Coal Mining Subsidence Act 1991

Part I — Preliminary

Subsidence damage to which Act applies

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• (1) In this Act “subsidence damage” means any damage—

• (a) to land; or

• (b) to any buildings, structures or works on, in or over land,

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

• (2) An alteration of the level or gradient of any land not otherwise damaged which does not affect its fitness for use for the purposes for which, immediately before the alteration occurred, it was used, or might reasonably have been expected to be used, shall not be regarded as damage for the purposes of subsection (1) above.

• (3) In subsection (1) above “lawful coal-mining operations” means any coal-mining operations to which section 25 of the Coal Industry Act 1994 applies (including operations carried on in contravention of subsection (1) of that section and those that are actionable apart from this Act) which—

• (a) are carried on by a person who is for the time being a licensed operator within the meaning of that Act; or

• (b) are carried on by a person who has been such a licensed operator and in continuation of operations begun by that person before he ceased to be such an operator;

but for the purposes of this subsection any operations carried on or begun by any person as a person who is for the time being authorised to carry on coal-mining operations on behalf of a person who is or has been a licensed operator shall be treated as carried on or begun by the latter person, whether or not the authorisation extends to the operations in question.

• (4) References in this Act to subsidence damage shall not apply—

• (a) to damage caused in connection with the working and getting of coal and other minerals—

• (i) where the working and getting of the coal was ancillary to the working of the other minerals; or

• (ii) where the coal was worked or gotten by virtue of the grant of a gale in the Forest of Dean or any other part of the Hundred of St. Briavels in the county of Gloucester; or

• (b) to damage occurring underground in a mine of coal (being a mine within the meaning of the Mines and Quarries Act 1954).

Part II — Remedial Action

General

Duty to take remedial action

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• (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 remedi al 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 the works.

• (5) In this Act—

• (a) references to payments in lieu are references to payments in accordance with section 8 or 9 below; and

• (b) references to depreciation payments are references to payments in accordance with section 10 or 11 below.

Notice of subsidence damage

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• (1) The Corporation shall not be required under section 2(1) or (4) above to take any remedial action or make any payment in respect of the cost of emergency works, unless the owner of the property or some other person who is liable to make good the damage in whole or in part—

• (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.

• (2) The required notice with respect to any subsidence damage is a notice stating that the damage has occurred and containing such particulars as may be prescribed; and references in this Act, in relation to any subsidence damage, to a damage notice are references to such a notice with respect to the damage given within the period allowed by this section.

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

• (4) For the purposes of subsection (3) above, the knowledge required for founding a claim in respect of any subsidence damage is knowledge—

• (a) that the damage has occurred; and

• (b) that the nature of the damage and the circumstances are such as to indicate that the damage may be subsidence damage;

and a person’s knowledge includes knowledge which he might reasonably have been expected to acquire from the facts mentioned in subsection (5) below.

• (5) Those facts are—

• (a) any facts which were observable or ascertainable by him; and

• (b) any facts which would have been ascertainable by him with the help of any expert advice which it was reasonable for him to seek.

• (6) In this Act—

• “the claimant”, in relation to any subsidence damage, means the person who gave or, as the case may be, was the first person to give a damage notice to the Corporation in respect of the damage, and includes any successor in title of his;

• “any other person interested”, in relation to any such damage and any time, means any person other than the claimant who, not less than 7 days before that time, gave such a notice to the Corporation in respect of the damage, and includes any successor in title of any such person.

Initial response to damage notice

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• (1) As soon as reasonably practicable—

• (a) after receiving a damage notice; or

• (b) where they receive two or more such notices in respect of the same damage, after receiving the first of them,

the Corporation shall give to the claimant, and to any other person interested, 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, and to any other person interested, 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 or that person 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.

• (3) Where the Corporation accede to any such request, they shall give to the claimant and any other person interested a revised notice under subsection (2) above stating that they propose to elect to make a payment in lieu instead of executing the works.

• (4) In this Act references, in relation to any damage, to a notice of proposed remedial action are references to a notice under subsection (2) above (whether as originally given or as revised under subsection (3) above).

Determination of appropriate remedial action

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• (1) Subject to sections 9 and 11 below (obligatory payments in lieu and obligatory depreciation payments), 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).

• (2) Subject to subsections (4) and (6) below, the appropriate remedial action in relation to any damage is that stated in the notice of proposed remedial action with respect to that damage.

• (3) Where—

• (a) the Corporation have power under section 8 or 10 below to elect to make a payment in accordance with that section in respect of any damage; and

• (b) they have not exercised that power by stating in the notice of proposed remedial action with respect to that damage that they propose to make such a payment,

the Corporation may exercise that power at any time subsequent to the date of that notice, but only with the agreement of the claimant and any other person interested.

• (4) Where after the date of that notice the Corporation elect under either of those sections to take in respect of any damage any remedial action other than that stated in the notice (“the substituted action”), so long as the election is effective the appropriate remedial action in relation to that damage is the substituted action.

• (5) An election by the Corporation under either of those sections may at any time be revoked by the Corporation, but only with the agreement of the claimant and any other person interested.

• (6) Where the Corporation revoke such an election made in respect of any damage by a notice of proposed remedial action, this section shall apply as if the execution of remedial works had been specified in that notice as the Corporation’s proposed remedial action with respect to that damage.

Schedule of remedial works

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• (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; and

• (ii) in any other case, on the date on which the schedule is agreed or determined under subsection (4) above; and

• (b) may at any time be varied by agreement between the parties or in any manner determined under subsection (6) below.

• (6) Where—

• (a) any party by a notice given to the other party or parties requests a variation of a schedule of remedial works; and

• (b) the variation requested is not agreed between both or all parties, with or without modifications, before the end of the period of 28 days beginning with the date of the notice,

the matter may be referred to the appropriate tribunal, which may determine whether the schedule shall have effect subject to the variation.

• (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.

• (8) References in this Act, in relation to any subsidence damage, to the schedule of remedial works are references to the schedule of remedial works under this section relating to the damage, as that schedule has effect for the time being.

The kinds of remedial action available

Execution of remedial works

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• (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.

• (3) If so requested by the claimant or any other person interested at any time before the remedial works are completed, the Corporation shall give to him in writing adequate information with respect to any of those works still remaining to be executed.

Discretionary payments in lieu

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• (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.

• (4) In any case where it is proposed—

• (a) to merge the execution of other works in connection with the damaged property with the execution of remedial works; or

• (b) to redevelop the damaged property instead of executing remedial works,

the Corporation may elect to make a payment equal to any sums from time to time shown to have been expended by any other person in executing the merged works or the redevelopment works, up to an aggregate amount not exceeding the aggregate amount of the costs specified in the schedule of works (“the total scheduled cost”).

• (5) Where in the case of any property affected by subsidence damage—

• (a) immediately before the subsidence damage became evident the property was in a state of disrepair;

• (b) it is not practicable to execute remedial works without including in those works additional works which would not be necessary but for the disrepair (“the works attributable to the disrepair”); and

• (c) the total scheduled cost is higher by at least 20 per cent. than it would have been if the costs of the works attributable to the disrepair had not been included,

the Corporation may elect to make in respect of the cost incurred by any other person in executing remedial works a payment equal to the amount by which the total scheduled cost exceeds the aggregate amount of the costs specified in the schedule of works in respect of the works attributable to the disrepair.

• (6) In any case within subsection (5) above, the schedule of remedial works shall distinguish the works attributable to the disrepair from the works which would be necessary apart from the disrepair.

• (7) The Corporation shall not unreasonably refuse—

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

• (b) any request received from the claimant or any other person interested to make an election under subsection (4) 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.

• (9) Subsection (8) above does not apply where—

• (a) the Corporation have acceded to another such request made by another person;

• (b) the execution of remedial works by a person other than the Corporation would significantly impede the discharge of their remedial obligation in respect of one or more neighbouring properties; or

• (c) where the damage has rendered the property structurally unsound, the execution of such works by the person by whom the request was made or, as the case may be, by the person specified in the request would be unlikely to restore the structural integrity of the property,

and (in any case) as soon as reasonably practicable after receiving the request the Corporation give notice to that effect to the person by whom the request was made.

• (10) The Corporation are not to be regarded as acting unreasonably in refusing any request falling within subsection (7) above which is received after they have begun to execute remedial works.

• (11) An election under this section, and any revocation of such an election, shall be made by a notice given to the claimant and any other person interested.

• (12) The Secretary of State may by order substitute for the percentage specified in subsection (5)(c) above (whether as originally enacted or as previously amended under this subsection) such other percentage as he thinks fit.

Obligatory payments in lieu

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• (1) In any case to which this section applies the Corporation shall meet their remedial obligation in respect of any damage by making a payment under this section.

• (2) This section applies to the following cases—