Mining subsidence – Claim for compensation – Damage notices – Section 3 of Coal Mining Subsidence Act 1991 – Three respondents co-owning freehold of property – Only first respondent named as claimant in damage notices given to appellant in respect of subsidence damage – Whether notices invalid on ground that not given by “the owner” of the property – Whether notices invalidated by deficiencies in prescribed particulars – Notices upheld – Appeal dismissed
The respondents were three brothers who owned the freehold of a large 18th century mansion and grounds as tenants in common. By two damage notices served on the appellant in 2007 and 2009 respectively, under section 3 of the Coal Mining Subsidence Act 1991, claims were advanced for compensation for the cost of remedial works carried out to the property to remedy damage alleged to have been caused by mining subsidence. The notices were completed, on the standard form, by members of a firm of engineering consultants, who signed the form and ticked a box to indicate that they were professional agents authorised to represent the claimant. In the relevant box on the form, only the first respondent was named as the claimant, although an attached note on ownership named the three respondents as the freeholders and referred to “the current owners” in the plural.
The appellant disputed the validity of the notices on the primary ground that they had not been given by “the owner” of the property, within the meaning of section 3(1), but only by the first respondent as one of the three people who together constituted the owner. It further contended that the notice did not accurately give all the “prescribed particulars” required by virtue of regulation 2 of and Schedule 1 to the Coal Mining Subsidence (Notices and Claims) Regulations 1991, particularly as regards the name and address of the claimant and the legal interests in the property.
The respondents conceded that a damage notice on behalf of the owner of property had to be given by or on behalf of all co-owners and could not be given by one alone. However, they submitted that the notice had in fact been given by all three of them. Determining a notice of reference, the Lands Chamber of the Upper Tribunal found in favour of the respondents, holding that a reasonable recipient of the notice would have understood that the insertion of only the first respondent’s name as the claimant was an error and that the notice was actually given by all three respondents. It further found that the notices were not invalided by any inadequacy in the prescribed particulars. The appellant appealed.
Held: The appeal was dismissed.
(1) The service of an effective damage notice was important since it gave rise to the obligation of the appellant to take remedial action, such that a failure to serve a valid notice within the limitation period specified in section 3(3) of the 1991 Act might lead to the loss of the statutory remedy. Where the wrong person was named, the notice could not be construed as given by another person unless it was obvious to the recipient both that the wrong name had been substituted in error and who the actual giver was. In that regard, the statutory requirements could cast light both on the intention in giving the notice and the reasonable understanding of the recipient: Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749; [1997] 1 EGLR 57; [1997] 24 EG 122 and 25 EG 138 applied. Read in the light of the statutory provisions, the function of naming the claimant in the standard form for a damage notice was to identify the person who gave the notice.
The 1991 Act required that a damage notice be given by the owner of the property or a person who was liable to make good the damage. Section 3(6) defined “the claimant” as the person who gave the notice. Looking at the 2007 and 2009 damage notices and asking who, according to their terms, gave those notices, and bearing in mind who was able to give such a notice, the proper conclusion was the three respondents gave the notices as the freeholders of the property, with the first respondent being named only as a matter of convenience. The three respondents had authorised the engineering firm to deal with their subsidence claims and, in dealing with and despatching those notices, the firm was acting on their behalf.
(2) The effect of a failure to comply with statutory requirements would depend on the true construction of the statute, read in the light of its subject matter and background and the purpose of the requirement. The statute might require strict compliance or might be satisfied by “adequate” compliance, or it might be that even non-compliance was not fatal. Although the wording of section 3 of the 1991 Act suggested that a damage notice had to contain the prescribed particulars in order to be effective, parliament could not have intended that a notice would be invalidated by an inaccuracy in the particulars, bearing in mind the nature of those particulars. A notice would be valid so long as it adequately provided the information required by the 1991 Regulations. The 2007 and 2009 damage notices provided adequate information to the appellant since they identified the property in question and the damage it had suffered and identified the three respondents as the owners of the freehold and therefore competent to give a notice under section 3. The information provided by the notices was adequate since the appellant was able to, and did, respond to them and investigate the claims.
Per curiam: The respondents’ concession that a notice served by one of several co-owners was invalid was based on a line of authorities that concerned notices effecting a disposition of property. A damage notice under section 3 of the 1991 Act did not affect a property interest but instead satisfied a pre-condition of the appellant’s liability under section 2. A notice given by one co-owner was not necessarily ineffective for the purpose of satisfying section 3 of the 19921 Act; whether it was effective or not would depend on the true construction of the statute.
Nicholas Baatz QC and Alan Johns (instructed by DLA Piper UK LLP, of Sheffield) appeared for the appellant; Michael Barnes QC and Eian Caws (instructed by David Cooper & Co) appeared for the respondents.
Sally Dobson, barrister
Mining subsidence – Claim for compensation – Damage notices – Section 3 of Coal Mining Subsidence Act 1991 – Three respondents co-owning freehold of property – Only first respondent named as claimant in damage notices given to appellant in respect of subsidence damage – Whether notices invalid on ground that not given by “the owner” of the property – Whether notices invalidated by deficiencies in prescribed particulars – Notices upheld – Appeal dismissedThe respondents were three brothers who owned the freehold of a large 18th century mansion and grounds as tenants in common. By two damage notices served on the appellant in 2007 and 2009 respectively, under section 3 of the Coal Mining Subsidence Act 1991, claims were advanced for compensation for the cost of remedial works carried out to the property to remedy damage alleged to have been caused by mining subsidence. The notices were completed, on the standard form, by members of a firm of engineering consultants, who signed the form and ticked a box to indicate that they were professional agents authorised to represent the claimant. In the relevant box on the form, only the first respondent was named as the claimant, although an attached note on ownership named the three respondents as the freeholders and referred to “the current owners” in the plural.The appellant disputed the validity of the notices on the primary ground that they had not been given by “the owner” of the property, within the meaning of section 3(1), but only by the first respondent as one of the three people who together constituted the owner. It further contended that the notice did not accurately give all the “prescribed particulars” required by virtue of regulation 2 of and Schedule 1 to the Coal Mining Subsidence (Notices and Claims) Regulations 1991, particularly as regards the name and address of the claimant and the legal interests in the property.The respondents conceded that a damage notice on behalf of the owner of property had to be given by or on behalf of all co-owners and could not be given by one alone. However, they submitted that the notice had in fact been given by all three of them. Determining a notice of reference, the Lands Chamber of the Upper Tribunal found in favour of the respondents, holding that a reasonable recipient of the notice would have understood that the insertion of only the first respondent’s name as the claimant was an error and that the notice was actually given by all three respondents. It further found that the notices were not invalided by any inadequacy in the prescribed particulars. The appellant appealed.Held: The appeal was dismissed. (1) The service of an effective damage notice was important since it gave rise to the obligation of the appellant to take remedial action, such that a failure to serve a valid notice within the limitation period specified in section 3(3) of the 1991 Act might lead to the loss of the statutory remedy. Where the wrong person was named, the notice could not be construed as given by another person unless it was obvious to the recipient both that the wrong name had been substituted in error and who the actual giver was. In that regard, the statutory requirements could cast light both on the intention in giving the notice and the reasonable understanding of the recipient: Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749; [1997] 1 EGLR 57; [1997] 24 EG 122 and 25 EG 138 applied. Read in the light of the statutory provisions, the function of naming the claimant in the standard form for a damage notice was to identify the person who gave the notice. The 1991 Act required that a damage notice be given by the owner of the property or a person who was liable to make good the damage. Section 3(6) defined “the claimant” as the person who gave the notice. Looking at the 2007 and 2009 damage notices and asking who, according to their terms, gave those notices, and bearing in mind who was able to give such a notice, the proper conclusion was the three respondents gave the notices as the freeholders of the property, with the first respondent being named only as a matter of convenience. The three respondents had authorised the engineering firm to deal with their subsidence claims and, in dealing with and despatching those notices, the firm was acting on their behalf.(2) The effect of a failure to comply with statutory requirements would depend on the true construction of the statute, read in the light of its subject matter and background and the purpose of the requirement. The statute might require strict compliance or might be satisfied by “adequate” compliance, or it might be that even non-compliance was not fatal. Although the wording of section 3 of the 1991 Act suggested that a damage notice had to contain the prescribed particulars in order to be effective, parliament could not have intended that a notice would be invalidated by an inaccuracy in the particulars, bearing in mind the nature of those particulars. A notice would be valid so long as it adequately provided the information required by the 1991 Regulations. The 2007 and 2009 damage notices provided adequate information to the appellant since they identified the property in question and the damage it had suffered and identified the three respondents as the owners of the freehold and therefore competent to give a notice under section 3. The information provided by the notices was adequate since the appellant was able to, and did, respond to them and investigate the claims.Per curiam: The respondents’ concession that a notice served by one of several co-owners was invalid was based on a line of authorities that concerned notices effecting a disposition of property. A damage notice under section 3 of the 1991 Act did not affect a property interest but instead satisfied a pre-condition of the appellant’s liability under section 2. A notice given by one co-owner was not necessarily ineffective for the purpose of satisfying section 3 of the 19921 Act; whether it was effective or not would depend on the true construction of the statute. Nicholas Baatz QC and Alan Johns (instructed by DLA Piper UK LLP, of Sheffield) appeared for the appellant; Michael Barnes QC and Eian Caws (instructed by David Cooper & Co) appeared for the respondents.Sally Dobson, barrister
