Introduction and facts
1.In this reference the Tribunal is required to determine the extent of the work required to make good damage caused by mining subsidence.2.Mr Mark Widdows (“the claimant”) is the tenant and part owner (through a Help-to-Buy/Equity-Share Scheme) of a conventionally constructed, two-storey, three-bedroom semi-detached house known as 15 Bayfield (“the Property”) on a modern residential development (constructed by Bellway Homes in 2010) in West Allotment, approximately midway between Newcastle-upon-Tyne and Whitley Bay, Tyne and Wear. The property is leasehold, subject to a term of 125 years. In March 2016, significant mining subsidence damage (which had also affected a large number of other properties on the estate) was seen to have occurred to the Property. On 4 August 2016, the claimant served upon the respondent a damage notice, pursuant to section 2 of the Coal Mining Subsidence Act 1991 (“the 1991 Act”). In September 2016, the claimant appointed Mr Simon Hetherington of HPS Chartered Surveyors, Houghton Le Spring, to act as his agent. 3.The respondent is The Coal Authority (“the CA”) which was established pursuant to the Coal Industry Act 1994 (“the 1994 Act”). Under section 43(3) of that Act, the CA is the responsible person in relation to mining subsidence damage affecting land which is not within an area of responsibility of a person holding a licence authorising the carrying out of coal mining operations. The CA accepts that it is the responsible person in this case and, following investigations, it gave the claimant notice on 29 September 2016 pursuant to section 4(1) of the 1991 Act that it agreed it had a remedial obligation in relation to the damage to the Property. The damage was significant and it identified four possible remediation options, one of which was for the CA to consider purchasing the property at market value. Mr Michael Wright, Legal Director of DLA Piper UK LLP, represents the CA. 4.Initial negotiations took place between the parties and by letter of 15 November 2016, the CA suggested that it was prepared to recommend to the Secretary of State (under section 5(7) of the 1994 Act) that the property be purchased for the sum of £165,000 (the VO’s valuation) together with a Home Loss Payment and reasonable estimated moving costs bringing the total to £190,000. If that could not be agreed, the CA said it would be prepared (option (a)) to demolish the Property and, following ground investigation and any necessary remediation works, to rebuild it; it would continue to pay the cost of the claimant’s rental accommodation for the duration. Alternatively, (option (b)) if the claimant were to request it, the CA would reimburse the cost of works carried out by him equal to the costs that had been estimated in a schedule (pursuant to section 6(1)-(2) of the 1991 Act). Due to the nature of the damage and the fact the property was semi-detached, option (b) would have been impractical and was not subsequently pursued, but the schedule served by the CA in which it described the work it considered necessary to make good the damage remains contentious. 5.Although the parties had initially agreed that purchase was the preferred option, the CA’s offer was comprehensively rejected by the claimant’s agent in an email of 18 November 2016. The reasons given for the rejection are not pertinent to this decision but in brief summary, owing in part to what was described in the claimant’s skeleton argument as difficulties relating to his “unique position” as only part owner of the Property, the offer was wholly inadequate to allow the claimant to purchase a similar property and thus return to an equivalent position.6.The proposed schedule of works was also rejected (pursuant to section 6(3) and 6(4) of the 1991 Act) because it failed to include sufficient or required information particularly in respect of boundary treatment and landscaping, external works, modifications, fixtures and fittings and decoration.7.The CA then “in an effort to address the claimant’s objections”, issued a revised schedule under section 6(2) of the 1991 Act on 19 January 2017, together with notice pursuant to section 6(6) requesting a variation of the schedule. That section provided that where any party by notice requests a variation of the schedule of remedial works, and it is not agreed within 28 days (which it was not), the matter may be referred to the Upper Tribunal (Lands Chamber). 8.The CA thus filed a Notice of Reference to this Tribunal on 4 April 2017 to be dealt with in accordance with the wishes of both parties under the Tribunal’s simplified procedure. The sole issue for determination in this reference is whether the CA’s schedule meets the requirements of section 6(2) of the 1991 Act