Decision Nº LCA 121 2009. Upper Tribunal (Lands Chamber), 05-07-2010
| Jurisdiction | UK Non-devolved |
| Judge | Mr Norman J Rose FRICS |
| Date | 05 July 2010 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | LCA 121 2009 |
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UPPER TRIBUNAL (LANDS CHAMBER) |
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UT Neutral citation number: [2010] UKUT 193 (LC)
LT Case Number: LCA/121/2009
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
COMPENSATION – mining subsidence – dwellinghouse suffering damage – whether damage caused by mining subsidence – held that respondent had shown that it was not – Coal Mining Subsidence Act 1991, s40
IN THE MATTER OF A NOTICE OF REFERENCE
and
THE COAL AUTHORITY Respondent
Re: 48 Stocksfield Avenue
Fenham
Newcastle upon Tyne
NE5 2EX
Before: N J Rose FRICS
Sitting at Newcastle Social Security and Child Support Agency, Manor View House,
Kings Manor, Newcastle upon Tyne, NE1 6PA on 11 May 2010
and at Asylum and Immigration Chambers, Kings Court, Royal Quays,
Earl Grey Way, North Shields, NE29 6AR
on 12-14 May 2010
Susan Lindsey, instructed by Beachcroft LLP, solicitors of Birmingham, for the claimant
Dominique Rawley, instructed by DLA Piper UK LLP, solicitors of Sheffield, for the respondent
The following case is referred to in this decision:
Burton and Burton v National Coal Board, 22 April 1982, REF/122/179, unreported
The following further cases were cited in argument:
Coal Authority v Davidson & Davidson [2008] EWHC 2180 (TCC)
AXA Insurance UK Plc v Cunningham Lindsey UK [2007] EWHC 3023 (TCC)
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This is a reference under sections 40(1) and 40(3) at the Coal Mining Subsidence Act 1991 (the 1991 Act) for determination of the question whether damage suffered by a dwellinghouse known as 48 Stocksfield Avenue, Fenham, Newcastle Upon Tyne, NE5 2EX (No.48) was subsidence damage caused by the withdrawal of support in connection with coal mining operations. In the event of a ruling in favour of the claimant, Ms Valerie Edna Wood, the parties will seek to agree the form of the order to be made, in default of which the matter will be referred back for determination by the Tribunal.
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Ms Susan Lindsey of counsel appeared for the claimant. She called factual evidence from Mr Y Patel, a chartered civil engineer employed as a technical manager in the National Subsidence Unit of Crawford and Company (Crawfords), loss adjusters, who were appointed by the claimant’s insurers to investigate a claim notified by the claimant in April 2004 in respect of damage to No.48. Ms Lindsey also called evidence from three expert witnesses. They were Mr N W Jackson Eur Ing, FIME, CEng, practising as N W Jackson International Management and Mining Consultant in Seaton Sluice, Northumberland; Mr J V Ellis BSc, FNEIMME, a consultant mine geologist and Mr R J Evans BSc, CEng, MICE, MIStructE, a partner in Messrs R J Evans Knowles and Partners, chartered civil and structural engineers of South Yardley, Birmingham. Ms Lindsey also produced a witness statement from the claimant, which was not challenged.
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Counsel for the respondent Coal Authority, Ms Dominique Rawley, called one expert witness, Mr J P Ottaway MICE, a director of WYG Engineering based at his firm’s Nottingham office.
Facts
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From the evidence and agreed statements I find the following facts. No.48 is located in an area between Fenham and Benwell in western Newcastle upon Tyne. Stocksfield Avenue is accessible from the B1306 which leads to the A186, a main route from the A1 into the city centre. It is a brick built semi-detached house with a pitched tiled roof. Planning consent for its construction was granted in 1957 and it was built between 1957 and 1959. There is an attached single storey garage at the left hand side. There are garden areas at the front and left hand side of the house and at the rear is a paved garden, sloping downwards slightly away from the house.
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The ground floor accommodation comprises a hall and wc, leading to a front living room, a rear dining room and kitchen. On the first floor there are two bedrooms at the front and a bedroom and a bathroom at the rear.
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No.48 is one of a block of four semi-detached houses which front onto Stocksfield Avenue, and whose rear gardens are bounded by 20 Benwell Hill Road and 16 Rothley Avenue. The housing estate surrounding No.48 was mainly built around 1930 but the twelve houses, 10-16 Rothley Avenue, 42-48 Stocksfield Avenue and 21-26 Benwell Hill Road, were built as an infill development in about 1958.
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The land to the west of this block of houses is occupied by Silverhill School and Stocksfield Primary School, built between 1957 and 1961. As one approaches the site from the primary school up Benwell Hill Road, the road rises in level towards the infill block of twelve houses. This rise in topography is mirrored in the layout of Rothley Avenue to the north of the infill block, where the road falls steeply away from Stocksfield Avenue. The infilled block of houses is therefore constructed on a natural hollow within the natural topography.
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The boundary wall between this block of houses and the school grounds to the west of the site is a small retaining wall approximately 1-2m in height. There are brick buttresses constructed at regular intervals along the length of this wall. The date of construction of the buttresses is not known, but they either predated or were concurrent with the construction of the security fence to the school which steps around the buttresses.
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The claimant moved into No.48 in January 1990 with her fiancé, Mr Paul Myers, who sadly died in 1994. In about April 2003 she first noticed a crack over the kitchen window in the wall and ceiling. The crack soon became worse, widening and extending from above the kitchen window to the wall dividing the kitchen and dining room. The blind kept falling off the wall. Cracks then appeared around the patio doors in the dining room and along the wall separating No.48 from No.46. Damage also occurred in the back bedroom above the dining room. Cracks appeared around the rear bedroom window from the top right hand corner up to the ceiling and from the bottom right corner to the skirting board. The curtain rail also kept falling off, due to movement of the fittings. Cracking also appeared under the window on the stairs. Generally there were signs of movement throughout No.48, the wallpaper puckered and the carpet moved away from the walls, so that floorboards were visible.
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The cracking in the kitchen continued to deteriorate. After noticing damage in the dining room and rear bedroom, the claimant notified her insurers, Northern Rock, who appointed Crawfords to investigate. Mr Stephen Duffield FRICS, FCILA from Crawfords inspected the property on 7 April 2004. He reported to Northern Rock on 8 April 2004 as follows:
“Discussion
At this stage the cause of the movement is unclear. We suspect that the drains are leaking particularly as problems with blockages have been experienced in the recent past. However there are no drains along the rear elevation which appears to be suffering the most movement. There are sign of lintel failure to a number of windows as a result of UPVC replacement units inserted about five years ago but this does not explain the cracking seen in the dining room and the lower levels on the gable wall. The rear elevation wall leans outwards from ground level and has been repointed although prior to the insured’s ownership. Generally the degree of damage internally is not reflected in the external brick wall.
Recommendations
We will arrange a site investigation including drain testing as well as a period of monitoring. Studs have already been set in place and initial readings taken. Monitoring is a useful diagnostic tool. Cracks that open and close are generally indicative of clay shrinkage problems, whilst cracks that open episodically, without closing, are indicators of water problems (leaking drains, water services etc) or possibly heave. It also allows us to tell when movement has stopped, and when repairs can be implemented. Readings will be taken at bi-monthly intervals to judge the efficacy of any drainage repairs. When we are satisfied movement has stopped, the damage can be cosmetically repaired. Monitoring is carried out in accordance with requirements of the Building Research Establishment.”
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On the day Mr Duffield produced his report, and on his instructions, Auger Solutions carried out a survey of the underground drainage system at No.48. Auger...
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