LCA/197/2000

	LANDS TRIBUNAL ACT 1949
	
COMPENSATION – mining subsidence – bungalow suffering successive incidences of damage – claimants rebuilding on adjacent site – whether rebuilding necessary to remedy damage to claimants’ reasonable satisfaction – cost of repairs – Coal Mining Subsidence Act 1991 section 6(2)(a) – compensation awarded £53,958

IN THE MATTER OF A NOTICE OF REFERENCE

BETWEEN	(1) JOHN BARRY DIGBY MARTIN	Claimants
	(2) MAUREEN EDITH MARTIN
and
	THE COAL AUTHORITY	Compensating
		Authority

	Re:	Dwellinghouse, Hillside Lodge,
	Keele Road, Whitmore, 
	Newcastle-Under-Lyme
	Staffs ST5 5HW

	Before: The President and N J Rose FRICS

	Sitting at Procession House, 55 Ludgate Hill, London EC4M 7JW
	on 11, 12, 13, 14 and 28 April 2005

Justin Mort instructed by Kent Jones & Done, solicitors of Stoke-on-Trent, for the claimants
Paul Darling QC instructed by DLA Piper Rudnick Gray Cary, solicitors of Sheffield, for the compensating authority

The following cases were referred to in argument:

Edwards v National Coal Board [1949] 1 All ER 743
Jordan v Norfolk County Council [1994] 4 All ER 218
Langley v Coal Authority [2003] EWCA Civ 204
McAreavey v Coal Authority (2000) 80 P & CR 41
Landsborough v Coal Authority (Lands Tribunal for Scotland, 25 November 2004, unreported)

	DECISION
Introduction
1.	The claim in this case is made by Mr J B D and Mrs M E Martin (“the claimants”) under the Coal Mining Subsidence Act 1991 and arises out of subsidence damage sustained by the claimants’ bungalow, Hillside Lodge, Keele Road, Whitmore, Newcastle-under-Lyme, as the result of coal-mining operations.  Because of the damage sustained by the bungalow, the claimants’ insurers accepted that it was appropriate for it to be demolished and a replacement bungalow erected a short distance away.  The claimants are now seeking reimbursement for the costs of this rebuilding and the professional fees associated with it and also for a number of other items of expenditure.  The Coal Authority (“the Authority”) contend that it was not necessary to rebuild the bungalow in order to remedy the subsidence damage, and they deny that they are liable to pay these sums.  The claimants contend in the alternative that they are entitled to the amount that it would reasonably have cost them to repair the bungalow, if they had decided to retain it, and to incidental costs.  The Authority accept liability on this alternative basis.  There is, however, dispute on what works of repair should be assumed for this purpose and on the costs. 
Factual background
2.	The claimants bought the property in 1982.  Deep coal extraction was carried out in the vicinity of the property in the course of mining operations in 1989/90, 1990/91 and 1997/98.  The bungalow suffered damage over a considerable period in the 1990s, and damage notices were served in 1990, 1992, 1994, 1997 and 2000.  The first three notices were accepted by the Authority, and repairs were carried out and paid for, but the 1997 and 2000 notices were rejected. 
3.	Reference to this Tribunal was given by notice dated 27 September 2000 by the claimants’ solicitors.  It sought compensation under the 1991 Act and stated as the approximate amount of the claim £50,000 to £75,000.  The Points of Claim stated that the claim was for an order under section 40(3)(a) of the Act requiring the Authority to take remedial action in relation to the property, damages under section 40(3)(b) and such further orders as might be necessary to give effect to the Tribunal’s determination under section 40(3).  In their Points of Defence, served on 22 December 2000, the Authority disputed the cause of the damage.  They said it was likely to be differential settlement caused by ground water effects on the foundations.  In a letter dated 4 May 2001, however, their solicitors Nabarro Nathanson said that they were prepared to accept that they had a remedial obligation under the Act. 
4.	In a letter dated 1 October 2001 Nabarros stated that the Authority proposed to meet their remedial obligation by making payment under section 10(4) of the Act in respect of the depreciation in value of the property caused by the damage, and on 17 October 2001 they offered the sum of £95,000 in full and final settlement on this basis.  On 27 February 2002 the claimants’ solicitors wrote enclosing a valuation that showed the depreciation in the value of the property to be £180,000, and they proposed settlement of the claim on the basis of the cost of rebuilding, which was estimated at £107,500 plus fees, and other costs.
5.	On 5 March 2002 DLA, who had succeeded Nabarros as the Authority’s solicitors, replied to the claimants’ solicitors, saying that they would take their clients’ instructions and, for the avoidance of doubt, seeking confirmation as to whether it was the claimants’ wish that the Authority should undertake the demolition and rebuilding of the property or whether the claimants proposed to do so themselves.  They said that there was no question of an award of damages on the basis of demolition and rebuilding without such demolition and rebuilding having occurred.  They said it was likely that further inspection of the property would be needed. 
6.	On 4 April 2002 the claimants’ solicitors e-mailed to say that their clients intended to undertake demolition and rebuilding themselves, and they said that they gave notice to this effect under section 8 of the Act.  DLA replied on 8 April 2002 saying that the Authority would serve a schedule of remedial works.  On 19 July 2002 DLA wrote to say that, having regard to the degree of damage and the risk and magnitude of any further movement, they were advised that there was no necessity for the property to be demolished and rebuilt.  In a subsequent letter dated 6 August 2002 they said that the claimants should be in no doubt that, if they went ahead with demolition and rebuilding, the Authority would contend that such action was wholly unnecessary for remedying the damage.  On 10 September 2002 DLA wrote stating the Authority’s election under section 8 to make payment in respect of the cost of remedial works and enclosing a costed schedule of works prepared by Gleeds in the sum of £19,899.09.
7.	Crack and level monitoring of the property began in November 2002 and was continued for 16 months until March 2004 when the works of demolition and rebuilding started.  In December 2000 the claimant Mrs Martin ceased to live at the property and from that time she lived instead at the claimants’ holiday home in Devon.  Her husband continued to live in the property.
The statutory provisions
8.	Part II of the 1991 Act 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.
9.	Section 2 contains the duty that is placed on the Authority to take remedial action:
“(1)	Subject to and in accordance with the provisions of this Part, it shall be the duty of [the 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 payments in accordance with section 8 or 9 below in respect of the cost of remedial works executed by some other person; and 
(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.”
10.	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 particulars.  The owner must afford the Authority reasonable facilities to inspect the property.
11.	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(1) when giving notice of proposed remedial action the Authority are required to serve a schedule of remedial works which must (under subsection (2)) 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.”
12.	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 (subsection (4)).
13.	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.
14.	Under section 10 the Authority may, in defined circumstances, 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 amount”) instead of executing any remedial works or making any payment in lieu.  In particular (subsection (2)(a)) they may do so where the aggregate amount of the costs specified in the schedule of remedial works exceeds the depreciation amount by at least 20 per cent.
15.	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.
(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.”
Application of statutory provisions
16.	Because of the course events have taken in the present case the application of the statutory provisions potentially presents some difficulties.  As we have noted above, where the Authority agree that they have a remedial obligation they are required under section 4 to state this in their response to the damage notice.  The response has to be served as soon as reasonably practicable after receipt of the damage notice, and it has to state the remedial action that the Authority intend to take.  Under section 6 the notice of proposed remedial action must be accompanied by a schedule of remedial works.  Section 6(4) provides for reference to the Lands Tribunal.  In the present case, however, the Authority’s response to the damage notice was to deny liability for the damage on the ground that it was not caused by mining subsidence, and it was this dispute that was referred to the Tribunal.  It was not until some months after the notice of reference that the Authority accepted that they had a remedial obligation, and it was not until almost two years after the notice of reference (and 5½ years after the 1997 damage notice and 2½ years after the 2000 damage notice) that they purported to serve a schedule of remedial works.  They gave notice of election under section 10 to make a depreciation payment, later making an offer of £95,000, and then revoked their election.  For their part the claimants went ahead with demolition and rebuilding even though the Authority had made clear their view that such action was wholly unnecessary for remedying the damage.
17.	This sequence of events, which clearly does not follow that envisaged by the Act, could have given rise to considerable difficulties on how the provisions of the Act were to apply.  Happily, however, there is agreement between the parties that the claimants should receive a payment in respect of the damage, whether as a payment under the statute or by way of damages under section 40(3)(b), and they agree that it does not matter how the payment is characterised.  We shall refer to it as compensation.  They agree further that quantum is to be assessed by reference to the works that the Authority would have been required to specify under section 6(2)(a).  It is the proper application of section 6(2)(a) that gives rise to the only outstanding disagreement between the parties on the application of the Act.  The issue between the parties is what works were “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[s].”
18.	For the claimants Mr Justin Mort submitted that the claimants only had to demonstrate that the work that they carried out, and the cost incurred, or the work that they would have carried out, was for the purposes of remedying the damage “to their reasonable satisfaction.”  The test was in part objective in that the satisfaction must be “reasonable”.  The claimants could not recover the cost of a whimsical or unjustified scheme.  The test was, however, also subjective in that it was related specifically to the satisfaction of the particular houseowners (who might be more demanding than other owners) who had suffered the particular damage.
19.	In determining whether it was reasonable for the claimants to seek satisfaction through demolition and rebuilding, said Mr Mort, the Tribunal should have regard to all material circumstances.  Such circumstances included the professional advice received by the claimants and reasonably acted on by them, including advice as to the risk of future movement.  Whether such advice was correct was irrelevant.  Other matters to be taken into account were the past history of damage and of attempts by the Authority to remedy damage and their lack of success, and the claimants’ perception of that history and the distress they had suffered; and the fact that the claimants had accepted the claimants’ remedial scheme, or appeared to accept it, having offered £95,000 as a depreciation payment, which could only be consistent with an admission that the cost of repairs would be more than £114,000 (i.e. £95,000 + 25%).
20.	For the Authority Mr Paul Darling QC submitted that Mr Mort’s contention on section 6(2)(a) erred in concentrating on one element of that provision to the exclusion of the others.  The works specified those which the Authority “consider to be reasonable works in relation to the damage.”  They had to be “necessary” in order to make good the damage.  And there was also a qualification as to reasonable practicability.  Mr Mort’s contentions ignored the fact that it was what the Authority considered to be reasonable works that had to be specified.  It was a three-stage process, in which these questions arose.  Firstly, what works were necessary to make good the damage?  Secondly, should the works be reduced by reference to the test of reasonable practicability?  Thirdly, should the works be adjusted by reference to what might reasonably satisfy the claimants?  It was the claimants who here made the decision to demolish and rebuild, despite the Authority’s clearly expressed view that such action was wholly unnecessary.  They could have sought the Lands Tribunal’s determination of the issue before carrying out the works, but they did not do so.
21.	It is clear from the wording of the provision, in our judgment, that the test of what works are to be treated as remedial works is necessity.  The question is what works are necessary to make good the damage?  There are two qualifications to this test.  Firstly, works are to be treated as remedial works, if they are necessary to make good the damage to the extent that it is reasonably practicable to do so.  Secondly the works must be those that are necessary to make good the damage to the reasonable satisfaction of the claimant.  No issue arises here on the qualification of reasonable practicability.  As to the second qualification, what is necessary to remedy the damage must be judged in the light of what the claimants may reasonably require for this purpose.  We accept generally the submissions of Mr Mort on what matters are relevant to this: that is to say, we think that the advice that they received, the history of the damage and the attempts to remedy it, their perceptions and fears, and the past approach of the Authority are all relevant to what they might reasonably require in order to be satisfied.  However, where the parties disagree about whether the works in the schedule are properly to be regarded as remedial works in relation to the damage, it is for the Lands Tribunal to determine whether they do.  The Authority specify what they consider to be necessary, taking account of the requirement of reasonable satisfaction; and, if the claimant does not accept this specification he can refer the matter to the Tribunal under subsection (4).  The claimants here, as Mr Darling pointed out, did not wait for the Tribunal’s resolution of this dispute before proceeding with demolition and rebuilding.  In the circumstances it was not reasonable for them to place reliance on advice which was the subject of dispute and was to be subjected to scrutiny and evaluation in the proceedings.  As we say later, we do not consider that the evidence shows that demolition and rebuilding was necessary taking geological and engineering considerations into account.
22.	As far as the history of mining subsidence damage to the property is concerned, we do not consider that this, and the inconvenience and upset that it has caused to the claimants, is sufficient to make it reasonable for them to insist on demolition and rebuilding, given our conclusion that such action was not necessary to remedy the damage.  We think also that little weight should be attached to the Authority’s earlier offer, although we recognise that this will have raised the claimants’ expectations.
Nature of the damage
23.	To give evidence on the nature of the subsidence damage to Hillside Lodge Mr Mort called Mr D C Wilshaw, FRICS, IENG, AMIMM, a technical director of Wardell Armstrong LLP of Newcastle-under-Lyme and Mr J H Snelson, CEng, FIStructE, MConsE of C F Mountain and Partners of Stoke-on-Trent.  The expert witness called by Mr Darling was Mr P E Horton, BSc, MSc, CEng, FIStructE, MICE, MCIEW, an associate director of W S Atkins Consultants Ltd of Birmingham.
24.	A joint statement prepared on the second day of the hearing by those three experts and Mr Renaudon, the claimants’ quantity surveyor, contained the following summary description of the damage:
“The damage is principally situated along an east/west axis through the property adjacent to the spine wall and along the entrance hallway at the west end of the building. The damage can broadly be described as resulting in some cracking in the external walls adjacent to this location and movement along the ceilings in this proximity.  Some cracking is evident elsewhere.”
25.	The experts classified this damage in accordance with the categories appearing in the Building Research Establishment’s Digest 251 (“BRE”) and in the National Coal Board’s Subsidence Engineers’ Handbook (“SEH”).  It was agreed that the damage generally fell within category 3 in the BRE (“moderate”), but Mr Snelson considered that other items fell within categories 4 and 5 (“severe” and “very severe”).  The damage classified in accordance with SEH was generally in category 3 (“appreciable”), but Mr Snelson contended that certain items were in category 4 (“severe”).  Having considered all the evidence we accept Mr Snelson’s opinion, to the extent that there was a limited amount of damage which can properly be described as “severe” by reference to the BRE, which describes typical damage of that nature as follows:
“Extensive damage which requires breaking-out and replacing sections of walls, especially over doors and windows.  Windows and door frames distorted, floor sloping noticeably.  Walls leaning or bulging noticeably, some loss of bearing in beams.  Service pipes disrupted.  Typical cracks are 15 to 25mm, but also depends on number of cracks.”
26.	We find that there was no significant damage within class 5, that is:
“Structural damage which requires a major repair job, involving partial or complete rebuilding.  Beams lose bearings, walls lean badly and require shoring.  Windows broken with distortion.  Danger of instability.  Typical crack widths are greater than 25mm but depends on number of cracks.”
27.	The precise classification of the damage is, however, of limited relevance to the most important factual issue we are required to determine, namely whether Mr Snelson’s preferred scheme “A” was appropriate to remedy that damage.  That is because Mr Snelson’s view that the foundations should be strengthened in accordance with scheme “A” was based on Mr Wilshaw’s opinion – expressed in his report dated 11 May 2001 – that ground movement was likely to be ongoing.  On the other hand Mr Horton’s proposed repairs, and Mr Snelson’s alternative scheme “B”, were prepared on the assumption that the risk of further significant movement was remote or non-existent.  As Mr S M Fitzgerald of Davies Loss Adjusters LLP, who dealt with the insurance claim on behalf of Lloyds Underwriters explained, the cost of the foundation strengthening scheme was so high that the insurers were persuaded that it would be more economic to demolish the existing property and build a new one on a separate footprint.  We therefore turn to the evidence concerning the probability of future ground movement.
The probability of future movement
28.	Mr Wilshaw has had some 30 years experience in the mining industry – in deep mining operational activities, monitoring and estimation of mining induced ground movements (subsidence), design of mine layouts, advising on liability, provision of mining reports, consultancy and stabilisation of former mine entries and workings.  He has been involved in the appraisal of causation of damage in regard to a large number of properties in the coalfield areas of England and Wales, particularly for the North Staffordshire coalfield.
29.	Mr Wilshaw submitted two written reports to the Tribunal.  The first was dated 11 May 2001.  It reiterated the view, which he had previously expressed in a report he had prepared for underwriters in August 1998, that the damage to Hillside Lodge had been caused by mining subsidence and that the geological structure in the vicinity of the site clearly provided the potential for the development of unorthodox ground movements.  In his earlier report.  Mr Wilshaw had explained that the geological mapping showed the conjectured route of a north-south trending fault, the Whitmore Fault, situated some 80 metres to the east of Hillside Lodge.  The fault was shown to hade beneath the property.  It was depicted as a discrete line but was more likely to comprise a zone of say 10 metres in width.  The specific location of the fault zone was not known and the possibility of it existing in the immediate vicinity of the property could not be discounted.  The fault itself was not expected to form a natural source of instability.
30.	Mr Wilshaw said that the property exhibited signs of having been subjected to tensile type ground movement along its north-east/south-west access.  This movement generally conformed with the direction of tension expected from the mining activities.  Although the estimation of ground strains was particularly prone to error, on the basis of the damage evident to date he considered it would be prudent to allow for 0.5millimetre/metre change in length (tensile) across the short axis of the property.  He considered that the severity and continuing nature of the damage suggested that the foundations to the property could be expected to have been affected and that the indications were that no repairs had previously been carried out to them.  This provided the potential for further movement within the property as it adjusted to the differing stress regime within the building and foundations.  He believed this to be part of the reason for the continuance of damage to the property.  
31.	Mr Wilshaw’s supplemental report to the Tribunal was dated 9 June 2004.  He summarised his opinions at that time as follows.  The views expressed in his previous report remained valid.  Coal mining induced subsidence was the most probable cause of damage to the property.  This was likely to have interacted with the geological setting at the site to form an abnormal reaction both in respect of magnitude and duration of movement.  Despite mining within the notional support area for the site having ceased in 1998, there remained a risk of further mining induced ground movement.  The remedial works to be carried out needed to have due regard both to the severity of past damage and to the mining/geological setting at the site.  
32.	In the joint statement referred to in para 24 above.  Mr Wilshaw expressed the opinion that as at 2002 there existed a high probability of further damage occurring and that damage could be severe.  He added that he did not consider that the position was materially different in March 2004.  
33.	Mr Horton has worked for consulting engineering practices for over 30 years in the field of building design and refurbishment and has gained considerable experience in the diagnosis and repair of structural damage and defects in buildings.  In particular he is responsible for providing structural advice under term commission contracts to metropolitan borough councils and the Ministry of Defence, who have a large portfolio of both traditional and system built housing in addition to specialist structures.  An important part of his work is to provide an overview on geotechnical matters for his clients.  He was not, however, instructed to express an opinion on mining subsidence or geological issues;  in respect of those matters he accepted the evidence of Mr Wilshaw.
34.	Mr Horton prepared two reports for the Tribunal.  In the first, dated August 2002, he agreed with Mr Wilshaw – contrary to the position previously adopted by the compensating authority – that mining induced subsidence as a result of the geological formations and/or faults in the vicinity was the most probable cause of foundation settlement at the subject property.  He further acknowledged that in such circumstances ground movements of an abnormal nature could occur, giving rise to long term instability.  He considered that the results of such monitoring of the movement of the building which had taken place to date were not reliable as a means of predicting likely further movements.  He recommended that a programme of accurate monitoring should be established to determine the extent of further movement that was taking place and the rate of decrease.  The method of repair which would be most appropriate to remedy the damage would be dependent upon the likely magnitude and risks of further ground movement.  There was little evidence of current movement of any significance, but it would be preferable if precise monitoring could be undertaken before any repair works were commenced.  
35.	Mr Horton’s supplementary report was dated May 2004.  In it he reported the results of a building movement monitoring programme which commenced on 7 November 2002 and comprised six interim surveys ending with a final visit on 15 March 2004.  He concluded from the level monitoring records that no discernible movement of the building was recorded over the 16 months period in question.  There was no visible evidence to suggest that ground movement had occurred.  A discrepancy was found between datums on the final visit, although he thought it was possible that the base fixings may have moved since they had been installed into concrete slabs of unknown construction and thickness as opposed to vertical brickwork or concrete blocks which were usually used for the purpose.  
36.	The crack monitoring records did not suggest that there had been a detectable movement of cracks over the period of monitoring.  Furthermore, he could see no visual evidence to indicate progressive damage, although a slight increase in an internal crack over the archway in the hall was noted.  This fracture occurred at the bearing of a steel joint RSJ supporting the ceiling over the hallway along the junction of the plasterboard.  It also appeared that the vertical fracture over the corner of the west entrance door had been previously re-plastered but not stitch-bonded.  The fracture was long standing in nature, but he was unable to form a view whether any recent movement had occurred.
37.	Mr Horton remained of the opinion that the extent of overall structural damage could be considered as moderate.  The majority of structural distress was concentrated along the central axis of the property, which had fractured along a path of inherent structural weakness in the building.  Given the anomalies that had occurred in the precise level monitoring of the property and the tolerance band assumed on the crack monitoring, he could not conclude that movements had totally ceased.  They had, however, diminished to a very small magnitude which was difficult to detect, even using sensitive monitoring methods.  He therefore concluded that the risk of significant future movement was remote. 
38.	Having considered the evidence of the experts on this issue, we accept Mr Horton’s opinion that, in March 2004, the risk that the property would suffer significant further movement was remote.  Our reasons for this conclusion are these.  Firstly, Mr Wilshaw’s opinion on the subject changed materially.  The concluding paragraphs of his first report dated 24 August 1998 read:
“6.6.  Ordinarily the majority of ground movement resulting from mining activities would be expected to occur contemporaneously with residual movement occurring over the following 12 to 18 months.  As such the majority of movement would now be expected to have occurred with further slight movement continuing at a diminishing rate until say the end of 1999.
6.7.  The geological setting provides the potential for ground movement for a considerable period of time.  However, for practical purposes it is suggested that permanent repairs be provisionally scheduled for say spring 1999.  The possibility of long term movement cannot, however, be discounted.  It is recommended that the property is monitored and the provisional date reviewed as necessary.  In the event that the Coal Authority deny liability, the date of repair may need to be postponed in recognition of potential litigation.”
39.	Mr Wilshaw accepted that the factors he had been considering in his 1998 report were effectively the same as those pertaining at the time of the hearing.  In our judgment, the 1998 advice that the possibility of long term movement “cannot be discounted” is inconsistent with the view Mr Wilshaw put forward at the hearing, namely that there was a high probability of further severe damage.  Indeed, in our view Mr Wilshaw’s insistence that there was no such inconsistency detracted from the overall reliability of his evidence.
40.	Secondly, Mr Wilshaw suggested in his 1998 report that the property should be monitored to ascertain the extent of any further movement.  Mr Horton subsequently provided similar advice to the compensating authority.  But whereas Mr Horton’s recommendation was acted upon by those instructing him, no further monitoring was carried out on behalf of the claimants.  Whilst it is common ground that the 16 month period, between November 2002 and March 2004, during which monitoring was undertaken for the compensating authority is shorter that would be necessary to confirm that no further movement could take place at the property, the onus is on the claimants to show that the works they propose are necessary.  Had monitoring commenced in 1998, shortly after Mr Wilshaw’s first report, the claimants would have been able by March 2004 to produce clear evidence of the extent of movement which had taken place over a period of five years or more.  Whilst not definitive, those results may well have been of assistance to the Tribunal.  In the event, Mr Wilshaw’s advice was not followed and so there is no reliable monitoring evidence before us to support the claimant’s case on this issue.
41.	The third reason arises from Mr Wilshaw’s suggestion that the foundations of the property had been damaged and not repaired, providing the potential for further movement.  Mr Horton did not agree.  He considered that the areas of structural damage to the property exploited points of weakness in the structure, such as discontinuities between the foundations.  In that connection, trial pits which had been dug outside the building showed that there were different types of foundation on either side of the damage.  Moreover, the absence of damage to the internal spine wall suggested that the foundations beneath it had not been damaged.  Mr Wilshaw said that the building had fractured not only along an axis of weakness, but also in line with the orientation of mine panels, trend of the fault, line of mining induced curvature and tensile strains.  The mining induced movement was therefore equally if not more relevant in influencing the line of damage.  In the course of cross-examination he accepted that his suggested trend line of the fault was based on conjecture.  The precise condition of the foundations could probably have been ascertained by inspecting them while the house was being demolished.  Although it appears that Mr Wilshaw asked to be able to carry out such an inspection, in the event he was only present at the site during the grubbing out of the foundations and not while each section of foundations was exposed.  On the limited available evidence, we find on the balance of probabilities that the foundations had not been damaged.
The Coal Authority’s proposed remedy and the claimants’ alternative “B”
42.	In view of our finding as to the risk of future movement, it is common ground that the appropriate remedial solution would be that proposed by the Authority, or Mr Snelson’s alternative “B”, or a combination of the two.  The Authority’s proposals are principally remedial works to the superstructure of the property, strengthening the existing walls with the use of the helibar system.  This is a system of stainless steel helical reinforcing bars which are inserted at different levels into bed joints either side of the cracks.  The joints are raked out to 35mm and the bars are bedded in using a special resin, the length of the bar being adjusted according to site conditions.  The joints are then mortared.  The bars are normally inserted in every three or four courses of brickwork, but this can vary depending on the type of enhancement required.  For example, an increased concentration of bars would be provided above and below window openings.  The helibar is used to enhance the ability of masonry to resist tensile stresses and reduce the risk of further damage.
43.	The main differences between the authority’s schedule of proposed works and the claimants’ alternative “B” – that is those items which are not in the authority’s scheme – are: the replacement of the porch; repairs to the roof; the extent of external works including those to the greenhouse and garage; underpinning or strengthening of existing foundations; increased scope of removal and replacement of floors for access purposes and increased scope of repairs to drainage.  We consider each of these items in turn.
REBUILDING OF PORCH
44.	The porch construction proposed by the claimants consists of a timber-framed structure, 0.55m x 1.20m complete with tiled roof.  The previous porch was dismantled so that the claimants’ advisors could inspect potential damage to the gable brick wall and it was considered impracticable to re-assemble it.  The authority’s scheme did not include the replacement of the porch.  Mr Horton considered that the original structure was not damaged by mining subsidence and its demolition did not detract from the property.  In the course of cross-examination he accepted that the original porch had performed a useful function.  In view of that, and since we accept that it was necessary to demolish the porch in order to ascertain the extent of the mining damage suffered by the property, we find that it was reasonable to replace the porch, the agreed cost of which is £3,500.
ROOF REMEDIAL WORKS
45.	The works proposed by scheme “B” comprise new timber roof tiles within the roof space on each side of the valley gutter over its complete length to compensate for loss of bearing of existing ceiling tiles.  The works also include replacement of the lead gutter and roof tiles locally to the valley gutter.  
46.	The movement of ceiling joints was noted by Mr Snelson from a close inspection above the entrance hallway at the west end of the property.  Other areas of the roof could not be inspected due to access limitations.  Mr Horton inspected the roof space from the access hatches and considered that there was less visible distress in the roof structure.  He did not make a close examination at the location indicated by Mr Snelson, but he accepted that some movement at the ceiling joist could have occurred at this point.  Mr Horton contended that a fuller examination of the condition of the ceiling joists bearing and gutter would need to have been carried out in order to justify the extent of roof repairs suggested.  He agreed, however, that there was some indication of movement along the line of the valley gutter in the form of damage to the ceiling coving in the rooms below.
47.	Mr Snelson’s inspection of the roof, although limited, was significantly more thorough than that of Mr Horton.  We accept his evidence on this issue.  It is agreed that the cost of the remedial work he suggested was £9,800.
GREENHOUSE/GARAGE FLOOR REPAIRS
48.	The floor repairs proposed by scheme “B” consist of breaking out and replacing a section of the floor slab in both structures.  Mr Horton contended that this was excessive.  He considered that an appropriate repair was to cut back along the line of the crack and make good using an epoxy mortar repair.  We find that Mr Horton’s proposal – which, it is agreed, would cost £250 – represented an adequate form of repair.
DRAINAGE WORK
49.	Scheme “B” provides for full replacement of the drainage system including 21 new manholes.  The authority’s scheme allows for the replacement of damaged drains only.  Under cross-examination, Mr Snelson accepted that there was nothing wrong in principle with the authority’s proposal, provided adequate care was taken to ensure that there were no gaps between different sections of drain.  We consider that the authority’s solution is an acceptable one.
YARD PAVINGS
50.	The authority’s scheme is based upon the repair of paving directly associated with drainage repairs and the installation of the helibar system.  The works in scheme “B” are more extensive due to the more substantial drainage repairs proposed by the claimants, existing cracking in the paving and reinstatement of falls to the paving.  In view of the conclusion we have reached on the extent of the necessary drainage work, and in the light of the condition of the existing paving as illustrated in the photographs which were produced, we find that the authority’s scheme is appropriate.
ADDITIONAL REMEDIAL WORKS
51.	The additional remedial works proposed in the claimants’ schedule include far more extensive redecoration and making good than the items in the authority’s schedule.  The latter allows for limited repair of some rooms only.  The reports disclosed by the authority did not explain how their decisions were reached or what reason there was for disputing the very detailed scope of work prepared on behalf of the claimants.  It seems likely that the decisions as to appropriate repair put forward by the authority were made by Mr Gilmore of Gleeds who did not produce a written report, and not Mr Beales of that firm, who did.  Mr Beales had not visited the property and Mr Horton was concerned only with issues of structural repair.  In the absence of any clear evidence to suggest that the claimants’ remedial scheme is unreasonable, we accept it.  The agreed cost of the additional work is £4,420.
BRICKWORK AND PLASTER REPAIRS
52.	The claimants’ scheme includes for the demolition and replacement of substantial sections of wall.  The authority’s scheme merely provides for the replacement of two sections of bulging brickwork below DPC level on the eastern elevation.  The lateral displacement of this brickwork increased from 10 mm in September 1998 to 20 mm in May 2002.  Otherwise, Mr Horton contended that repair, particularly with the helibar strengthening system, was adequate and then it was unnecessary to remove large amounts of brickwork and to replace it.  We accept Mr Horton’s evidence on this issue.  
REPAIRS TO EXISTING FOUNDATIONS AND NEW FOUNDATIONS TO REBUILT WALLS
53.	Scheme “B” includes the underpinning/strengthening of foundations to the spine wall and the provision of new foundations to rebuilt sections of wall.  We have found that the existing foundations had not been damaged and that, apart from the small area of bulging brickwork, the large-scale rebuilding of walls was not justified.  We therefore accept the authority’s approach on this issue.
REMAINING REPAIR ITEMS OF DIFFERENCE
54.	The remaining items in dispute were contingent upon other works which the claimants contended were necessary but which we have found were not.  
Miscellaneous items
ALTERNATIVE ACCOMMODATION AND STORAGE
55.	Mr Martin acquired some accommodation in Staffordshire to cover visits to the area during the period between the demolition of Hillside Lodge and completion of the new property.  The total claimed was £2,000 for rent plus electricity charges of £39.43.  The claimants also claimed the cost of storing furniture between February and June 2004 at the rate of £122.20 per month.  The acquiring authority accept that, if their suggested scheme had been performed, costs would have been incurred in connection with alternative accommodation, although they say that there would have been no storage charges.  They submit, however, that there is no legal entitlement to compensation for accommodation and storage costs which might have been incurred but were not.  We accept that submission.  In any event, we are not satisfied on the evidence that it was necessary for the claimants to incur any storage charges.
HOME LOSS PAYMENT
56.	The claimants’ claimed to be entitled to a home loss payment under the 1991 Act.  Under section 22 of and Schedule 4 to the Act where, due to subsidence damage, a dwelling-house cannot reasonably be rendered fit to be used as such a person displaced from the house is entitled to a home loss payment.  Since we have concluded that the property was capable of being rendered fit for continued use as a dwelling-house it follows that no question of a home loss payment can arise. 
REMOVAL COSTS
57.	The claimants’ final schedule of loss contains a number of items of claim, totalling £315.25, which were connected to Mrs Martin’s move to her holiday home in Devon.  These items were said to be claimed on the same basis as the home loss payment.  Since we have found that there is no legal entitlement to a home loss payment, it follows that these items are not allowable either.  In any event, we are not satisfied on the evidence that Mrs Martin’s move to Devon was caused by the condition of Hillside Lodge, rather than by personal considerations.
MILEAGE
58.	On the assumption that scheme “B” represented the appropriate form of remedial works, the claimants claim £5,625.20, representing the cost of an average of one return trip per month by Mr Martin from Staffordshire to visit his wife in Devon at the rate of 35p per mile for the return journey of 420 miles each time.  As we have indicated above in connection with removal costs, we are not satisfied that Mrs Martin’s move to Devon resulted from the damaged condition of the property.  We therefore disallow this item of claim.
TEMPORARY REPAIRS
59.	The claimants claim a total of £841.10 in respect of various minor repairs to the property carried out between November 1995 and June 2000.  In closing, Mr Mort accepted that the first item, amounting to £146.60, arose before the damage notice was served and was therefore not recoverable.  So far as the remaining repairs were concerned, Mr Mort said that the claim was justified because the defects would have been remedied by the authority had they complied with their obligations once the damage notice was served.
60.	In response Mr Darling said that there was no evidence to prove that the works in question were necessary to repair mining subsidence damage.  Moreover, it was only possible to claim for emergency repairs if the works were necessary in order that the damaged property might continue to be used for the purpose for which it was used immediately before the damage became evident.  No attempt had been made so to allege in this case.  Furthermore, the authority was not required to make any payment unless the claimants had given notice to the authority in accordance with section 12(2).  Mrs Martin’s evidence was that no notice had been given because the matter was being dealt with by the insurers and it was to them that Mr and Mrs Martin had looked.  
61.	We accept Mr Darling’s submission that there was no evidence to show that the temporary repairs claimed for were necessary to remedy mining subsidence damage.  This item of claim therefore fails. 
PROFESSIONAL FEES
62.	The claim includes the professional fees incurred in connection with the necessary remedial works.  Mr Darling submitted that such fees were not a valid item of claim.  Section 6 referred to the cost of executing the work.  Were this work to have been executed by the authority, no professional fees would have been incurred.  Accordingly, there was no basis for their inclusion in the section 6 schedule.  The relevant words of section 6(2)(b) were “in order to secure that the work is executed”.  That referred to the cost of execution of work and not professional fees.
63.	Mr Mort, on the other hand, argued that there was no basis for the assertion that the Tribunal was only concerned with the costs of the work.  The expression “in order to secure that the work is executed” went wider than “in order to execute the works”; it included the costs of procuring the work.  We accept Mr Mort’s submission on this issue.  It is agreed that the professional fees which would be incurred in connection with scheme “B” would be 19.7% of the construction costs.  The works which we have found to be necessary are much less substantial than for scheme “B”.  In the absence of any more evidence on the matter we find that fees for those works would have totalled 15% of their net cost. 
Conclusion
64.	The compensation payable to the claimants is therefore £53,958, calculated as follows:
Agreed price of authority’s scheme		£28,950.00	
Rebuilding porch		£  3,500.00	
Roof works		£  9,800.00	
Greenhouse/garage floor repairs		£     250.00	
Additional remedial works		£  4,420.00	
		£46,920.00	
Professional fees @ 15%		£  7,038.00	
		£53,958.00	

65.	This decision will not take effect until the issue of costs has been determined, and a letter on this accompanies this decision.
		Dated:  6 July 2005

		George Bartlett QC, President

		N J Rose FRICS