MARY EMMA LANGLEY and others v COAL LCA/29-56/1996

UPPER TRIBUNAL

LANDS CHAMBER

LCA/29-56/1996

Case No LCA/29-56/1996

Between

MARY EMMA LANGLEY and othersApplicant

COALRespondent

Before

THE PRESIDENT

John Wardell (instructed by Kennedys) for Claimant

Paul Darling QC (instructed by Nabarro Nathanson) for Compensating Authority

Giles Harrison Hall (instructed by Nabarro Nathanson) for Compensating Authority

Venue 48/49 Chancery Lane, London WC2A 1JR

Date 7 May 2002

Hearing 17-21, 30 September; 28-30 November 2001

Property: Land and properties at New Station Road, and High Street, Bolsover

Catchwords: COAL MINING SUBSIDENCE – landslip causing damage to land and buildings – held caused by mining subsidence – remedies – depreciation amount – blighted values – Coal Authority ordered to carry out re-grading of land. – payments in lieu for repairs to buildings – damages in respect of residual depreciation and expenditure already incurred by claimants

[1]There are 26 consolidated references in this case. They are all made by owners of property in Bolsover that was damaged by a landslip in the early 1990s, and the claimants seek remedies under the Coal Mining Subsidence Act 1991 for the damage that was suffered. A preliminary hearing into the issue of liability was held in 1998. It lasted for 28 days, and in his decision, the Member, Judge Levy QC, determined that the landslip that caused the damage to the premises was the result of mining subsidence. The liability of the Coal Authority was thus established in relation to such damage. I was told that 16 of the claims have now been agreed (subject to the question of interest on the amount agreed), including those made by the owners of 10 houses in New Station Road which had been damaged so severely that they had to be demolished. The hearing before me was thus concerned only with the 10 claims that were not agreed. They relate to 7 properties in High Street and 3 houses in New Station Road. In relation to the High Street properties there is dispute as to the extent of the damage attributable to the landslip, the diminution in value that has resulted from it for the purposes of the Act, and the order that the Tribunal should make. The 3 New Station Road claims raise individual issues that I will identify later.

[2]Before the hearing, I carried out an inspection of the High Street properties, both inside and outside, and I viewed New Station Road and the surrounding area. Topography

[3]Bolsover is a former mining town, the older part of which stands on a limestone escarpment that runs generally north-south from Clowne, 2 miles to the north, to Hardwick Hall, 3 or 4 miles to the south. The M1 motorway runs roughly parallel with this ridge, rather over a mile to the west. High Street, Bolsover, is situated along the escarpment at a point where it runs north-west/south-east, and the 7 High Street properties front the street on the south-west side. Further along the escarpment to the north-west is Bolsover Castle and below this, in the valley of the river Doe Lea about 350 feet below the ridge, is the former colliery. The High Street houses, which were built at various times between the 17th and early 20th centuries with later alterations and extensions, are within a conservation area. Beyond their back gardens the land falls away, across an area of open space known as the Back Hills, to the curtilages of 20th century houses (and of former houses, now demolished) in New Station Road. On the lower side of New Station Road there is extensive residential development. Castle Lane, almost fully developed on both sides with houses, runs down from the north-western end of High Street to New Station Road. Between numbers 53 and 55 High Street a steep path called Surprise View, partly destroyed in the landslip and now being restored, connects High Street with the Back Hills. 4 Mining in Bolsover

[4]The Bolsover Colliery mine was sunk in the 1890s and coal was extracted until the 1980s from a number of seams. Beneath the part of Bolsover containing High Street, New Station Road and the Back Hills coal was extracted from the Top Hard and First Waterloo seams, mainly in the 1920s. There is visible and documentary evidence of damage to property in Bolsover. Both the castle and St Mary’s Church, which stands a short distance to the east of the High Street properties, have a history of damage stretching back to the early part of the 20th century, and many of the properties in High Street have been the subject of subsidence claims. Between 1971 and 1987 29 of these claims were accepted, including claims at four of the subject properties – numbers 37 (1981), 47 (1982), 49 (1982) and 55 (1978). The statutory provisions

[5]Part II of the Coal Mining Subsidence Act 1991 makes provision for remedial action where subsidence damage has occurred. “Subsidence damage” is defined by section 1(1) to mean any damage to land or 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.

[6]In the present case the duty to take remedial action is that of the Coal Authority (Coal Industry Act 1994, section 43) and is contained in section 2:

“(1) Subject to and in accordance with the provisions of this part, it shall be the duty of [the Coal Authority] 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 payment in accordance with sections 8 or 9 below in respect of the cost of remedial works executed by some other persons; (c) the making of a payment in accordance with section 10 or 11 below in respect of the depreciation in value of the damaged property.”

[7]Under section 3 an owner whose property is damaged by mining subsidence and who wishes to invoke the provisions relating to remedial action must give the Authority notice within 6 years of having the knowledge required to found a claim. The notice must state that the damage has occurred and must give the prescribed 5 particulars. The owner must afford the Authority reasonable facilities to inspect the property.

[8]Under section 4, as soon as reasonably practicable after receiving a damage notice, the Authority must give notice to the claimant 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. If they indicate that they do have a remedial obligation they must state the kinds of remedial action available for meeting the obligation and which one they intend to take. Section 5 requires them to meet their remedial obligation by taking such action. If they could have elected to make a payment but did not do so in their notice, they may do so subsequently, but only with the agreement of the claimant. Under section 6 when giving notice of proposed remedial action they are required to serve a schedule of remedial works which must specify:

“(a) the works which the Authority 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 Authority consider it would be reasonable for any person to incur in order to secure that the work is executed.”

[9]The claimant may notify the Authority that he does not agree the schedule, and, if agreement is not reached between them within 28 days, either of them may refer the matter to the Lands Tribunal, which may determine the works and costs to be specified in the schedule.

[10]Under section 7, where the Authority are under an obligation to execute remedial works, they must do so as soon as reasonably practicable after the schedule of remedial works comes into effect. Under section 8, if the claimant notifies the Authority that he wishes to execute any of the remedial works himself or to have them executed by a person specified, the Authority may elect to make a payment equal to the costs specified in relation to those works in the schedule. Subsection (7) provides that the Authority must not unreasonably refuse any request to make such an election.

[11]Section 10 deals with discretionary depreciation payments. As relevant, it provides:

“(1) In any case to which this section applies the Authority may elect to make a payment equal to the amount of the depreciation in the value of the damaged property caused by the damage (‘the depreciation 6 amount’) instead of executing any remedial works or making any payment in lieu. (2) This section applies to the following cases – (a) where the aggregate amount of the costs specified in the schedule of remedial works exceeds the depreciation amount by at least 20 per cent …”

[12]Section 11 deals with obligatory depreciation payments. Subsection (3) provides:

“(3) Where in the case of any property affected by subsidence damage – (a) remedial works have been executed; but (b) there is a depreciation in the value of the property caused by any damage the making good of which to the reasonable satisfaction of the claimant and any other person interested was not reasonably practicable, The Authority shall make in respect of the property a payment equal to the amount of that depreciation.”

[13]The amount of a depreciation payment is determined under Schedule 1. This provides:

“2(1) For any purposes of section 10 or 11 of this Act, the value of the unit of property at any time shall be taken to be the amount which it might be expected to realise in the state in which it is at that time on a sale effected at that time. (2) In the case of property comprising land or buildings the sale referred to in sub-paragraph (1) above is the sale of the fee simple in the open market and with vacant possession … 3(1) For the purposes of section 10 or 11 of this Act the amount of the depreciation in the value of a unit of property caused by any subsidence damage shall be taken to be the amount by which the value of the property at the relevant time is less than what would have been its value at that time (determined in accordance with paragraph 2 above) if it had not been affected by the damage.”

[14]Section 40 makes provision about disputes. It provides:

“(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 Lands Tribunal. 7 (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 Authority 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 Authority 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 Authority to carry out any such obligations.”

The landslip

[15]A major landslip on the Back Hills occurred, as Judge Levy found in his preliminary decision, in 1936. The land slipped from the top of the escarpment at the rear of the High Street houses down towards the bottom of the slope in New Station Road. The gardens of some of the houses in High Street lost several metres of land and a prominent scar was left. The landslip that gives rise to the present claims was similar to this earlier one. It began in the 1980s when cracking in garden walls at the back of High Street houses was noticed. Further movements in the gardens became widespread in early 1991 and large scale displacement occurred in the summer of 1993. It was a compound type of failure consisting, firstly, of a block of strata subsiding at a steep angle between the rear scarp in the gardens of the High Street properties and a counterscarp at the foot of the escarpment and, secondly, a displaced footslope being pushed outwards by the forces created by the subsiding block.

[16]The geology of the Bolsover escarpment consists of about 10m of Magnesian Limestone overlying about 20m of Lower Permian Marl and less than a metre of Permian Breccia, above the Middle Coal Measures. The limestone is moderately strong, in contrast to the weaker Permian strata, but it contains joints that are likely to have been enlarged by stress relief as a result of valley formation solution and cambering. Mining subsidence would have further affected these joints, and joint opening can cause soils within the joints to be washed out, with consequential local collapses of the surface. The landslip was composed of a breaking out of a block of the Magnesian Limestone and the displacement downhill of this and a more extensive part of the lower Permian Marl, to depths of up to 25m.

[17]During the landslip parts of the rear gardens of the High Street claimants’ houses slowly subsided between about 3m and 4m, taking with them boundary walls 8 and out buildings. At number 39, where the claimant Mr Wragg had carried on a horticultural business on the land behind his house, a large greenhouse ended as a crumpled wreck at the lower level and two others were damaged. Outbuildings at the rear of other houses were damaged also, and the rear face of the landslip came to within 3m of the chapel of rest at Mrs Hope’s funeral directors’ premises at number

[55]Virtually the whole of the garden of Mrs Langley’s house, about 20m in length, was lost. Surprise View steps were rendered impassable. As I saw on my view, the small cliff face left by the landslip is unsightly and in places undoubtedly dangerous. Ravelling – the crumbling of the face owing to weathering of the rock – is taking place. There is a fissure in the higher ground, a few metres back from the face, extending from the garden of number 37 to the garden of number 51, and running beneath greenhouses, outbuildings and boundary walls, which show signs of cracking, some of it severe. Ten houses in New Station Road had to be demolished and their occupants rehoused. The extensive garden of Mr and Mrs Cordery at number 43 was severely damaged, with terracing and walls destroyed.

[18]Derbyshire Consulting Engineers (DCE), an agency of Derbyshire County Council, carried out ground investigations within the area of the landslip in 1993, and in 1994 they produced a report that reviewed potential solutions to the instability. In view of the risk to property from the landslip, funding was subsequently made available through English Partnerships (EP) for corrective works. A scheme of stabilisation was implemented in 1996. It consisted of arrays of fan drains drilled from five pits established on the footslope of the landslip. From each pit between 8 and 10 fan drains were constructed beneath the escarpment at gradients of between 1 in 15 and 1 in 100. The drains were between 60 m and 100m long and passed through the landslip into the undisturbed Lower Permian Marl beneath the High Street properties.

[19]The purpose of the works carried out by DCE was to increase the factor of safety by lowering the piezometric head (ie the ground water pressure) over the lower part of the landslip, by draining water horizons in the landslip material and by intercepting water travelling down the slip plane. It was a matter of dispute between the parties whether these works have had a significant effect on the stability of the slope. I refer to this later, and also to the proposals that have been made for dealing with the ravelling of the cliff face. The claims

[20]The High Street claimants, with the exception of Mrs Handley of number 51, all served damage notices under section 3 of the Act on various dates in 1992. In each case the Coal Authority gave notice under section 4 in February or March 1993 indicating that they did not agree that they had a remedial obligation. Mrs Handley’s damage notice was served in November 1994 and was rejected in March 1995. Further damage notices were served on behalf of each of the other High Street claimants in April 1995, and these were all rejected. The notices referred to items of damage that included cracking to walls and ceilings of the house and other damage to 9 them, cracking to the walls of outbuildings and greenhouses and to paths and garden walls, the loss of garden land and a fissure in the remaining land.

[21]The claimants gave notices of reference to this Tribunal in January 1996. They identified as the question for determination whether the Coal Authority was in breach of its obligation under section 2(1) of the 1991 Act and, if so, what consequential orders should be made under section 40(3). Judge Levy gave his decision on liability in January 1999. On 13 July 2000 the Authority’s solicitors wrote to each claimant purporting to give notice pursuant to section 4(2) identifying the kinds of remedial action available to the Authority; enclosing a costed schedule of remedial works (which in each case were confined to the re-grading of the garden land and associated works); and purporting to make under section 10 an election to make a depreciation payment rather than to carry out the remedial works. I say “purporting” because it was a matter in issue between the parties whether or not it was then too late for the Authority to exercise those particular statutory powers.

[22]The principal way in which the claims of the owners of the High Street properties are put is that the Coal Authority should be required in each case to make a payment equal to the diminution in value of the property. Such an award, Mr Wardell says, should be made as one of damages, but it could also be made under section 10. The measure of the diminution in value is said to be the difference, as at the valuation date, between the value of the property at that date and the value that it would have had if the landslip had not occurred.

[23]The Coal Authority maintain the stance that they took in their solicitors’ letters of 13 July 2000, that they should in each case make a depreciation payment only, since the cost of repairs would exceed the depreciation amount by more than 20%. The principal stance taken by each party can be seen, expressed in money terms, in the following table: Table 1: Claims and offers High Street number 1 Claim (depreciation) £ 2 Coal Authority offer (depreciation) £ 3 Coal Authority cost of repairs £ 37 125,000 3,000 21,437 39 100,000 6,800 20,458 45 27,500 1,000 18,008 47 110,000 29,000 63,161 49 90,000 2,200 36,944 51 67,500 100 11,823 55 160,000 400 26,017

[24]In the event that the claimants’ approach to the measure of diminution in value is held not to be correct, they seek an alternative order. The formulation of this alternative changed during the course of the hearing, but in its final form it contained three elements, which can most usefully be set out in the following sequence: 10(a) an order that the Authority pay to each owner the cost of remedial works to their house;

(b) an order that the authority carry out a re-grading scheme (or, in the case of number 55, insert soil nails) to prevent any further ravelling of the face ;

(c) an order that the authority make a depreciation payment under section 11(3) to each owner in respect of the residual depreciation in value of the property from damage that it is not reasonably practicable to make good to their reasonable satisfaction.

[25]In the case of the High Street properties, after noting the general submissions of the parties, I will consider in turn the matters that arise in relation to the remedial works to the land, the damage to the buildings, and depreciation.

[26]There are three outstanding claims among the New Station Road properties. The point at issue in each case is different. Mr and Mrs Dixon, the former owners of number 69, vacated their house in May 1996 following a report by structural engineers to the insurers’ loss adjusters that the property would have to be demolished. In the event the house was not demolished and Mr and Mrs Dixon sold it for £26,500. It is agreed that undamaged the house was worth £69,000. The claimants say that the Coal Authority should be ordered to pay, as damages, the difference between these two amounts. As with the High Street claimants, on 13 July 2000 the Authority purportedly served notice pursuant to section 4(2). They enclosed a schedule of remedial works totalling £6,655.88, and a report of the District Valuer assessing the amount of depreciation at £5,300. They purported to make an election under section 10 and offered this latter sum as compensation. At the hearing the Authority said that the ceiling of the claimants’ entitlement must be the cost of the remedial works.

[27]Mr and Mrs Cordery have a large garden at their bungalow, 43 New Station Road. It rises behind the house up the Back Hills. It was effectively destroyed as a garden in the landslip. They claimed £71,633.53 as the amount spent on restoring the garden. The Authority said that this amount was out of all proportion to the value of the house, and their final stance, adopted in Mr Darling’s closing, was that the global figure of £10,000 should be awarded as representing what was reasonable.

[28]A small dispute arises in relation to the claim of Mr Sabin of 71 New Station Road. His claim is for £18,733.82 as the cost of repairs carried out to his house. The Authority offered £15,812, but ultimately they disputed only two specific items of the claim totalling £1,095.10. The witnesses

[29]For the claimants Mr Wardell called five witnesses: Howard John Siddle BSc FGS CGeol, Chief Geologist of the Halcrow Group of Consulting Engineers, who 11 gave evidence on the mechanism of the landslip, the present stability of the area and the effects of drainage works carried out by Derbyshire Civil Engineers, and the corrective works to secure the rear gardens of the High Street properties; Gordon Fisher FRICS, a director of Chesterton Residential Valuation and Development at Nottingham, who gave valuation evidence on the High Street properties and 69 New Station Road; John Cowen MA CEng MICE, Structural Engineer of Halcrow Group Ltd, who gave evidence on the damage suffered by the High Street properties and whether that damage was caused by mining subsidence; Roger Batham ACII FCILA CIP, a loss adjuster with Cunningham Lindsay, who gave evidence in relation to 69 New Station Road; and Peter Cordery, the owner of 43 New Station Road. In addition Mr Wardell relied on witness statements by James Dickson, the joint owner until 10 August 2001 of 69 New Station Road; Jean Hope, the owner of 55 High Street and proprietor of the funeral director’s business carried on there; Noel Frederick Sabin, the joint owner of 71 New Station Road; and Michael Wickstead Langley, the son of Mrs Langley, the owner of 45 High Street.

[30]Mr Darling called Paul Swinney BEng CEng MICE MIStructE FIHT, a director of Burks Green, engineers and architects, who gave evidence on his inspection of the High Street properties and 69 New Station Road and his opinion on whether damage to those houses was the result of mining subsidence; and Keith Trussell MRICS, District Valuer in the Central Derby Valuation Office, who gave valuation evidence in relation to the High Street properties and 69 New Station Road.

[31]In addition to this evidence the parties invited me to take into account expert reports on the costs of repairs to the buildings: on behalf of the claimants, by David W Rabone MAPS of Davis Langdon and Everest, and, on behalf of the Authority, by Robert Allan Pilmore of Gleeds. High Street properties: the submissions

[32]The primary way in which Mr Wardell put the case for the High Street claimants was to say that they should be awarded damages in relation to each property equal to the depreciation caused by the landslip, although he said that it was immaterial whether an award was made as damages or as a depreciation payment under section 10. Mr Wardell based his contention that the proper order for the Tribunal to make was one of damages for depreciation in value on McAreavey v Coal Authority

(2000) 80 P & CR 41

. In that case, claimants whose property had suffered subsidence damage from coal mining works served a damage notice on 30 June 1990 under the corresponding provision in the Coal Mining (Subsidence) Act 1957 on the British Coal Corporation. On 7 October 1991 BCC offered to carry out specified remedial works for damage for which it accepted liability. That excluded damage to the left hand gable end wall. The offer was conditional on its acceptance by the claimant in full and final satisfaction of the claim. The total estimated costs to BCC was just over £3,500. That offer was not accepted. The claimants did not either then or in the next four years refer any dispute to the Tribunal but repeated earlier requests for BCC to purchase the property. BCC refused to do so. In December 1994 the claimant sold the property for £40,000. It would have fetched £115,000 if it had not 12 been damaged. They recovered £75,000 from their insurers, who succeeded to the claimants’ rights by subrogation. The purchaser demolished the property (on a date unknown but before 1 February 1996) and so made it impossible for any repairs to be carried out. By Notice of Reference dated 19 December 1995 the claimants sought the determination by the Tribunal of the question of damages payable to them by the respondent in respect of coal mining subsidence damage.

[33]On those facts, the Court of Appeal (Ward and Clarke LJJ, Peter Gibson LJ dissenting) held that the Tribunal had power to award damages under section 13(3) of the 1957 Act (the equivalent of section 40(3) in the 1991 Act) and that it should have awarded damages in the sum of £75,000. Ward LJ said (at 53-4):

“The critical issue seems to me to be as to the scope of the Board’s duty. Is it as Mr Grime submits, only to execute remedial works, or as Peter Gibson LJ more precisely finds, 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). I do not construe the words in section 13(3)(b) ‘any failure … to carry out any such obligations within a reasonable time’, as imposing a limited duty to repair within a reasonable time, for the breach of which damages are limited to any loss caused by delay. To me those words only define when the duty arises, not its scope. The scope of the duty is to be found in sections 1 and 2. A reasonable time is given for making the election and on taking that decision or on the expiration of the reasonable time, the Board comes under the duty to repair or, in the alternative, to pay. Thus, in my judgment, the tribunal are empowered to award damages for the loss caused by the subsidence. The Board is not confined to a loss caused by a delay in carrying out the repairs. Nor is it confined, as the Member held, to damages which are subsidiary to the primary remedy of remedial works.”

[34]Clarke LJ said (at 57):

“In this case the question arises what order was necessary to give effect to the determination that the damage in dispute was subsidence damage. For the reasons which I have given it follows from that determination that if the Board had discharged its duty under the Act it would either have carried out the repairs by, say, Easter 1992 or it would have formed the opinion that the 13 reasonable cost of repairs would have exceeded the amount of the depreciation in the value of the property caused by the damage and exercised its option under section 1(4) to pay the amount of the depreciation. Thus by, say, Easter 1992 the claimants would have had their property repaired and the depreciation made good by the repairs or they would have received the amount of the depreciation and the depreciation would have been made good by payment. It would not have been necessary to sell the property and it seems clear on the findings of facts of the Lands Tribunal that the property would not have been sold. There is certainly no finding that it was unreasonable to sell the property in circumstances in which the Board had failed to discharge its statutory obligation. In these circumstances I am of the opinion that under section 13(3) of the Act the Lands Tribunal had jurisdiction to award damages in the amount of the depreciation because such an order was ‘necessary to give effect to its determination’ that the damage was caused by subsidence. By doing so it would have put the claimants in the same position in financial terms as if the Board had discharged its obligation under section 1 as it would no doubt have done if it had accepted that the damage was so caused from the outset. To my mind there is nothing in section 13(3) to limit the order which the Lands Tribunal can make in the way suggested by the Tribunal or the Board.”

[35]In his dissenting judgment Peter Gibson LJ said (see at 49) that the 1957 Act gave a limited remedy, which required the Board to effect the remedial works, subject to its rights of election, but which conferred on the claimant the significant advantage of section 13(2) in shifting the burden of proof in relation to what damage was subsidence damage. The Act did not in his view give a general right to damages but specifically limited the damages which could be awarded under section 13(3)(b) to damages in respect of the Board’s failure to perform its obligations within a reasonable time, thereby excluding damages for loss from a cause other than the Board’s failure. He said (at 47) that it was inconceivable that Parliament could have intended by the general words of section 13(3) to deprive BCC of its specifically conferred right of election.

[36]Mr Wardell submitted on the basis of the decision in McAreavey that section 40(3)(b) gave the Tribunal an unfettered discretion to award damages in respect of the Coal Authority’s failure to carry out its obligation under the Act. Both Ward LJ and Clarke LJ were of the view that the election to make a depreciation payment instead of carrying out remedial works had to be made at the time of the Authority’s response to the damage notice. On that analysis, it was far too late for them to make an election. Mr Wardell submitted that it would be just for damages to be awarded rather than that the Authority should implement a scheme of repair since more than 7 years had elapsed since the Authority should have carried out remedial works. The best way to compensate the owners for the distress and inconvenience they had suffered was to award them damages for the depreciation in value. 14

[37]The measure of the depreciation in value, Mr Wardell said, was to be derived from paras 2(1) and (2) and 3(1) of Schedule 1. It was the difference in the open market value of the property before and after it was damaged by coal mining subsidence. In making that comparison regard had to be had to market sentiment, which was an essential element in the concept of open market value. A purchaser in the market would not contemplate buying a High Street property in the absence of an assurance as to the long-term stability of the escarpment. He would not get such an assurance and as a result he would not get mortgage finance for a purchase.

[38]Mr Darling said that the whole scheme of the Act was to compensate claimants for the cost of carrying out works to repair subsidence damage or to make payments where for a number of reasons that damage was not repaired. There was no provision for payment for damage that had not yet occurred or in respect of the risk of damage. That, he said, was clear as a matter of statutory construction, in particular section 2(2)(c) (depreciation payments under section 10 and 11 to be for depreciation in value of the damaged property, and not blighted property or undamaged or repaired property at risk of future damage); section 10, which provided for a depreciation payment instead of executing or paying for remedial works; and section 11(3) (residual depreciation payment instead of remedial works which were not reasonably practicable).

[39]Blight, said Mr Darling, was provided for elsewhere in the Act. Section 29 made express provision for it, by empowering the Secretary of State to make regulations for the purchase of blighted property or the payment of compensation equivalent to the difference between the value of a blighted property and its unblighted value. Regulations had been made, but the circumstances provided for did not apply here. The fact that blight was expressly provided for in section 29 showed that the depreciation payment provisions were not intended to encompass it.

[40]If damage occurred in future as the result of subsidence, Mr Darling said, the provisions of the Act would apply and the Authority would have to repair it or make a payment in lieu and/or a depreciation payment. This reflected the position at common law. A surface owner whose land was damaged by mining subsidence could not recover damages for depreciation in the market value of his property attributable to the risk of future subsidence, but had to wait until the damage or injury actually occurred: West Leigh Colliery v Tunnicliffe

[1908] AC 27

[41]Mr Darling accepted that the Tribunal could not go behind the decision in McAreavey, but he reserved the Authority’s position as to its binding nature in the Court of Appeal and House of Lords. It was critical to appreciate when considering that case that the issue arose because the property in question was demolished after the Corporation had erroneously denied liability. In view of the demolition it was impossible to carry out the repair to the gable wall or to go through the statutory procedure. Damages were awarded in order to put the claimants in the position they would have been in if the Corporation had carried out its statutory obligations. 15

[42]In the light of that decision, Mr Darling submitted, the claimants in the present case should be put in a position no better and no worse than if the Authority had accepted liability rather than denying it. Mr Trussell had approached the matter correctly in valuing the properties as he had, and the agreed cost of the re-grading works was in each case very substantially in excess of the difference between the damaged and the undamaged value. The authority was, he said, entitled to be treated on the basis that it was making a section 10 payment. It had sought to make an election, and it wished to do so.

[43]Mr Wardell also argued that the construction of the Act advanced by the Authority, which, if right, would mean that the claimants could not claim damages for the loss they had suffered through the diminution in value of their properties, was inconsistent with Article 1 of the First Protocol of the European Convention on Human Rights (which now has the force of law under the Human Rights Act 1998). Article 1 of the First Protocol states that every person is entitled to the peaceful enjoyment of his possessions and that no one should be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. Minimal compensation, said Mr Wardell, would not strike a fair balance between the general interest of the community and the protection of the individual’s rights. He referred to Sporrong and Lonnoth v Sweden

(1983) 5 EHRR 35

and Katikaridis v Greece (1997) EHLR 98. Article 14, which prohibits discrimination, gave added support because the claimants were being placed in a worse position than those whose properties had been demolished.

[44]Mr Darling submitted that the events which caused damage to the claimant’s property originated in the 1930s, long before the extraction of coal was in public ownership. The remedies provided by the 1991 Act were available to the claimants as an alternative (at their election) to any common law right that they had. It had reversed the burden of proof. Mr Darling submitted that the Human Rights Act could not result in a higher or more valuable remedy than that provided for when that remedy is a gratuitous one.

[45]In order to deal with these submissions and to put them into a context of factual conclusions I need to address the issues, on the one hand, of the costs of making good the damage and, on the other, the depreciation in value of each property. There are two categories of damage to be considered – the damage to the land caused by the landslip and the damage to the buildings. Depreciation needs to be considered both in the absence of remedial works and on the assumption that particular remedial works are carried out. It is also material to consider, if works to make good the damage are to be carried out, whether these would have to be carried out by the Authority High Street properties: remedial works to the land

[46]A scheme for re-grading the land at the rear of each of the properties, where the landslip had occurred, had been prepared by Gleeds on behalf of the Authority. The work consisted of constructing a stone wall at the foot of the land, cutting back an 16 area of the higher ground and re-grading the ground down to the foot of the land so that a 30 degrees slope was achieved. Topsoil would be stripped at the outset and then later re-spread. In the case of number 39 the greenhouses would be demolished, and outbuildings affected by the re-grading works would be demolished at numbers 45, 47 and 49. In the case of number 55 it was agreed that the proper method of preventing ravelling was not re-grading, but the insertion of soil nails. The works in respect of each property were itemised and costed. The costs were agreed by the claimants. They were (excluding the removal of greenhouses and outbuildings) as follows: Table 2: Agreed costs of remedial works to land High Street number Cost of works £ 37 21,437 39 13,958 45 12,008 47 43,661 49 27,994 51 11,823 55 12,500

[47]There is an important element of the costs in relation to number 47 that appears to me to be questionable. Items F and G in the schedule that was produced allow for the excavation of 1079 cu m. This is 4.7 times the area to be rotovated etc in items H and I (230 sq m). In the case of each of the other properties the ratio of these items is half this amount – 2.35. The plots vary in width, but two of the plots, numbers 37 and 49, are similar in width to number 47. Since the ground levels and the resulting profiles are effectively the same in each case, one would expect that the ratio of volume to area that has been applied to other properties of similar width would apply equally to number 47. The inference that I draw, therefore, is that while the area of items H and I is correct (since it appears consistent with the plan prepared by Chestertons) the volume in items F and G is overstated by a factor of 2. Applying a ratio of 2.35 and taking the resultant volume of 540 cu m, the cost of these items becomes £8883 (instead of £17,749.55) and £4,206 (instead of £8,405.41) respectively. The total in the schedule falls as a result from £63,161.38 to £50,095.42. When items J and K (removal of outbuildings) are deducted from this amount, as they are in the agreed external term contract costs, the amount for number 47 in the table falls to £30,595 from £43,661. I propose to use this lower figure in the rest of this decision.

[48]I have referred earlier to the stabilisation works carried out by DCE in 1996. They consisted of arrays of fan drains drilled from five pits on the footslope of the landslip. Mr Siddle expressed the view that there was no evidence from which it could be confirmed that these works had had a significant effect on the stability of the slope. He was not saying that the works had not improved stability but only that the monitoring was inadequate to prove any authoritative opinion about the long term stability of the slope. He addressed this matter in the context of the view expressed by Mr Fisher that a valuation surveyor would advise his client against a purchase unless 17 “an unqualified assurance as to the long term stability of the ground” was given by a suitably qualified engineer.

[49]In March 1993 DCE had installed a network of markers on and around the landslip to monitor displacements. The readings showed that movement rates reached a maximum in the summer of 1993 and then declined rapidly, so that by 1996, when the DCE drainage works were installed, there was little or no movement occurring. Mr Siddle said that by that time movement had effectively ceased at the foot of the escarpment. Piezometer readings were inconclusive in that certain of the piezometers appeared to be malfunctioning while the decline in water levels shown by one of them was part of a long term trend of reducing water levels between April 1994 and February 1998. He accepted that the view taken by DCE was that the effect of the works had been to improve stability.

[50]On the basis of Mr Siddle’s evidence I conclude that the movement in and below the scarp has effectively ceased and that it is likely that the DCE drainage works will have improved the stability of the slope. The evidence is insufficient to determine the degree of improvement that is likely to have been achieved. An engineer would not give an unqualified assurance about the stability of the slope, but I can see no reason why he should not express a high degree of confidence that stability has been achieved over the sort of period that would be of interest to a prospective purchaser. High Street properties: remedial works to buildings

[51]Mr Harrison-Hall submitted on the Authority’s behalf that the claimants had never provided a detailed list of items of damage that they alleged to be damage within the meaning of the 1991 Act. It was implicit in the provisions that they should do so before section 40(2), placing the onus on the Authority to prove that damage was not subsidence damage, came into play. Under section 3(3) an owner had six years from knowledge of damage to file a damage notice. Under section 4 the Authority had to respond and prepare a schedule under section 6. Under section 6, if an owner disagreed with the schedule, the Act provided for a method by which the schedule might be determined by the Tribunal.

[52]Mr Wardell submitted that the requirement, which was stated in section 3(2) was that the claimant should give in his damage notice such particulars as might be prescribed. I accept this. “Prescribed” (under section 52(1)) means prescribed by regulations, and regulations have been made for this purpose (the Coal Mining Subsidence (Notices and Claims) Regulation 1991). There was no suggestion on the part of the Authority that the particulars required in their standard form damage notice were not those prescribed by the regulations. What a claimant had to insert was:

“Brief description of damage (e.g. walls cracked, windows jammed, etc).”

This is what was done in each case. 18

[53]The duty of the Authority was to respond under section 4. They did so by indicating in each case that they did not agree that they had a remedial obligation in respect of any of the damage specified in the damage notice. They therefore did not prepare a schedule under section 6, and the dispute that is before the Tribunal is in consequence not one arising under that section. The dispute is firstly, whether the damage referred to in the damage notice was subsidence damage, thus giving rise to a remedial obligation, secondly, what the cost is of making good such damage as is subsidence damage, and, thirdly, what order, if any, the Tribunal should make under section 40(3).

[54]Under section 40(2) the claimants have to show that the nature of the damage in respect of which the reference is made and the circumstances are such as to indicate that the damage may be subsidence damage. If they do so, the onus is then on the Authority to show that the damage is not subsidence damage. If it was not clear with sufficient particularity to the Authority what was the damage that had been briefly particularised in the notices of claim and was now the subject of the reference, it was open to them to seek particulars. They did not do so. Mr Cowen in his report of June 2001 set out the damage that he had observed and which he associated with the landslip. It was not suggested that these items of damage went beyond those referred to in the damage notices. Mr Swinney gave his views on the causes of the damage that he had observed and commented on Mr Cowen’s report. Mr Rabone in his reports produced costs for making good the damage to which Mr Cowen referred. No request was made for him to be called so that he could be cross-examined, and I have no reason to assume that his costings were based on a description of the damage that was inadequate for the purpose. In these circumstances the Authority’s assertion that the claims as pursued in these proceedings were insufficiently precise as to enable the Tribunal to make orders under section 40(3) is palpably unfounded.

[55]I propose to deal with the evidence on damage to buildings quite shortly, as I am satisfied that all the damage identified by Mr Cowen as being potentially due to mining subsidence might have been caused by mining subsidence; and I am equally satisfied that the Authority failed to show that it was not. The damage was in each respect such as was likely to have been caused by movement of the walls or floor of the buildings, and given the ground movement associated with mining that had occurred, resulting in the landslip a few metres from the buildings, it is clearly the case, to use the language of section 40(2), that it may be subsidence damage.

[56]Mr Swinney’s evidence essentially contained three responses. The first was that, since the landslip was some metres away from the buildings, none of the damage was due to mining subsidence. He had not, however, understood the mechanism of the landslip and the fact that it was the principal, and not necessarily the only, manifestation of the process of the opening out of cracks in the Magnesian Limestone. The major fissure, some distance back from the face, was another manifestation, and he had not noticed it even though, as I saw on my view, it was obvious. He recorded, in the case of numbers 37 and 39:

“No evidence was seen of any disturbance of the ground between the rear scarp and the property”

. He had not read any of the evidence on the preliminary issue dealing with the process of ground movement. It is clear to 19 me, given the mechanism of ground movement identified by Mr Siddle, that some movement associated with cracks in the limestone beneath the buildings could have occurred.

[57]Mr Swinney’s second response was that certain of the cracks in the buildings were old, by which he meant pre-1991. Mr Siddle’s evidence was, however, that there were precursor events in the 1980s when the cracking of garden walls was noticed, so that merely to date a crack as pre-1991 would not show that it was not due to mining subsidence. The third response was to identify in relation to particular items of damage another possible cause than mining subsidence and to express the view that the other possible cause was more likely to have been the effective one. Thus the distortion and cracking of the floor tiles in number 37 was, he thought, due to years of cleaning having eroded the joints. Merely, however, to identify another possible cause is insufficient to discharge the onus, and in no instance was Mr Swinney able to satisfy me that the alternative possible cause was more probable than mining subsidence.

[58]As for the costs of carrying out repairs to the damage identified by Mr Cowen, Mr Rabone says in his supplementary report:

“All the items have been treated as ‘Spot’ items as the full extent of the repair works are not clear or agreed at this stage. The pricing reflects the abnormal and commercial realities likely to be experienced in this type of scheme.”

He gives examples of the hourly costs he has assumed for particular types of repair. Mr Pilmore in his supplementary report of July 2001 – “in an attempt to facilitate some sort of comparison” – sets out the Coal Authority Term Contract rates for the same types of repair. These, however, are expressed not as hourly costs but as costs per square metre. They do not allow me to make any useful comparison between his views and those of Mr Cowen.

[59]I have concluded that the right approach for me to adopt on building costs, having accepted Mr Cowen’s evidence on the damage, is to treat Mr Rabone’s repair costs for each property as maximum costs for making good the damage that I have accepted as being subsidence damage. This enables me to take account of them in determining the appropriate orders for me to make in relation to each claim as a whole – whether the Authority should be ordered to make good the damage, or make a payment in lieu, or make a depreciation payment, or pay damages, or a combination of these. My determination in respect of the building repair costs, as I say later, is that the Authority should make payments in lieu. In view of the fact that neither the detail of the works nor their cost is agreed, however, it will be necessary for schedules of these now to be prepared on the basis of my determination that the damage identified by Mr Cowen is subsidence damage.

[60]I set out below in Table 3 a summary of the costs of making good the damage to the High Street properties in the light of the conclusions I have come to. The figures can most readily be understood by reference to Appendix 1 in Mr Rabone’s Second Supplementary Report of 23 October 2001. Column 1 contains the external term contract costs obtained by the Authority and agreed between the parties, except that I have reduced the figure for 47 High Street from £43,661 to £30,595 to correct the 20 apparent error in the volume of material moved in the re-grading process. As far as column 2 is concerned, I was told that the quantity surveyors had agreed on a global figure of £20,000 for the 7 properties, as compared with the total of Gleeds’ on costs for the individual properties of £38,641. In order to reach figures for the individual properties I have in each case multiplied the figures in Mr Rabone’s column 2 by 20,000 and divided by 38,641. Because of the alteration in column 1 to number 47 this will no doubt overstate the on-costs relating to that property and understate those for the other properties.

[61]Column 3 is Mr Rabone’s column 4. The amounts are agreed. Since I envisage that the re-grading works and the works of demolition would be carried out by the Authority, I consider that fees should be added to the costs of these at 10%, Mr Pilmore’s figure at para 3.7 of his supplementary report. Column 5 is Mr Rabone’s column 3, and column 6 is Mr Rabone’s column 5. I have allowed nothing for the replacement of the demolished greenhouses and outbuildings as I can see no evidence that there is any wish on the part of the owners to replace them. In column 7 I have added 6% to the costs in columns 5 and 6 to allow for increases in building costs. I accept Mr Rabone’s views on this, but I do not accept that any such addition needs to be made to the re-grading costs, which, as Mr Pilmore says, hold good up to December 2002. On the assumption that the claimants would carry out the works to the buildings I have also added in column 7 a further 12.5% for fees on the basis referred to by Mr Pilmore in his para 3.7. Column 8 is VAT. Column 9 is the total of the 7 preceding columns. Table 3: Costs Summary High Street number 1 Re- grading costs £ 2 Re- grading on costs £ 3 Ancillary buildings demolitio n £ 4 Fees (cols 1+2+3 x 10%) £ 5 Dwelling repair £ 6 Ancillary buildings repair £ 7 Cols 5 & 6 x 6% x 12.5% £ 8 VAT (cols 1-7 x 17.5%) £ 9 Total Cols 1-8 £ 37 21,437 2,952 2,438 7,799 712 1,638 6,470 43,446 39 13,958 2,251 6,000 2,220 1,413 6,301 1,484 5,884 39,551 45 12,008 1,918 6,000 1,992 7,076 5,278 2,378 6,413 43,058 47 30,595 7,866 20,000 5,846 4,119 3,744 1,513 12,894 86,577 49 27,994 3,388 7,000 3,838 1,632 3,650 1,016 8,490 57,008 51 11,823 1,623 1,344 4,369 831 1,535 3,766 25,291 55 12,500 1,250 1,121 14,615 3,029 5,690 38,205 High Street properties: depreciation

[62]Mr Fisher gave evidence of the open market value of each of the properties as at January 2001, firstly on the basis that the landslip had not occurred and, secondly, taking into account all the circumstances existing at that time. He valued each property as an entity, including number 39, which had contained a horticultural business as well as a house, number 47, which contains a builders yard as well as a house, and number 55, which is used for Mrs Hope’s funeral director’s business as well as a house. His valuations were as follows: 21 Table 4: Mr Fisher - depreciation High Street number 1 Without the landslip £ 2 In present circumstances £ 3 Depreciation £ 37 175,000 50,000 125,000 39 152,250 45,000 107,250 45 42,500 15,000 27,500 47 145,000 35,000 110,000 49 130,000 40,000 90,000 51 97,500 30,000 67,500 55 218,000 65,000 153,000

[63]Mr Fisher has been in practice for over 40 years. He has had extensive experience of the East Midlands domestic property market, including the time when coal mining operations were very extensive and a considerable number of properties suffered from mining subsidence. More recently he has advised both coal mining companies and property owners on problems of mining subsidence in individual properties, mainly domestic, and has negotiated the settlement of claims. He has had considerable experience of mortgaging houses.

[64]In order to make his valuation Mr Fisher had visited Bolsover on several occasions. He had inspected all the properties internally and externally. He had spoken to three estate agents operating in the local market, particularly to Timothy Wilson of Wilson & Co. On the question of the mortgageability of the properties he had spoken to Mr Wilson and to Derby Building Society. On the question of insurance he had spoken to an insurance broker, Alexander Forbes of Birmingham.

[65]Mr Fisher said that the landslip had left a vertical cliff behind the High Street properties so that further erosion appeared to be inevitable. Within several of the gardens there were more obvious fissures in the ground, indicating that movement had occurred some distance back from the cliff face. In his experience as a valuation surveyor the presence of these features would cause a surveyor acting for a purchaser to advise against a purchase unless an unqualified assurance as to the long term stability of the ground were given by a properly experienced engineer. The situation was completely abnormal as an instance of mining subsidence and was beyond what purchasers would be prepared to contemplate. Although in theory the Coal Authority would remain responsible for any future damage, this would still not encourage purchasers to buy one of these properties, not least in view of the nearly 10 years of negotiation and litigation in the present case.

[66]Another vital factor was the purchaser’s inability to obtain full insurance cover and mortgage finance. In his opinion the properties were virtually unsaleable in the normal market, and would only be bought by investors and speculators who would let them. His “in present circumstances” valuations were derived from a capitalisation of the rents that, after making inquiries of local agents, he judged to be obtainable. In cross-examination Mr Fisher said that if full insurance cover and a mortgage were 22 available, a residual blighting effect from the landslip would still remain and this would be reflected in a 20% reduction, so that, in the case of number 37, the £175,000 “without landslip” value would be reduced to £140,000.

[67]Mr Fisher drew attention to the fact that, in consequence of the landslip the council tax bandings of the High Street houses had been reduced to Band A, covering values up to £40,000. Previously 37 High Street had been in Band F (£120,000 to £160,000), number 39 in Band D (£68,000 to £88,000), number 45 in Band B (£40,000 to £52,000) and numbers 47, 49, 51 and 55 in Band E (£88,000 to £120,000). Four of the reductions had been made in August/September 1994 and the other three in February 1996. Mr Fisher said that, from inquiries he had made, values had been depreciated over a fairly wide area near the landslip, and council tax reductions had been given to houses in this area. Values in Castle Lane and the Castle Lane end of North Station Road, where there had been no ground movement, were recovering, but he saw no prospect of values recovering in High Street so long as the present uncertainty existed.

[68]Before the hearing the Authority had lodged reports by Mr Trussell dated 6 July 2000 giving in relation to the High Street properties and 69 New Station Road his opinions of value. In each instance he produced two valuations: firstly, the value of the freehold interest disregarding all effects of coal mining subsidence to the property; and, secondly, the value of the interest taking account of mining subsidence to the property. In the case of numbers 37, 47, 51 and 55 High Street the only defect he treated as having been caused by mining subsidence was “loss of part of rear garden” or “loss of garden land”. In the case of number 39 the defects were stated to be:

“loss of one greenhouse and part of second greenhouse”, “loss of remaining greenhouses due to proposed re-grading of land”, and “loss of land”; in the case of number 45, “loss of garden land” and “loss of outbuilding through proposed re-grading of land”; and in the case of number 49, “loss of garden land” and “loss of outbuilding”

. His opinions on the amount of the depreciation were as follows: Table 5: Mr Trussell - depreciation High Street number Loss or depreciation £ 37 3,000 39 (house) Nil 39 (business) 7,200 45 1,000 47 (house) 1,500 47 (business) 27,500 49 2,200 51 100 55 (house) Nil 55 (business) 400

[69]When giving evidence in chief Mr Fisher was asked to address himself to Mr Trussell’s depreciation figures. He pointed out that Mr Trussell was valuing on a completely different basis from the one on which his own assessments of depreciation 23 had been given in that Mr Trussell made the assumption that, as the Authority would be responsible for damage arising from any further movement, the market would make no allowance for the possibility that such further movement might occur. Mr Fisher gave his own figures to set against those of Mr Trussell. Mr Darling did not cross-examine on these figures, and he said he called no valuation evidence. Early in his closing submissions, however, it became clear that the parties had significantly conflicting understandings of what assumptions Mr Fisher had made in coming to the deprecation figures he had given. Mr Darling’s understanding was that the figures assumed that no re-grading work to the gardens had been carried out. Mr Wardell’s understanding was that Mr Fisher had assumed re-grading. In view of this and the fact that it was not possible to resolve the matter on the basis of the various notes of evidence, I gave leave for Mr Fisher to be re-called and for Mr Trussell also to be called. Each of them then produced a supplementary report, and their evidence was given at an adjourned hearing. I will return to this evidence shortly.

[70]In dealing with Mr Fisher’s “in present circumstances” values (column 2 of Table 4 above) Mr Darling said that there was “absolutely no evidence other than instinct provided by Mr Fisher of difficulties with insurability and mortgageability”. I find it impossible to reject this part of Mr Fisher’s evidence on the basis of this dismissive assertion. Mr Fisher has considerable experience of the sale and mortgaging of residential properties in coal-mining areas in the East Midlands. His view that there would at the present time be such difficulties in obtaining insurance and mortgage finance for these properties that they would be virtually unsaleable in the normal market cannot be dismissed as implausible. It was expressed in his report in January 2001, and the Authority chose not to call any evidence to gainsay it. In the absence of any other relevant evidence I accept his “in present circumstances” valuations of the High Street properties.

[71]What I cannot accept, however, is that the amount of the depreciation in the values of these properties for the purposes of the 1991 Act is to be measured by deducting these “in present circumstances” values from the agreed “without the landslip” values. Under para 3(1) of Schedule 1 the amount of the depreciation is the amount by which the value of the property is less that what would have been its value if it had not been affected by the damage. What has to be left out of account in making this comparison is not the effect on value of the landslip but the effect on value of the damage to the particular property under consideration. The measure of depreciation is the effect that the damage suffered by the property had in terms of the value of the property.

[72]The landslip covered a substantial area of the Back Hills as well as properties in High Street and New Station Road, a number of which had to be demolished. The evidence is that this affected house prices in Bolsover over quite a wide area, and that many houses, physically unaffected in any way by the landslip, had their council tax bandings reduced in recognition of this. The reason for these falls in value was that the landslip created in the minds of prospective purchasers the fear that the houses 24 might be damaged by some similar occurrence in future. This is the effect that has been referred to as blight.

[73]What the valuer has to do in determining the amount of depreciation under the Act in the present case, in my judgment, is to disregard this general blighting effect that the landslip has had and to decide how much less the property is worth in its damaged state than it would have been worth undamaged. If, undamaged, it would have been worth less by reason of this general blighting effect, that reduced value is its undamaged value for the purposes of the Act. The amount of depreciation is the difference between this value and the actual value of the property in its damaged state.

[74]If the effect of the damage to the property is to create in the minds of prospective purchasers, their advisers, and insurers and mortgagees, the fear that further damage might be suffered in future, I see no reason, either on the basis of the wording of the Act or in the light of its purposes, why this should not be taken into account if it is a factor that in practice diminishes the value of the property. I therefore reject the approach adopted by the Authority, who say that the fear of future damage must always be entirely discounted in measuring depreciation. In the case of each of the High Street properties I am satisfied that the damage to the land, which has left what Mr Fisher calls a cliff face with a fissure across the remaining higher ground, has substantially reduced the value of the property. This is due not only to the unsightliness and the hazards that have resulted and the loss of usable land, but, more significantly, to the doubts that the damage creates in the minds of prospective purchasers and their advisers as to the future stability of the land on which the house stands. I am satisfied that the removal of the visible outward signs of damage will substantially remove the reduction in value that has occurred. This is a matter that I return to later.

[75]Mr Fisher gave two sets of depreciation figures. The first assumed that the escarpment was stable and that re-grading and demolition works had not been and did not have to be carried out. The second set of figures comprised the ones that he had given in chief. They assumed the escarpment was stable and that re-grading and demolition works had been carried out or, in the case of number 55, that soil nails had been inserted. Mr Trussell produced a further set of figures setting out his opinion of the residual depreciation in each case assuming that remedial works had been carried out by the Coal Authority. His earlier figures had, he said, assumed that no such remedial works had been carried out. Both sets of figures assumed that no further movement would be experienced due to past or future mining activities.

[76]The two valuers thus produced figures on the same alternative assumption. Although in his original valuations Mr Trussell treated separately the business and residential elements in the three mixed use premises (numbers 39, 49 and 55), his figures in what he called his section 11(3) valuations treated each of these premises compositely. Mr Fisher did not distinguish between the business and the residential elements and I see no need to do so. The figures produced by the two valuers were as follows: 25 Table 6: Depreciation arising from damage to land In existing state After re-grading High Street number Mr Fisher £ Mr Trussell £ Mr Fisher £ Mr Trussell £ 37 16,000 3,000 16,500 Nil 39 11,750 7,200 10,000 11,500 45 4,350 1,000 2,750 350 47 27,500 29,000 32,000 27,500 49 8,750 2,200 5,500 350 51 4,250 100 1,500 Nil 55 5,000 400 2,000 400

[77]Mr Fisher said that he had reached his figures by starting with the assumption that the plot value of a house was 30% of its total value. He had taken the unblighted undamaged value in each case and had made an appropriate reduction in the plot value to reflect the loss of land. The range of these reductions was from 25% to 45%. Mr Trussell said that he had had regard to sales of garden land in Bolsover District. He referred to 6 such sales, and showed that the consideration paid in each case devalued to between £6.18 and £13.59 per sq m. For his “in existing state” valuations he applied a value of £12 per sq m to the area displaced in the case of numbers 37, 47, 49, 51 and 55, and £6 for number 45 because of the lower value category of this property, as he put it. In the case of number 39 £7,200 was in respect of the loss of the greenhouses. For number 47 he had allowed £30,000 for the loss of the workshop building and had reduced this to reflect the net increase in garden land that removal of the building produced.

[78]For his “after re-grading” valuations Mr Trussell made no reduction for any loss of land (except in the case of number 55) for the reason that no land had been lost, nor did he think it appropriate to make a reduction because part of the garden would be sloping at 30 degrees. There were, he said, many steep gardens. In the case of number 39 he had allowed £14,000 for the loss of all the greenhouses but had reduced this to reflect the garden land gained, taking the price of £12 per sq m. He had approached number 47 similarly, reduced the £30,000 for the loss of the workshop by £2,500 to reflect the garden land gained. He had allowed £350 in the case of number 45 for the loss of domestic outbuildings. In the case of number 55, where there was no proposed re-grading, he had used the same figure as in his “in existing state” valuation to reflect the loss of garden land.

[79]I find it surprising that both valuers should take the view that the depreciation in the value of the property in its existing state is similar to the depreciation in value that there would be after the remedial works were carried out. It was clear from my inspection that the crumbling cliff face is both unsightly and dangerous, and I cannot believe that a purchaser would pay the same or almost the same for one of these properties as he would if the land had been re-graded so as to remove the unsightliness and the danger. Of course re-grading would result in land that is now level at the top of the cliff face becoming quite steeply sloping, but, though of reduced utility, it would be capable of being planted and enjoyed as garden land. I accept 26 Mr Fisher’s “in existing state” valuations which do not seem to me to over-estimate at all the present damage to the properties. After re-grading, however, the reduction in value would, in my view, be significantly less. The most useful approach to valuation of the four purely domestic properties is, in my view, to take a percentage reduction in the blighted undamaged value of the property (a term which I explain below). The effect is greatest in the case of number 45 where virtually all the garden, previously flat becomes steeply sloping. Photographs produced by Mr Michael Langley show what an important element of the property the garden formed. I accept Mr Fisher’s assessment of £2,750 or 8% of the value of the property as the measure of the reduction. In the case of number 37, much of the garden becomes sloping but a substantial flat area remains immediately to the rear of the house. I assess the reduction in this case at 3% or £4,200. The effect on number 51 is very much less, and I assess it at 1% or £750. Number 49 suffers more than number 51 but less than number 37, but it loses a brick and iron conservatory that is an obvious amenity. I take a 2% reduction (£2,080) and increase this to £3,500 to reflect the loss of the conservatory. For number 55 I accept Mr Fisher’s £2,000 as reflecting the particular features of that case.

[80]Different considerations seem to me to arise in the case of numbers 39, where the commercial greenhouses are lost, and number 47, where a large workshop is removed. The effect of removing these buildings will in each case give to the residential property a rear garden that it did not previously have, with the views to the west that are at present enjoyed by the residents of numbers 37, 49 and 51, and were previously enjoyed from the garden of number 45. Mr Trussell makes an allowance for the garden land gained, but in a way that reflects quite inadequately, in my view, the degree of benefit that the properties will derive. I assess the benefit in each case at 7½% of the blighted undamaged value of the property, after reduction for the value of the greenhouses (£14,000) and the workshop (£30,000). These amounts are £8,085 in the case of number 39, which I round to £8,000, giving a net reduction of £6,000. In the case of number 49 the gain is £6,450, or say £6,500, so that, taking account of the £30,000 for the workshop, the net reduction is £23,500.

[81]I have said earlier that I am satisfied that if the visual effects of the landslip are removed, with the land being properly re-graded, there will be no greater inhibition to mortgaging or insuring the property in question than for those properties nearby in Bolsover that were blighted by the landslip despite being undamaged. The value of those properties, Mr Fisher said, is recovering, and I see no reason why, provided in each case the re-grading works are carried out, the claimants’ properties also should not recover their value (subject to the residual depreciation arising from the fact that the land will not have been restored to its original level). I do not accept Mr Fisher’s view that an engineer’s report expressing certainty as to the future stability of the land would be required before a property would become mortgageable. If the mortgagee or insurer did seek specialist advice, he would be told that the ravelling problem had been cured by re-grading, that in the areas where DCE had monitored there was no evidence of continued movement, and that DCE, funded by English Partnerships, had installed a fan drainage system with the object of preventing any further landslip. I have said that can see no reason why an engineer should not express a high degree of confidence that stability has been achieved over the sort of period that would be of 27 interest to a prospective purchaser. It does not seem to me that the mortgagee or insurer would in those circumstances regard the property as an unacceptable risk, any more than he would so consider other properties in the vicinity that had not been affected by the 1990s landslip but had been blighted by the fear of possible future damage. I accept that, for a time, there might be a residual blighting effect from the landslip even though full insurance cover and a mortgage were available. Mr Fisher said that this would be reflected in a 20% reduction in value, and I accept his assessment in this respect.

[82]My conclusions on value are summarised in Table 7 below. In each case I have taken values as at July 2001. Column 1 contains the value of each property, undamaged and unaffected by the blighting effects of the landslip. Column 2 shows the value that each property would have if all the damage was remedied. The residual blighting effect I have referred to would remain, and the values would therefore be 20% lower than those in column 1. Column 3 contains Mr Fisher’s current values, which I accept. Column 4 is the difference between columns 2 and 3. It represents what I find to be the depreciation amount for the purposes of section 10. Column 5 contains the residual depreciation that I find would remain after the re-grading works were carried out, so that in each case it represents the amount of the residual depreciation payment that would fall to be made under section 11(3)(b). Table 7: Values as determined High Street number 1 Unblighted undamaged value £ 2 Blighted undamaged value £ 3 Damaged value £ 4 Depreciation amount £ 5 Section 11(3)(b) depreciation £ 37 175,000 140,000 50,000 90,000 4,200 39 145,000 121,800 45,000 76,800 6,000 45 42,500 34,000 15,000 19,000 2,750 47 145,000 116,000 35,000 81,000 23,500 49 130,000 104,000 40,000 64,000 3,500 51 97,500 78,000 30,000 48,000 750 55 225,000 174,400 65,000 109,400 2,000 High Street properties: the remedies

[83]Section 40(3) provides that the Tribunal may make such orders as may be necessary to give effect to the determinations that it makes on the questions arising under the Act which are referred to it for decision. Paragraph (a) and (b) particularise two types of order that may be made – requiring the Authority to carry out any obligations imposed by them by the Act, and awarding damages in respect of any failure to carry out any such obligations.

[84]What are the questions that have been referred to the Tribunal for decision? It appears to me that the notices of reference expressly or impliedly raise the following questions in relation to each of the High Street properties: 28(a) Was the physical displacement of the garden land in the landslip subsidence damage (as defined in section 1(1))?

(b) What, if any, of the damage to the buildings referred to in the claimants’ damage notices was subsidence damage?

(d) What, if any, obligations under the Act should the Authority be ordered to carry out?

(e) Should damages be awarded? If so, how much?

[85]Question (a) has been determined by Judge Levy QC’s determination of the preliminary issue. The determination of that preliminary issue did not, however, decide question (b); but the Tribunal’s findings on the geological mechanism that caused the landslip are, as I have said, material to a consideration of this second question. I have decided that the damage identified by Mr Cowen is subsidence damage. In order to answer the remaining questions I need to take account of my conclusions on the cost of remedial works and on value and relate these to the statutory provisions.

[86]The Act confers on the Authority certain rights of election. They may under section 8 elect to make a payment in respect of the cost of remedial works where they have received the necessary request from a claimant. They may not, however, unreasonably refuse such a request (subsection (7)), and refusal is to be regarded as unreasonable if it is of a request received before the Corporation have begun remedial works (subsection (8)) unless 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. Under section 10 the Authority may elect to make a depreciation payment instead of executing remedial works where the total cost of the works exceeds the depreciation amount by at least 20%.

[87]The claimants argued that, if their contention in relation to depreciation was held to be right, they should either be awarded damages in the amount of the depreciation in each case or the Authority should be ordered to make a payment under section 10 of an amount equal to the depreciation. The latter alternative does not appear to me to be one that is open to the Tribunal. The right to elect under section 10 is conferred on the Authority, and it is not in my view open to the Tribunal to exercise that right on the Authority’s behalf or to order it to make an election. It may be that, if the evidence were to show, that, had the Authority accepted that the damage that I have found to be subsidence damage was subsidence damage, they would have made a payment under section 10, an award of damages could be made. But there is no such evidence in the present case. 29

[88]By notices served on each of the claimants on 13 July 2000 the Authority purported to make their election under section 10 to make in each case a payment equal to the depreciation as assessed by Mr Trussell (see Table 1 column 2). Under the decision in McAreavey the Authority lose the right to elect if it is not exercised as soon as reasonably practicable after receiving the damage notice. That is the position when they accept that they have a remedial obligation. When, as here, they reject the claim notice, it must be at that point, in my judgment, that they lose the right to elect. Even if that is not the case, and the requirement is to elect as soon as reasonably practicable, in the present case the damage notices had been received between 1992 and 1995 and the purported election was made in July 2001. In my view, that was far too late to make an election. The reason that no election had been made earlier was that the Authority had been wrongly maintaining that none of the damage was subsidence damage, and it was only after the decision on the preliminary issue that they had to accept that they had a liability under the 1991 Act. This, however, does not affect the matter. There is no reason why they should be in a better position in relation to the time for making an election if they reject the claim than they would be in if they had accepted their remedial obligation. The time for election had undoubtedly passed, in my view; and in any event the claims were before the Tribunal for decision.

[89]It was the Authority that sought to rely on their purported elections. They were made on the basis of depreciation amounts that I find to be far too small. The claimants did not, however, suggest, and in my view they were right not to suggest, that the Authority, if they had the right to elect and did so, would be bound by their election if the Tribunal determined depreciation amounts that were higher than those on which the election had been based.

[90]It would, in my judgment, be open to the Tribunal to make an award of damages in the depreciation amount but only where that amount truly represented what the claimant had lost through the Authority’s failure to carry out their obligations under the Act. In McAreavey it was no longer possible to compensate the claimants for their loss by ordering repairs to the property to be carried out since they had, reasonably, sold the property and it had been demolished. In the present cases, however, remedial works can still be carried out. These repairs would make good the damage, except that they would not restore the garden land to its original level. It has never been reasonably practicable to restore the land to this level, and the claimants do not suggest that it has been. If the Authority had carried out the works to re-grade the land, to the extent that there was depreciation caused by the fact that the land was not restored but was only re-graded, a payment equal to the amount of that residual depreciation would have fallen to be made under section 11(3). If the Tribunal were now to order the Authority to carry out the re-grading works (and I will consider shortly whether I can and should make such an order) it would clearly be appropriate also to order the payment of this amount, although this would be done by way of an award of damages: see Knibb v National Coal Board

[1987] 1 QB 906

, per Donaldson MR at 915 F-G. 30

[91]Mr Wardell urged that damages in the amount of the total depreciation should be awarded to compensate the owners for the distress and inconvenience that had been caused by the delay in carrying out the remedial works, rather than that the Authority should be ordered to carry out any works. That would be inappropriate, in my judgment. The amount so awarded would in the majority of cases far exceed the total of the cost of the works plus the section 11(3) payment, and there is no reason why the excess should happen to be a suitable monetary reflection of the distress and inconvenience which Mr Wardell claims to have been suffered. In any event it does not appear to me probable that, if the Authority had offered to carry out the remedial works that I have found to be necessary, the claimants would have accepted the offers. Instead I think that they would have held out – as they actually did hold out – for a large award of damages based on depreciation.

[92]The claimants, as I have said, rely on the Human Rights Act 1998 and the Convention in contending that they should be paid as damages the difference in the value of their properties before and after the landslip, including, therefore, any blighting effect that the landslip may have had even though it might not be attributable to the damage suffered by the property. In my judgment the claimants’ human rights are not affected by what has happened. Article 1 of the First Protocol has no application in the present case, in my view. The cause of the interference with the claimants’ peaceful enjoyment of their possessions was mining operations carried out many years before the passing of the Human Rights Act and the adoption of the Convention. I cannot see how the prohibition in Article 1 could relate to deeds that have already been done. It is too late to prohibit them. If through some intervention the Authority could have prevented the landslip, the provision might have had some application, but plainly they could not have prevented the damage that was suffered. In any event, it seems to me, the 1991 Act (like its predecessors) provides a system of remedies for damage caused by mining subsidence that is not unfair. It gives the claimant the advantage of the onus of proof. It provides for the making good of damage and payments for depreciation arising from the damage. Neither the Act itself nor regulations made under section 29 provide for the payment of compensation for blight (although under section 29(2)(b) regulations could make such provision), and I do not find it possible so to construe the provisions as enabling this Tribunal to make an award that reflects depreciation due to blight. It would on the other hand be unfair, I should have thought, if a person whose property had been damaged could claim compensation for blight but a person whose property was blighted but not damaged could not.

[93]The Authority’s right to elect to make a depreciation payment under section 10 arises where the aggregate amount of costs specified in the schedule of remedial works exceeds the depreciation amount by at least 20 per cent. It is, as I have said, no longer possible for the Authority to exercise this right of election. But it is clearly relevant to the question of the order that I should make for me to consider whether this relationship between remedial costs and the depreciation amount exists. I therefore set out in Table 8 below the depreciation amount in respect of each property (from Table 7 column 4) plus 20 per cent. Set alongside this is the total cost of the remedial works (from Table 3 column 9). 31 Table 8: Section 10(2)(a) comparison High Street number 1 Depreciation + 20% £ 2 Total costs £ 37 108,000 43,446 39 92,160 39,551 45 22,800 43,058 47 97,200 86,577 49 76,800 57,008 51 57,600 25,291 55 131,128 38,205

[94]It will be seen that in each case, other than in the case of number 45, the figures in column 2 are lower than in column 1. If, therefore, the Authority had correctly addressed the issues arising they would not have been able to exercise their right to elect to make a depreciation payment in respect of those six claims. I have said earlier in relation to the remedial work to the buildings that the Authority could not resist making payments in lieu under section 8 if requested to do so by the claimants. The claimants ask for damages in the cost of these works, on the basis that they intend to carry them out. The right order for me to make, in my judgment, is that the Authority should make payments in lieu. These will be payable in respect of any sums shown to have been expended by the particular claimant in executing the works.

[95]Section 8 is couched in terms of the authority’s right of election, but the reality is that, if the owner of the damaged property has made a request to execute the remedial works himself and if execution of the works would not significantly impede the Authority’s discharge of their remedial obligation in respect of neighbouring property, the Authority is effectively under a duty to make a payment in lieu of executing the works itself. Such payment is to be made when, and not until, the claimant has actually incurred expenditure on the works (subsection (4)). In view of these provisions it does not seem to me appropriate to make, as Mr Wardell asked me to do, an award of damages in the amount that the repairs would cost if they were carried out. If it is proper that the claimant should be able to carry out the works himself, the right order, it seems to me, is that the Authority should be ordered to make a payment in lieu under section 8.

[96]As far as the damage to the buildings is concerned, I can see no reason, and none is suggested by the Authority, why the Authority should be impeded in its remedial obligation in respect of other property if in each case the claimants were to carry out the works themselves. In view of this, I propose to order that the Authority should in each case make a payment in lieu in respect of the damage to the buildings. Different considerations, however, apply to the damage to the land. Not only do the claimants not ask to be allowed to carry out the re-grading works themselves but it is manifestly appropriate that, if such works are to be carried out, this should be done as a single operation. Unless this were to be done, the land would be at differing levels on adjoining plots and substantial retaining works would be required. Access and other logistical problems would be likely to be much less in the case of a single 32 operation. As far as these works are concerned, therefore, the right order is that the Authority should carry them out.

[97]In the light of the comparisons in Table 8, as I have said, it would not have been open to the Authority to exercise their right of election in the cases of numbers 37, 39, 47, 49, 51 and 55. In respect of each of these properties my conclusion is that the Authority should be ordered to carry out the re-grading of the land (or, in the case of number 55, to insert soil nails) and to make a payment in lieu for the remedial works to the buildings. They should also pay damages to reflect the residual depreciation in each case as shown in Table 7 column 5. In the case of number 45, however, the total costs are very substantially more than the depreciation plus 20 per cent. I therefore need to consider what order I should make in relation to this property. It seems to me extremely likely that, if the Authority had accepted that they had a remedial obligation, given that they would be carrying out the re-grading works on 6 of the properties, they would have chosen to re-grade all the land from number 37 to number

[51]To leave a gap in the re-grading would give rise to the difficulties with the differing levels that I have referred to; and, in view of the fact that the gardens abut the Back Hills, an area of public open space, the public interest would clearly best be served by a complete rather than a partial scheme of re-grading. I cannot, however, assume that the Authority would have chosen to do the works in their entirety nor do I conclude that they could not reasonably have exercised their right of election in respect of number 45. In these circumstances the order that it would be right for me to make in respect of this property is that the Authority pay damages in the depreciation amount (£19,000: see Table 7). I nevertheless express the hope that the Authority will choose instead to treat the owner of number 45 on the same basis as the owners of the six other High Street claimants by carrying out the remedial works to the land and making a payment in lieu in respect of remedial works to the buildings and a residual depreciation payment. 43 New Station Road

[98]Mr and Mrs Cordery’s land at 43 New Station Road is three-quarters of an acre in extent. They built the bungalow there in 1959 and in the years that followed they landscaped, terraced and planted the garden. The garden slopes up northwards at the back of the house, and Mr Cordery had over the years constructed several terraces which were supported by nine retaining walls of significant length. There was a garden shed with an electricity supply and a summer house and a pond. There were stone paths and steps, a rockery, a rose garden, lawns and shrubs and trees. The landslip effectively destroyed the garden as Mr and Mrs Cordery had created it. A large lump came up in the middle of the lawn, the pond was upended and the water drained out. The terraces were distorted and the summer house and the garden shed leant in different directions. Every wall was either distorted or demolished. The steps to the principal terrace were completely engulfed.

[99]The garden has now been restored, and Mr and Mrs Cordery’s insurers have paid £60,563 in respect of the work that has been done. Reimbursement was sought from the Authority but, while they have agreed and paid for certain remedial works 33 totalling £6,293, they do not accept that they should have to pay the full cost of restoring the garden. The amount so spent was, they say, out of all proportion to the value of the house (about £100,000), and a reasonable outcome would be for the insurers to be reimbursed £10,000, about 10 ten per cent of the value of the house.

[100]Mr Wardell submits that the whole of the reinstatement costs should be reimbursed. It is, he says, far too late for the Authority to elect to make a depreciation payment. Instead they must pay damages. It was entirely reasonable for the claimants to spend over £60,000 in restoring the garden that they had built up over the years, and the measure of damages must be the amount of their expenditure. He seeks to derive support from certain passages in Ruxley Electronics and Constructions Ltd v Forsyth Laddingford Enclosures Ltd

[1996] AC 344

. They show, he says, that reasonableness falls to be measured by what the claimant has lost and not by comparison with the value of the house. The value of the house is irrelevant.

[101]I derive little assistance from Ruxley Electronics, a case concerning damages for breach of a building contract. The question in the present case is what the claimants have lost through the Authority’s failure to accept that they had a remedial obligation and to exercise their statutory functions accordingly. It arises in the context of the particular regime for dealing with subsidence damage that is established by the 1991 Act. It is part of the scheme of the Act that the Authority should be able to decline to execute or pay for remedial works where they are excessive in relation to the value of the property. Section 10 provides for their right of election and prescribes its limits. By rejecting a claim notice or by failing to exercise as soon as reasonably practicable their right of election, the Authority lost that right. The effect of McAreavey is not, however, to give every claimant whose damage claim is rejected the right to incur expenditure of unlimited amount on works to remedy the damage in advance of the determination of his claim. He can only recover as damages, in my judgment, the reasonable cost of remedial works, and what cost is reasonable must necessarily take into account the scheme of the Act and the Authority’s right of election. By rejecting a damage notice the Authority lose the right of election, but that does not make section 10 an irrelevance when considering for the purposes of section 40(3)(b) what the claimant has lost through the Authority’s failure to perform its duty under the Act.

[102]As with the High Street properties, therefore, I need to have regard both to the cost of the remedial works and to the amount by which the damage to the property diminished its value. Neither side, however, called valuation evidence, although Mr Cordery expressed the view that the property was worth about £100,000. Mr Darling adopted this figure as the one by reference to which the reasonableness of the expenditure should be gauged. Mr Wardell submitted that the value of the property was irrelevant. There is thus no evidence of the depreciation amount. I can, however, infer from the stance that the Authority have adopted that, if the cost of the remedial works was £10,000, they would not have sought to exercise any right of election that they might have had.

[103]Mr Cordery said that he did not consider the value of his property in relation to the remedial works, and I think it is readily inferable that he spent £60,000 in 34 restoring the garden of a house worth £100,000 only because his insurers provided the money for him to do so. Although I am sure that he wished to have his garden restored sooner rather than later, with his claim against the Authority still outstanding it would not have been reasonable for him to incur expenditure on remedial works in excess of the amount that he could have expected to receive as damages if he had waited for his claim to be determined.

[104]I have no doubt that the damage to the garden needed to be made good to some extent if the value of the house was not to be diminished. It was not, in my judgment, however, reasonable to go for this purpose beyond the removal of the damaged walls and buildings and paths, the re-grading of the land and turfing it or sowing it with grass. Section 4.00, 7.00 and 21.00 of A & M Harrop Contracting’s Schedule of Works in general cover these items. In some respects they go beyond and in some respects they fall short of what would be necessary, but they provide the best guide in my view to the cost. Together they total £9,571 including VAT. In the light of this an award of a round £10,000 is in my judgment appropriate. 69 New Station Road

[105]Mr and Mrs Dickson purchased 69 New Station Road in October 1990. They bought it with a mortgage from Bradford and Bingley Building Society, who also arranged insurance. It is a 1930s 3-bedroom detached house standing on a very steeply sloping site above New Station Road. After buying the house, Mr and Mrs Dickson made substantial improvements to it and re-decorated all except one of the rooms. In February 1993 they received a letter from Bolsover District Council which said that a landslip was in progress in the Back Hills area but that it did not appear that their property was likely to be directly affected. However, in May 1993, they received a letter from Cunningham Structural Services, a firm of structural engineers that had been appointed by the building insurers of a number of properties in the area to investigate the landslip. This letter said that the zone of influence of the landslip was now greater than originally anticipated and suggested that notification of the building insurers was appropriate.

[106]Mr Dickson telephoned and then wrote to Bradford and Bingley, who appointed Fishers, a firm of loss adjusters, to deal with the claim. A visit was made on 16 June 1993 by George Wilson of that firm and he reported on the damage that he had found. He said that, although it was not itself severe, it did indicate that the landslip was affecting the property, and other properties in the area had become very extensively damaged within a relatively short time. Mr Wilson then passed the file to Mr Batham, whose responsibility the claim then became. He appointed Elliott & Brown, engineers, to survey the house and to report. On 22 July 1993, after receiving Elliott & Brown’s report, Mr Batham wrote to Bradford & Bingley: “The Engineers at this stage have no doubt that the movement will continue and will eventually result in the insured’s property requiring demolition.” 35

[107]On 22 September 1993, following 5 further visits to the house, Elliott & Brown wrote to Fishers, and summarised their views as follows:

“The landslip is continuing and a slow progression of damage is occurring to No.69 New Station Road. We are unable to predict how much future movement will occur or the rate of progression. Having said this we think it most probable that No.69 New Station Road will eventually be damaged to the extent that demolition will be repaired [sc ‘required’], albeit that the dwelling is presently in a safe and general serviceable condition.”

[108]Having received this report, Mr Batham, who was aware of a concern about the ability of Mr and Mrs Dickson to cope with the stress of the progressive damage to their home, sought authority to treat the claim as a total loss and to take immediate action, should that become necessary. Mr Batham said that as an adjusted he faced a number of difficulties in deciding how to handle the claim. The sum insured was £80,000. That represented the insurer’s maximum liability under the policy. Thus any emergency works or temporary repairs would be deducted from the sum insured. Temporary alternative accommodation costs were capped, he believed, as a percentage of the sum insured. Had repair been an option this would in itself have presented a difficulty. They would have to have waited until the local authority confirmed that the site had stabilised, and during that period the property would have continued to deteriorate. Mr and Mrs Dickson would have had to move out while repairs were completed. Potentially then the policy limit for alternative accommodation costs might have been exhausted, leaving Mr and Mrs Dickson to fund the balance. Thus, if the insurers embarked on a ‘sticking plaster’ approach and the property was ultimately demolished they would have substantially reduced the sums available to Mr and Mrs Dickson to purchase a new property. Equally a ‘wait and see’ approach was inappropriate as Mr and Mrs Dickson were not young and not in the best of health and could not be expected to live in the house as it deteriorated around them. Mr Batham therefore took the view that the proper approach was to proceed on the basis that 69, New Station Road would ultimately be a total loss.

[109]Following a further visit, Mr Batham reported again on 16 March 1994, as follows: “Cracking and movement to the Insured’s property has gradually worsened and at this moment in time doors are now ‘sticking’, plaster works are beginning to deteriorate and some bedroom ceilings have partially collapsed. Mrs Dickson is currently recovering from heart problems when she was recently hospitalised and the Insured’s son is now becoming increasingly concerned with regard to their health and safety whilst they remain at this particular property.” 36

[110]Mr Batham had obtained valuations of the property and Mr and Mrs Dickson had also obtained a valuation. A total payment was eventually agreed at £77,350 in October 1994, and a policy excess of £1000 was not applied. Before the payment was made, Mr Batham obtained a further report from Elliott & Brown. This confirmed that movement was continuing, but at a slower rate. It said:

“We suspect that in due course the dwelling will become unstable, or at the very least uneconomic to restore and will require demolition. If we are wrong e.g. if [the] landslip stops now then clearly the risk of landslip recommencing is very high and consequently the property would have little, if any, market value as a dwelling.”

[111]Mr and Mrs Dickson settled their mortgage out of the insurance money and started to look for another house. They found the house that they wanted. It was semi-derelict. They funded the purchase price and the works that were needed from the insurance money and a further mortgage from Bradford and Bingley. They stayed on at 69 New Station Road while the initial works were going on, stripping out what they could from the house. They spent the winter of 1995/96 there with no heating except a gas fire.

[112]In 1998 or 1999 someone called Fred Allen expressed an interest in living in his caravan in the garden. Mr and Mrs Dickson agreed. Mr Allen paid rent and did work in the garden. He then became interested in purchasing, and Mr and Mrs Dickson gave him an option to purchase in return for £4,500. After a neighbour had told the council about Mr Allen’s presence, he disappeared. Subsequently a friend of his, a Mr White, who had provided the £4,500 for the option, said that he would buy the property and repair the house. The sale was completed on 10 August 2001, and Mr White paid £26,500 to Mr and Mrs Dickson. Mr Dickson says that he will refund to him the £4,500.

[113]There was no disagreement between the parties on these facts, which come from the evidence of Mr Dickson and Mr Batham. Mr Wardell submits that they show that the decision of Mr and Mrs Dickson to move was reasonable. Mr Darling says that they show that the insurers’ decision to abandon the house and make Mr and Mrs Dickson a payment on a total loss basis was not connected with the Authority’s denial of liability. It was purely a matter of the insurance contract that made it in the insurers’ interest to pay quickly so as to avoid significant charges for temporary accommodation. There was no need to abandon the premises, and Elliott & Brown’s report of October 1994 merely said that they “suspected” that the dwelling would in due course become unstable.

[114]The valuation evidence is unsatisfactory. There is agreement on the value of the property in its unblighted, undamaged state in reasonable condition: £69,000. Mr Fisher expressed the view that, assuming that the property was undamaged but required renovation, it would be worth £50,000, a figure stated in Mr Trussell’s supplementary report to be agreed. In its shell condition it would be worth £25,000. The Authority called no valuation evidence. It is the fact that the property was sold 37 for £26,500. Mr Wardell submits that the proper measure of damages is the difference between £69,000 and £26,500 less “a small allowance for the value of the items” Mr and Mrs Dickson took with them. Mr Darling says that the starting point must be the figures agreed by the valuers on the basis that the property required renovation: £50,000 as at July 2001. The maximum amount of any claim would be the difference between that and the £26,500. The latter figure is, he says, however, a blighted value, and blight must be ignored. The only figure available for an unblighted value was that in a report to the Authority by the District Valuer. It showed a diminution of £5,300.

[115]I attach no weight at all to the figure of £5,300. The Authority decided to call no valuation evidence, and the figure is not accepted by the claimants. The £26,500 achieved by Mr and Mrs Dickson on their sale may well be a blighted value. That does not matter. The proper measure of the depreciation amount (see above) is the difference between the damaged value and undamaged value as at the valuation date. To the extent that the property is affected by blight that does not stem from the damaged, this will be reflected in both the damaged and the undamaged values. The £26,500, however, is the price obtained for the house after Mr and Mrs Dickson, over a period of months, had stripped out from it what they could. There is no evidence of what the house would have been worth unstripped, nor is there any material on which I could estimate such a value. The agreed figure of £50,000 as the value of the house undamaged but requiring renovation is, as I understand it, an unblighted value. I have no evidence on which I could reach a valuation of the house in its undamaged state taking into account any effect there might be of blight that did not arise from the damage. In the circumstances I unable to establish the depreciation amount.

[116]As far as the cost of repairs is concerned, I have only one figure – the £6,655.88 in the Gleeds schedule. Mr Wardell suggested that some amount would fall to be added to reflect the view expressed in Elliott & Brown’s report and Mr Cowen’s evidence about the degree of tilt to the property. However, Mr Wardell called no evidence to suggest what that amount, if any, should be. The evidence before me only establishes a cost of £6,655.88 for remedial works.

[117]Both parties, as I have said, advanced contentions on the reasonableness or unreasonableness of Mr and Mrs Dickson’s decision to vacate the house and of their insurer’s encouragement to them to do so. The relevant question, however, it seems to me, concerns not their leaving the house but their selling it when they did. It may well have been a sensible, and fair, decision on the part of the insurers to pay Mr and Mrs Dickson the insurance value of the house to enable them to move. There was, however, a gap of nearly 7 years between the payment of the insurance money and the sale of the house. The money was paid in October 1994. They bought their new house in 1995. They did not sell the subject house until August 2001, and there is no evidence of any attempt on their part to do so, or of any pressure on them to do so, either from their insurers or because of their own circumstances. If they had remained in the house and the Authority had accepted its remedial obligation they would have had repairs costing £6,688 carried out. If they had not sold the house in August 2001, they could have expected from this Tribunal an order either that the Authority carry 38 out those repairs or that they make a payment in lieu. There would have been no basis on which damages reflecting the depreciation amount could have been awarded. In those circumstances the question is whether Mr and Mrs Dickson’s decision to sell at that time was a reasonable one, entitling them to a payment of damages based on the value of the house. The evidence before me does not show that it was. It is, in my view, reasonable to make the assumption that if the repairs that were judged to be necessary and assessed to cost £6,688 had been carried out, Mr and Mrs Dickson would have achieved a higher price for the house by this amount. The right award for me to make, in my judgment, therefore, is to order the payment of £6,688 to Mr and Mrs Dickson as damages. 71 New Station Road

[118]Mr and Mrs Sabin have had repairs carried out to their house. They cost £18,733.82. The Authority agree these costs except for two items. They are £72.85 including VAT for the re-glossing of timberwork in the hallway and £1,022.25 for drain repairs. A witness statement from Mr Sabin was lodged on behalf of the claimants. The Authority, with a view to minimising the time and cost spent in resolving the small amounts in dispute, chose not to ask for Mr Sabin’s attendance so that he could be cross-examined, and they called no evidence. Mr Darling confined himself to short submissions.

[119]Mr Sabin said that the re-glossing of the timberwork was needed because part of the repairs had consisted of re-plastering the entire hallway and this created a lot of dust, so that re-glossing of the timberwork became necessary. It is to be noted that in the original repair schedule there was an allowance for 3 sq m of replastering and the preparation and re-glossing of all timberwork. I should not have thought that if only 3 sq m of re-plastering was required this would have required the re-glossing of all the timberwork. But the final account, accepted by the Authority, is for “17 sq m replaster fix new cove”, and it would in my judgment be reasonable, where walls have been re-plastered where they abut timberwork, that the timberwork should be re- glossed. The £72.85 is therefore an admissible item.

[120]As far as the drains are concerned the total cost of the works was £2,628 excluding VAT. The items were listed under the headings “Completed work”, “Further work” and “Extra work”. It is in respect of the items under this last heading that the Authority take issue. They are, firstly, “Replacement of drainage from access chamber to the front Left Hand Side to and including gully”; secondly, “Last access chamber in run of drains. Provide new channel to bottom of access chamber”; and, thirdly, “Remove and cart away two 35 foot conifer trees and shrubbery, adjacent to drains”. There is nothing in the description of the first two items, or in the Dyno-Rod survey report, to suggest that these works were not made necessary by subsidence damage, and I conclude that they properly formed part of the works of repair. As far as the trees and shrubbery are concerned, it is unclear from the short description in the builders’ final account whether their removal was required in order to enable the repairs to be carried out or for other reasons – for example to prevent future damage by the roots. But the plan attached to the Dyno-Rod survey shows “Trees surrounding 39 MH4 no access”. Manhole 4 is the last access chamber on the run of drains and is the one therefore to which the second item of the “Extra work” related. The conclusion I draw, therefore, is that the removal of the trees and shrubs was necessary in order to gain access to the manhole. All the £1,022.25 including VAT is in consequence allowable.

[121]In respect of this claim, therefore, the appropriate award is for me to order the Authority to make a payment in lieu of £1095. Interest

[122]The claimants ask that the Authority be ordered to pay interest on the amount of any award that may be made. In the case of demolished properties, they say that, if the Authority had complied with its obligations under section 2(1) of the Act, it would have elected to make a discretionary depreciation payment under section 10 at the time it served a damage notice. Under paragraph 3 of Schedule 1 a depreciation payment is to be calculated as at the date on which the Authority gives notice of remedial action. This is accepted by the Authority. In the case of other properties, the claimants say that interest should run from the valuation date – and this, for the 7 High Street properties, is January 2001, the date by reference to which Mr Fisher’s valuations were made. The Authority say that the appropriate date is July 2000, the date when their valuations were made.

[123]As far as an award in respect of repairs is concerned, the claimants submit that it should be payable from the date on which the Authority served rejection notices. If the Authority had complied with its obligations, it would have done the repairs then or made payments in lieu. The Authority say that since any award would be made in respect of the cost of carrying out repairs, there could be no basis for awarding interest in respect of remedial works that have not yet been carried out since interest represents compensation for being kept out of the money and is not a penalty for non- payment.

[124]The orders that I am making in relation to the 7 High Street properties consist of:(a) orders that the Authority should carry out remedial works to the land;

(b) orders that the Authority should make payments in lieu in respect of the costs of works to the buildings; and

(c) orders that the Authority should make payments in respect of the depreciation in value caused by damage that it is not reasonably practicable to make good.

[125]No question of interest arises in relation to (a). Nor can interest be payable in relation to (b) since the costs have not yet been incurred. The claimants’ entitlement 40 to be reimbursed only arises when the expenditure has been made. On (c) the correct way to express my award, as I have said, is as damages. The damages are in respect of the Authority’s breach of its duty to make a depreciation payment under section 11(3). Under para 3(2)(c) of Schedule 1 the relevant time for valuation for the purposes of section 11(3) is the time immediately after the completion of the remedial works. For the purposes of assessing damages, therefore, it would be correct to carry out the valuation by reference to the date at which, if the Authority had accepted that it had a remedial obligation, it would have carried out the works. That would probably have been no later than 1996. The parties, however, have chosen to approach the question of valuation at later dates – July 2000 in the case of the Authority, January 2001 in the case of the claimants. This is the only evidence of value that I have, and, since the damaged values that I have accepted are those of Mr Fisher, it is obviously appropriate that I should take the later date as the date of valuation. This is what I have done. The residual depreciation amounts that I have assessed are thus values as at January 2001, and interest will be payable from that date.

[126]As for the rate of interest, the claimants say that this should be 8%, the rate payable under the Judgments Act 1838. The Authority say that it should be at the statutory rate. Section 14(4) of the 1991 Act provides that interest is payable on a depreciation payment in accordance with Schedule 1. Para 4(1) of Schedule 1 provides that the interest should be at the “applicable rate”, which, by virtue of section 52(3), means the rate prescribed by the Secretary of State. Article 3 of The Coal Mining Subsidence (Preventive Measures and Rates of Interest) Order 1991 prescribes as the rate of interest that prescribed under the Land Compensation Act 1961. This, therefore, is the rate of interest to which the claimants would have been entitled if the Authority had carried out their remedial obligation. Interest is payable, in my judgment, as an element of the damages. It is the interest to which the claimants would have been entitled if the Authority had carried out their remedial obligation, and it must therefore be at the statutory rate. The orders to be made

[127]Orders will need to be made to give effect to my determinations. They will need to embody the following: In respect of numbers 37, 39, 47, 49, 51 and 55 High Street –(a) The Authority to make payments in respect of the costs of remedial works in accordance with a detailed schedule of works and costs to be agreed between the parties or determined by the Tribunal: see para 97;

(b) Damages to reflect residual depreciation in accordance with the relevant figures in Table 7 column 5: see para 97. In respect of numbers 37, 39, 47, 49 and 51 High Street

(c) The Authority to carry out a scheme of re-grading, including the removal where necessary of buildings, in accordance with a scheme to 41 be agreed between the parties or determined by the Tribunal: see para

[97]In respect of number 55 High Street: (d) The Authority to carry out a scheme of stabilisation incorporating the use of soil nails in accordance with a scheme to be agreed between the parties or determined by the Tribunal: see para 97. In respect of number 45 High Street: (e) Damages to reflect depreciation in the sum of £19,000, unless the Authority opts to act in relation to number 45 on the same basis as in (a), (b) and (c) above: see para 97. In respect of number 43 New Station Road: (f) Damages in the sum of £10,000: see para 104. In respect of number 69 New Station Road: (g) Damages in the sum of £6,688: see para 117. In respect of number 71 New Station Road: (h) Damages in the sum of £1095: see para 121. In respect of all other references such orders as may be appropriate to reflect the agreements reached, taking account as appropriate of my conclusions on interest (see paras 124-126).

[128]The parties are invited within 28 days to submit to the Tribunal a draft order embodying the above. The parties are also invited to make submissions on costs, and a letter relating to the procedure for this accompanies this decision. This decision will take effect only when the question of costs has been determined. Dated 18 February 2002 George Bartlett QC, President 42 Addendum to decision

[129]The claimants have raised some 7 matters arising from my decision on which, they say, clarification is needed. Both they and the compensating authority have made written submissions in relation to these matters. Since the decision has not yet become final, it is appropriate that I should deal with them. Repairs to Mrs Hope’s drains

[130]Mr Wardell points out that included in the claim as it was pursued at the hearing was the amount of £3,771.75 which had been incurred by Mrs Hope, the owner of 55 High Street, on repairs to the drains of this property. Mrs Hope referred to these in her witness statement and Mr Cowan referred to them in his report of June 2001. It is right that I should deal with this issue now, having omitted to do so in my decision.

[131]The works were carried out in 1998 and 2000. The amount incurred by Mrs Hope on these repairs does not appear on Mr Rabone’s schedules of repairs costs because these relate to work that still requires to be done. There is no doubt that the drains suffered damage that had to be repaired. Mr Cowan regarded that damage as a clear sign of widespread ground movement having occurred. The damage is clearly consistent with other damage suffered by the property, notably the cracking of the floor slab to the garage. The conclusion I expressed in paragraph 55 of my decision thus applies to this damage also, and the amount claimed is therefore to be included in my award. Wardell Armstrong reports

[132]The owners of numbers 37, 39 and 55 High Street obtained advice on their subsidence claims from Wardell Armstrong, the mining, engineering and environmental consultants, in 1998. They paid Wardell Armstrong’s fees for this advice, and the amounts so paid were included in the claims as they were paursued at the hearing before me. I omitted to deal with these items, and I do so now.

[133]The question is whether in each case the amount that the owner paid for the advice was “reasonably incurred … for the purposes of, or for purposes connected with, the preparation and prosecution” of the claim, within the meaning of section 38(2) of the 1991 Act. If they were, the owner is entitled to be reimbursed under section 38(1). In my judgment, two questions arise. The first is whether it was reasonable for the owners to instruct Wardell Armstrong to advise them on their subsidence claims. In my view, it was. The owners reasonably required advice and Wardell Armstrong had the necessary expertise to give it. The second question is whether the owners could have withheld payment in whole or in part for the fees invoiced by Wardell Armstrong on the ground either that the advice was worthless or that the amount charged was excessive. I do not think that they could have done. That the owners in the event did not rely on the reports does not show them to have 43 been worthless or that the fees charged were excessive, and I do not think that they were. Mr Wardell refers to the cost of the reports as being £4,285.94. This is the total of the individual claims. The amounts are £1,261.00 in respect of 37 High Street, £1,206.06 for number 39 and £1,818.88 for number 55. The awards therefore include these amounts. 43 New Station Road

[134]I am told that the parties are agreed that to the sum of £10,000 referred to in paragraph 104 of my decision there should be added £10,711.16 in respect of particular agreed items. Those items are £6,293.71 in respect of landscape of architects’ fees and the cost of building and other works; £783.36 for re-stocking the garden; £470 for caravan parking; £58.75 for a valuation fee; and £3,105.34 for window replacement and decorating. The total amount payable by the Authority is therefore £20,711.16. 71 New Station Road

[135]I am told that the parties agree that the total amount payable by the Authority is £26,275.33. Interest on New Station Road Properties

[136]In the light of my decision, I am told, the parties are agreed that, in respect of the High Street properties and numbers 41, 49, 65 and 67 New Station Road (in which payments in lieu were agreed), interest is payable from the date when the relevant expenditure was incurred. The awards accordingly include these amounts, and the same applies to the expenditure incurred in respect of numbers 43 and 71 New Station Road that is included in my awards of damages. Cost of repairs

[137]The Authority says that it is prepared to make payments in lieu of dwelling repairs, up to the figures identified in Appendix 1 to the supplemental report of Mr Rabone, upon receipt of evidence of such repairs, and subject to inspection of such repairs by the Authority. The draft order being prepared by the parties should include provision to this effect. Cost of replacing greenhouses and outbuildings

[138]At paragraph 61 of my decision, in calculating the cost of repairs, I left out of account the agreed costs of replacing greenhouses and outbuildings. I did so because I could see no evidence that there was any wish on the part of the owners to replace 44 them. Mr Wardell takes issue with this. He says that the replacement costs - £21,000 for a greenhouse at 39 High Street and £12,500 for a conservatory at number 49 – appeared in Mr Rabone’s schedules and were agreed. The Authority did not raise the issue of the intention to replace them; and, had they done so, says Mr Wardell, short statements by Mr Wragg and Mrs Margerrison would have been served. The implication is that, contrary to the inference that I drew, the owners would wish to replace the structures. I do not think that it would be right for me to reconsider my findings in this respect. It is not suggested that there is any factual matter that I left out of account. It may be helpful, however, if I say what consequential effects on my decision would, in my judgment, arise if it were to be assumed that the proper inference from the evidence was that Mr Wragg and Mrs Margerrison did wish to replace the structures.

[139]If the replacement costs that I discounted were to be taken into account, certain figures in Table 3 would need to be changed. For number 39, column 6 would become £27,301, column 7 £5,255, column 8 £10,219, and column 9 £68,617. For number 49, column 6 would become £16,150, column 7 £3,423, column 8 £11,099, and column 9 £74,524. In Table 8 column 2 the figures for number 39 would thus become £68,617 and for number 49 £74,524. In each case these would remain below the comparable figures in Table 8 column 1, and the conclusion that I expressed in paragraph 94 would also remain. The question of Mr Wragg and Mrs Margerrison’s intentions thus does not affect that conclusion or the order that I adumbrated at paragraph 127(a).

[140]There would, however, be consequential effects in relation to the payments for depreciation referred to in paragraph 127(b) and shown in Table 7 column 5. In the case of number 39, at paragraph 80 I accepted Mr Trussell’s allowance of £14,000 for the loss of the three greenhouses and I set off against this £8,000 to reflect the benefit that removal of the greenhouses conferred on the property through the opening up of views to the west. The depreciation was thus £6,000. If a new greenhouse costing £21,000 were to be provided to replace greenhouses that were worth £14,000, the basis for any depreciation payment, in my judgment, would go. Mr Wragg could have £6,000 to reflect the net effect of the loss of the greenhouses or he can have a new greenhouse costing £21,000 to replace those worth £14,000. He could not have both, since I have no reason to believe that, with the benefit of this new greenhouse, there would be any residual depreciation in the value of the property.

[141]In the case of number 49, at paragraph 79 I assessed the depreciation at £2,080 and I increased this to £3,500 to reflect the loss of the conservatory. If Mrs Margerrison were to get a new conservatory costing £12,500, I am not satisfied that there would any residual depreciation to the value of the property. The inference that the claimants would have held out for a depreciation award

[142]Mr Wardell challenges my conclusion at paragraph 91 that it would not have been probable that, if the Authority had offered to carry out the remedial works that I 45 have found to be necessary, the claimants would have accepted the offers rather than holding out for a large award of damages based on depreciation. Having read his submissions on this and those of the Authority in reply, I do not think that I need to qualify this conclusion in any way. Costs

[143]I have received written submissions from both sides. It appears to me that separate consideration needs to be given to – the High Street claimants; numbers 43, 69 and 71 New Station Road respectively; and the other 10 New Station Road claimants whose claims were settled. I will take them in turn.

[144]The 7 High Street properties. The awards in these cases, with the exception of number 45, are for the carrying out of remedial works, the making of payments in respect of the costs of remedial works, and damages to reflect residual depreciation. Looking at the claims globally, it is agreed that the re-grading works, to be carried out by the Authority, would cost £131,373 (see Table 2: number 45 is excluded). It may be that that amount would be less with the works being carried out as a single operation, but I have no other cost estimates before me. Payments for remedial works would be up to £290,078 (see Table 3: number 45 is excluded). If the replacement greenhouse at number 39 and the conservatory at number 49 were to be included this amount would rise to £336,660. These are maximum amounts: the works might in the event cost less. The depreciation amounts total £39,950 (Table 7, column 5: number 45 is excluded). If number 39 were to have its greenhouse and number 49 its conservatory, this amount would fall to £30,450. These three elements, together with the £19,000 depreciation of number 45, total £480,401, or £517,483 on the alternative assumption about numbers 39 and 49.

[145]The case for the Authority was that they should be ordered to make depreciation payments only, totalling £42,000 (Table 1 column 2). The claimants sought depreciation payments totalling £680,000 (Table 1 column 2). Looking at the awards with these figures set beside those in the previous paragraph, it is clear that the claimants, taking their awards globally, were the successful party. This conclusion applies equally to their individual claims, and each claimant should have their costs in full unless there are particular reasons to deprive any of them in whole or in part. The Authority advance a number of arguments in support of a contention that not only should the claimants not have their costs but, rather, they should be ordered to pay “a substantial proportion” of the Authority’s costs, taking account of all the claims referred to the Tribunal. The Authority say that the claimants failed to make good their primary case, which was for depreciation payments rather than remedial works, and that it was only during counsel’s opening submissions at the hearing that an alternative case based on the cost of works plus residual depreciation was advanced. 46 It was only in counsel’s closing that the further alternative of the Authority carrying out the re-grading works was advanced. The claims had altered significantly over the quantum part of the reference, and the Authority’s case, that there should be small depreciation payments, was determined by the nature of the claims made against them. In addition the Authority say that the claimants failed to serve expert reports, and in particular engineering evidence, within the time limited by the Tribunal for them to do so.

[146]I see very little force in these contentions, principally because there is nothing to suggest that the Authority were put to additional expense by reason of the matters to which they refer. I can see no reason for thinking that the Authority’s case was determined by the nature of the case against it. The impression I am left with at the end of this extensive litigation is that the Authority’s principal concern throughout has been to minimise the amount of its liabilities under the Act, and it is this that determined the basis upon which it put its case in respect of the High Street Properties. Its case throughout was that no remedial works, or payments in lieu, were required in respect of the buildings since none of the damage was subsidence damage; while the cost of remedying the damage to the land and outbuildings was so far in excess of the depreciation amounts that it was entitled to elect that only depreciation payments, of very modest amount, should be made. I do not think that, however the claimants had put their case, the Authority’s case would have been any different. In my judgment each of the High Street claimants are entitled to their costs.

[147]69 New Station Road. The amount awarded was £6,655.88. On 29 August 2001 the Authority made a sealed offer of £14,014, which was clarified on 4 September 2001 as being £12,374 plus interest. I can see no reason why the claimants should not have their costs up to the date of the sealed offer or why the Authority should not have their costs thereafter.

[148]71 New Station Road. The amount awarded was £26,275.33. On 29 August 2001, the Authority made a sealed offer of £27,511, later, on 4 September 2001, clarified as being for £25,541 plus interest. The principal sum offered was thus less than the amount awarded, and the appropriate order in view of this, in my view, is that the Authority should pay the claimant’s costs.

[149]43 New Station Road. The award was £20,711. On 29 August 2001 the Authority made a sealed offer of £58,750 (later, on 4 September 2001, clarified as being £55,000 plus interest). There can be no argument, in my view, that the Authority should have their costs in relation to this claim from 29 August 2001. As for the period before that, it was not until June 2001 that the Authority succeeded in obtaining Harrop’s schedule of works. Until this had been done it was not possible for them, in my view, to evaluate the claim. Even then an amended schedule, showing the alterations that had been made, was needed and this was only provided on 19 July 2001. In view of the claimants’ failure to make a sufficiently detailed claim it is right, in my view, that they should pay the Authority’s costs both before and after the date of the sealed offer. 47

[150]As far as the other New Station Road properties are concerned (numbers 41, 45, 47, 49, 53, 55, 59, 61, 65 and 67) I heard no evidence about these, and I find the material put before me in the submissions as to costs – the only information before me about any of these claims – quite inadequate to enable me to make a decision on the question of costs. A concession is made on behalf of the claimants that, since the owners of numbers 41, 65 and 67 abandoned their claims for depreciation, they should not receive their costs in relation to this element of their claims. I suspect that in all cases the costs are relatively small. While I am prepared to receive further submissions and to make a determination, I express the hope that the parties may be able to reach agreement as to whether there is any justification for the claimants not having their costs (except to the extent of the concession that is made) and to agree the terms for inclusion in the draft order. Dated 7 May 2002 George Bartlett QC, President