PHRJ Newbold and Others v The Coal Authority
| Jurisdiction | England & Wales |
| Judge | Sir Stanley Burnton,Mannai,Lord Justice McFarlane,Lord Justice Longmore |
| Judgment Date | 23 May 2013 |
| Neutral Citation | [2013] EWCA Civ 584 |
| Docket Number | Case No: C3/2012/0799 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 May 2013 |
[2013] EWCA Civ 584
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (LANDS CHAMBER)
George Bartlett QC, President
[2012] UKUT 20 (LC)
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Honourable Lord Justice Longmore
The Right Honourable Lord Justice Macfarlane
and
The Right Honourable Sir Stanley Burnton
Case No: C3/2012/0799
Nicholas Baatz QC and Alan Johns (instructed by DLA Piper UK LLP) for the Appellant
Michael Barnes QC and Eian Caws (instructed by David Cooper & Co) for the Respondent
Hearing dates: 7th and 8th May 2013
Introduction
This is an appeal by the Coal Authority against the order made by George Bartlett QC, the President of the Upper Tribunal (Lands Chamber) declaring that notices dated 1 February 2007 and 3 August 2009 were valid damage notices for the purposes of section 3 of the Coal Mining Subsidence Act 1991.
The relevant legislative provisions
In order to understand the issue raised by this appeal, it is necessary to set out the relevant legislative provisions. The Coal Mining Subsidence Act 1991 confers a statutory remedy for damage to property caused by coal mining, and conversely it imposes statutory liabilities on the Coal Authority ("the Authority"). Section 2 imposes a duty on the Authority to take one or more kinds of specified remedial action in respect of subsidence damage. The specified remedial action is the execution of remedial works, the making of payments in respect of the cost of such works, and the making of payments in resepct of the depreciation of the value of the damaged property. Importantly for present purposes, that duty is subject to the provisions of the Act, and the most important of those provisions is section 3, requiring service of a damage notice.
Sections 3 and 4 of the Act, so far as relevant, are as follows:
"3. Notice of subsidence damage
(1) The [Authority] shall not be required under section 2( 1) or (4) above to take any remedial action or make any payment in respect of the cost of emergency works, unless the owner of the property or some other person who is liable to make good the damage in whole or in part—
(a) has given to the [Authority] the required notice with respect to the damage within the period allowed by this section; and
(b) has afforded the [Authority] reasonable facilities to inspect the property, so far as he was in a position to do so.
(2) The required notice with respect to any subsidence damage is a notice stating that the damage has occurred and containing such particulars as may be prescribed; and references in this Act, in relation to any subsidence damage, to a damage notice are references to such a notice with respect to the damage given within the period allowed by this section.
(3) The period allowed by this section for giving a damage notice with respect to any subsidence damage is the period of six years beginning with the first date on which any person entitled to give the notice had the knowledge required for founding a claim in respect of the damage.
…
(6) In this Act—
"the claimant", in relation to any subsidence damage, means the person who gave or, as the case may be, was the first person to give a damage notice to the [Authority] in respect of the damage, and includes any successor in title of his;
"any other person interested", in relation to any such damage and any time, means any person other than the claimant who, not less than 7 days before that time, gave such a notice to the [Authority] in respect of the damage, and includes any successor in title of any such person.
4. Initial response to damage notice
(1) As soon as reasonably practicable—
(a) after receiving a damage notice; or
(b) where they receive two or more such notices in respect of the same damage, after receiving the first of them,
the [Authority] shall give to the claimant, and to any other person interested, a notice indicating whether or not they agree that they have a remedial obligation in respect of the whole or any part of the damage specified in the damage notice.
…".
It can be seen that the only person who may serve a notice is the owner of the damaged property or some other person who is liable to make good the damage (typically a lessee under his repairing covenant). The service of an effective damage notice is important in two respects. First, it gives rise to the obligation of the Authority to take remedial action. Its obligation does not arise "unless the owner of the property or some other person who is liable to make good the damage … has given to the Authority the required notice". Secondly, and equally importantly, section 3(3) creates a limitation period, so that delay in serving or failure to serve an effective damage notice may lead to the loss of the statutory remedy and conversely may absolve the Authority from what would otherwise be its liability under section 2.
The Coal Mining Subsidence (Notices and Claims) Regulations 1991 ("the Regulations") prescribe the particulars to be contained in a damage notice as authorised by section 3(2) of the Act. Regulation 2 provides:
"A notice under section 3(1)(a) of the Act (notice of subsidence damage) shall contain the particulars specified in Schedule 1 to these Regulations."
Schedule 1 is as follows:
"The particulars referred to in regulation 2 are–
1. The name and address of the claimant and of any person acting on his behalf.
2. The address of the damaged property.
3. The type of property, including–
(a) if a house, whether detached, semi-detached or terraced; or
(b) if a flat or other part of a building used as a private-dwelling, whether purpose-built or a conversion.
4. If the property is not used exclusively for residential purposes, a brief description of its use.
5. Particulars of the legal interest of the claimant in the property.
6. The names and addresses (if known) of any other persons having a legal interest in the property (including mortgagees or, in Scotland, creditors under the heritable security) and the nature of their interest.
7. The approximate date of construction of each damaged part of the property.
8. Brief particulars of the damage.
9. The date, or approximate date, when the claimant first noticed the damage.
10. Whether the claimant has obtained a report on the condition of the property with a view to the possible preparation and prosecution of a damage notice and, if so, brief particulars of that report.
11. The days and times of the day when the property may be inspected.
12. Whether the property is ecclesiastical property or is otherwise held for religious purposes.
13. Whether the property is of a kind mentioned in section 19(1) of the Act (ancient monuments and listed buildings)."
The facts
I can take many of the facts from the President's clear judgment:
"1. The claimants, who are brothers, seek compensation "Likely to be in excess of £100m", as it is put in the notice of reference, under the Coal Mining Subsidence Act 1991 for the costs of remedial works to the mansion house and ancillary buildings at Wentworth Woodhouse, of which they are the freehold owners as tenants in common. Notice of reference was given following the service under section 3 of the Act of two damage notices, one dated 1 February 2007 and the other dated 3 August 2009, and their rejection by the Coal Authority. The Authority, the respondents, say that neither damage notice was valid; firstly because each was given by the first claimant, Paul Newbold, alone, rather than by the three brothers as owners of the property; and secondly because in four respects it failed to give particulars prescribed for such purposes by Regulations made under the Act. The claimants deny that the notices are invalid. They say that they were validly given by Paul Newbold as agent for himself and his brothers; or alternatively that they were given by the brothers; that any failure to give prescribed particulars has not rendered the notices invalid; and that in any event the Authority are estopped from contending that the notices are invalid or alternatively debarred from so contending under the doctrine of legitimate expectation. …
2. Wentworth Woodhouse is a mansion built on a vast scale in the mid-18 th century with a number of substantial buildings and structures in its grounds. It is in a sadly dilapidated condition. It was owned and occupied for many years by the Earls Fitwilliam but during the Second World War and afterwards it was occupied mainly by the military and then by various public bodies. It was acquired in 1988 by a person called Wensley Haydon-Baillie. Mr Haydon-Baillie got into financial difficulties, and on 4 June 1999 the property was acquired from his mortgagee, Bank Julius Baer, by Macaw Properties Ltd (Macaw), a company ultimately owned and controlled by the three Newbold brothers. The freehold was transferred by Macaw to the Newbold brothers on 2 December 2005, subject to the grant of a lease for 20 years from 1 December 2005 in favour of a company, SW1 Nominees Ltd, which held the lease on trust for Macaw. Small parts of the property were held under sub-leases.
3. Extensive coal mining took place in this part of Yorkshire in the vicinity of the Wentworth Estate from the 19 th century up to about 30 years ago. Deep mining was carried out by private coal owners and then by the National Coal Board beneath the property from 1922 to 1962 and in the vicinity of the Wentworth Estate from 1922 to 1979. In addition opencast mining was carried out...
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