Lands Tribunal for Scotland


Compensation – Coal Mining Subsidence – Competency – Procedure – ‘Damage notice’ met by respondents’ notice indicating no agreement that any remedial obligation – Applicants proceeding to carry out repairs without first seeking determination that subsidence damage – Objection to competency repelled – Coal Mining Subsidence Act 1991, Sections 2-7, 37, 40, 52

Castle Rock Edinvar Housing Association Limited v The Coal Authority
11 June 2010

The applicants sought a determination that certain damage to houses was ‘subsidence damage’ within the meaning of the Coal Mining Subsidence Act 1991 (“the 1991 Act”) together with damages in respect of repair costs. They had served a ‘damage notice’ under Section 3. The respondents had in turn served a notice under Section 4 indicating that they did not agree that they had any remedial obligation. The applicants had proceeded to repair the damage without first seeking a determinatiion that it was ‘subsidence damage’. The respondents submitted that in that situation, even if subsidence damage were established, they could not have failed in any duty under the Act and the applicants were not entitled to the remedy sought under the Act. The respondents submitted that by not coming to the Tribunal at the point of disagreement the applicants could not show any breach of the statutory remedial obligation and were outside the Act. There were, the respondents argued, practical reasons for this construction of the Act’s provisions, which were completely different from those of the Coal Mining Subsidence Act 1957 (“the 1957 Act”). The applicants argued that the 1991 Act nowhere required them to have challenged the respondents’ denial of their obligations prior to carrying out necessary repairs: if subsidence damage were established, the respondents were in breach of the duty imposed by Section 2 of the 1991 Act. The applicant relied on the reasoning of the Court of Appeal, applying the 1957 Act, in McAreavey v The Coal Authority.

Held, rejecting the respondents’ plea and allowing the application to proceed, the essential issue was one of construction of Section 2(1) of the 1991 Act, as to whether that provision created an overarching obligation where there was ‘subsidence damage’. Section 2(1) was “subject to and in accordance with” later, more detailed procedural provisions differing from those in the 1957 Act. The new notice procedure in Section 4 entitled the claimants to know as soon as reasonably practicable whether the Authority accepted the obligation, but there was no express requirement on them at that stage to seek a determination from the Tribunal. In line with the Court of appeal’s analysis of the 1957 Act’s provisions, the fact that the Authority acquired a right to elect what form of remedial obligation to undertake did not mean that they were not already under a basic obligation. Section 4 was consistent with such an obligation already existing. Landsborough v The Coal Authority had arisen where the Authority had accepted that it had an obligation.

Authorities referred to:-

Knibb v National Coal Board [1987] QB 906
McAreavey v The Coal Authority (2000) 80 P & CR 41
Fitzpatrick v The Coal Authority, 8.1.2001, LTS/COMP/2000/3
Landsborough v The Coal Authority, 25.1.2004, LTS/COMP/2004/02 .

See full decision:  LTS/COMP/2009/12