 19), to the remedy following failure to accept a duty to repair appears helpful to the applicants’ argument here, but this, again, arose in relation to the 1957 Act and does not, I think, add to the support which the applicants derive from McAreavey.

[77] The application should accordingly proceed. There was one other possible preliminary issue, as to whether certain substructure works come within the ambit of the Act, but I understood parties to agree that this might be better considered after evidence. Parties will no doubt also now consider, and hopefully agree, whether the issue of subsidence damage should or should not be separated from any issue which may arise on the quantification of the loss.