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Coal Mining Subsidence Act 1991

Status:

This is the original version (as it was originally enacted).

Disputes and complaints

40Disputes: general

(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 Corporation 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 Corporation 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 Corporation to carry out any such obligations.

41Disputes about withholding of agreement or consent

(1)This section applies where in the case of any property—

(a)the agreement or consent of two or more persons is required for the Corporation to exercise any power conferred by section 5(3) or (5), 10(2)(b) or 33(2)(a) above; and

(b)the Corporation have reached agreement with or obtained the consent of one or more, but not both or all, of those persons.

(2)If, on an application made by any of those persons or the Corporation, it appears—

(a)in the case of property in England and Wales, to a county court; or

(b)in the case of property in Scotland, to the sheriff,

that any person whose agreement or consent is so required has withheld his agreement or consent unreasonably, the court or the sheriff may order that the provision conferring the power in question shall apply in the case of the property as if the Corporation had reached agreement with or obtained the consent of that person.

42Disputes about access etc. to premises

(1)If the occupier of any premises refuses to afford the Corporation such facilities as they may require for the purposes of any provision of this Act (other than section 36 above) to enter upon, inspect and execute works on those premises, then—

(a)in the case of premises in England and Wales, a magistrates' court on a complaint made by the Corporation;

(b)in the case of premises in Scotland, the sheriff on an application so made,

may confer such powers to enter, inspect and execute works on the premises as may appear to the court or the sheriff to be necessary, and may order the occupier to permit the exercise of those powers.

(2)Nothing in subsection (1) above shall apply to any premises occupied by or on behalf of the Crown.

43Determination of disputes by arbitration

(1)The Secretary of State may give directions to the Corporation—

(a)requiring them, before a date specified in the directions, to make and submit for his approval a scheme making arbitration available for the determination of any dispute arising under this Act which is of a description so specified; and

(b)imposing requirements with respect to the terms on which arbitration is to be made available under the scheme.

(2)Such directions may also require a scheme to include—

(a)provision for the appointment of a person independent of the Corporation to be responsible for ensuring the proper operation of the scheme and for the provision of advice about the scheme to persons who may wish to have a dispute determined under it;

(b)provision for the making of reports about the operation of the scheme, or the furnishing of information, to any person; and

(c)such other provision as the Secretary of State considers necessary or expedient.

(3)Where a scheme is submitted to the Secretary of State in pursuance of such directions—

(a)the scheme may be approved by him with or without modifications; and

(b)approval may be given for the scheme for a period specified in the approval;

and the Secretary of State may at any time withdraw approval for a scheme which is approved under this subsection.

(4)While it is in force, a scheme approved under subsection (3) above—

(a)shall have effect, in relation to any dispute to which it relates, as a binding offer of arbitration by the Corporation on the terms specified in the scheme; and

(b)shall be treated, in relation to any dispute referred to arbitration under it, as an arbitration agreement.

(5)If the Corporation fail to comply with any directions under subsection (1) above, the Secretary of State may himself make such a scheme as is mentioned in that subsection; and a scheme so made shall have effect as if it were an approved scheme made by the Corporation.

44Time limits for certain disputes

(1)This section applies to any question arising under this Act as to whether the Corporation are in breach of their remedial obligation in respect of any subsidence damage.

(2)No question to which this section applies shall be heard and determined by any tribunal, court or other person unless the necessary reference is made, or the necessary proceedings are instituted, before the end of whichever of the following periods last expires, namely—

(a)the period of three years beginning with the earliest date on which the Corporation are in breach of their remedial obligation; and

(b)the period allowed by section 3 above for giving a damage notice with respect to the damage (the period of six years beginning with the date given by subsection (3) of that section).

(3)For the purposes of subsection (2) above, any period during which the Corporation’s remedial obligation is subject to the terms of a stop notice shall be disregarded.

45Investigation of complaints

(1)The Secretary of State may give directions to the Corporation—

(a)requiring them, before a date specified in the directions, to make and submit for his approval a scheme for the investigation and determination of complaints about matters arising under this Act which are of a description so specified; and

(b)imposing requirements with respect to the terms on which such complaints are to be investigated and determined under the scheme.

(2)Such directions may also require a scheme to include—

(a)provision for the appointment of a person independent of the Corporation (“the adjudicator”) to be responsible for ensuring the proper operation of the scheme and for the provision of advice about the scheme to persons who may wish to make complaints under it;

(b)provision as to the action to be taken by the Corporation in response to determinations under the scheme;

(c)provision for the making of reports about the operation of the scheme, and the giving of information, to any person; and

(d)such other provision as the Secretary of State considers necessary or expedient.

(3)Where a scheme is submitted to the Secretary of State in pursuance of such directions—

(a)the scheme may be approved by him with or without modifications; and

(b)approval may be given for the scheme for a period specified in the approval;

and the Secretary of State may at any time withdraw approval for a scheme which is approved under this subsection.

(4)While a scheme approved under subsection (3) above is in force—

(a)the adjudicator shall investigate and determine any qualifying complaint which is duly made and shall discharge any other obligations imposed on him by the scheme; and

(b)the Corporation shall discharge any obligations so imposed on them.

(5)In subsection (4) above “qualifying complaint”, in relation to an approved scheme, means a complaint which—

(a)relates to anything done or omitted to be done by the Corporation in connection with any matter arising under this Act which is of a description specified in the scheme; and

(b)is made on the ground that the act or omission complained of—

(i)constitutes unfair treatment or maladministration on the part of the Corporation or any person acting on their behalf; and

(ii)has caused loss, expense or inconvenience to the complainant; and

(c)is not excluded from investigation and determination by or under the scheme.

(6)If the Corporation fail to comply with any directions under subsection (1) above, the Secretary of State may himself make such a scheme as is mentioned in that subsection; and a scheme so made shall have effect as if it were an approved scheme made by the Corporation.

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