Coal-Mining (Subsidence) Act 1957 (repealed 30.11.1991)

Coal-Mining (Subsidence) Act 1957

1957 CHAPTER 59 5 and 6 Eliz 2

An Act to provide for the execution of remedial works and the making of payments in respect of damage caused by subsidence resulting from the working and getting of coal or of coal and other minerals worked therewith; for the execution of works to prevent or reduce such damage; for the carrying out of remedial or preventive measures in connection with land drainage affected or likely to be affected by such damage; and for purposes connected with the matters aforesaid.

[31st July 1957]

Modifications etc. (not altering text)

C1 Act amended (E.W.) by Water Act 1989 (c. 15, SIF 130), s. 190(1), Sch. 25 para. 1(2)(vii) (with ss. 58(7), 101(1), 141(6), 160(1)(2)(4), 16, 189(4)–(10), 190, 193(1), Sch. 26 paras. 3(1), 17, 40(4), 57(6), 58)

1 Duty of National Coal Board in respect of subsidence damage. E+W+S

(1) This Act shall apply in relation to any subsidence damage occurring after the passing of this Act; and in this Act the expression “subsidence damage” means any damage (including an alteration of the level or gradient of property not otherwise damaged such as to affect the fitness of that property for use for the purposes mentioned in the next following subsection)—

(a) to a building or structure or to any of the following works, that is to say, any sewer or drain situated in a building or structure which it serves and any pipes, wires or other fixed apparatus installed in a building or structure for the purpose of providing gas, electricity, water, heating or telephone services for use in that building or structure, and any fixed apparatus (other than pipes or wires) installed outside, but within the curtilage of, a building or structure for the purpose of supplying any such service as aforesaid to that building or structure for use therein; or

(b) to works of the following descriptions, that is to say, sewers, drains, and any pipes or wires for the supply of gas, electricity, water, heating, telephone or other comparable services, being either works situated outside any building or structure or works in the nature of mains situated in a building or structure in which they neither begin nor end; or

(c) to any land, not being damage to that land only as the site of an existing building or structure or of existing works such as are mentioned in the two foregoing paragraphs and being damage such as to affect the fitness of that land for use for the purposes mentioned in the next following subsection,

caused by the withdrawal of support from land in connection with the lawful working and getting of coal, or of coal and other minerals worked therewith, or the lawful getting of any product from coal in the course of working it, not being-

(i) damage caused in connection with the working and getting of coal and other minerals where the working and getting of the coal was ancillary to the working of those other minerals; or

(ii) damage caused in connection with the working and getting of coal or of coal and other minerals by virtue of the grant of a gale in the Forest of Dean or any other part of the Hundred of St. Briavels in the county of Gloucester.

(2) Subject to the provisions of this Act, as soon as reasonably practicable after the occurrence of any subsidence damage [F1 the British Coal Corporation (in this Act referred to as “the Corporation”]shall execute such works (in this Act referred to as “remedial works”) as may be necessary to render the damaged property reasonably fit for use for the purposes for which, at the date immediately before the damage occurred, it was or might in all the circumstances reasonably have been expected to be used:

Provided that no works shall be deemed to be necessary as aforesaid over and above such as may be sufficient to render the property not less fit for those purposes than it was at that date.

In this subsection the expression “works” includes works of redecoration.

(3) Subject to the provisions of this Act, the [F2 Corporation] may, instead of executing remedial works under the last foregoing subsection, elect—

(a) to make a payment equal to the cost reasonably incurred by any other person in executing remedial works; or

(b) in a case where it is proposed to merge the execution of other works in connection with the damaged property with the execution of any remedial works or to redevelop, instead of executing remedial works in connection with, the damaged property, to make payments equal to any sums from time to time shown to have been expended by any other person in executing the merged works or, as the case may be, the redevelopment works up to an aggregate amount equal to the expenditure which it is estimated would have been incurred by the [F2 Corporation]or by any other person, whichever estimate is the less, in executing remedial works in connection with the damaged property;

and, without prejudice to the next following subsection, the [F2 Corporation]—

(i) where the damaged property is a [F3 highway maintainable or repairable by the inhabitants at large or a highway in Scotland managed and maintained by the Secretary of State or by a [F4 regional or islands] council][F3 public road (within the meaning of the Roads (Scotland) Act 1984]; or

(ii) in any case where the execution of remedial works falls within a duty with respect to the damaged property imposed by virtue of any enactment on a government department, local authority or statutory undertakers in connection with the maintenance of public services; or

(iii) where it is certified by the Minister, on an application made to him by any other person or of his own motion, that in his opinion it is not in the public interest that the [F2 Corporation] should themselves execute the remedial works,

shall make the appropriate election under this subsection, and, in any other case where it is proposed to execute such merged works or redevelopment works as aforesaid or where the remedial works required are of a special character not suitable for execution by the [F2 Corporation], shall not unreasonably refuse any request to make the appropriate election under this subsection received from a person entitled to serve a damage notice in respect of the property:

Provided that the [F2 Corporation]shall not be deemed to act unreasonably in refusing any such request received after the [F2 Corporation]have begun to execute remedial works.

(4) Subject to the provisions of this Act, if in the case of any property affected by subsidence damage—

(a) the reasonable cost of executing remedial works would, in the opinion of the [F5 Corporation], exceed the amount of the depreciation in the value of the property caused by the damage; or

(b) the property is a dwelling-house and it appears to the [F5 Corporation] that a notice to treat for the compulsory purchase thereof is likely to be served under [F6 Part IX of the Housing Act 1985]or [F7 Part III of the M1 Housing (Scotland) Act 1950][F7 Part IV and VI of the Housing (Scotland) Act 1987](which relate to clearance and redevelopment) in such circumstances that compensation payable for the purchase will fall, but if the subsidence damage had not occurred would not have fallen, to be assessed subject to [F8 section 587 of the said Act of 1985] or, as the case may be, [F9 subsection (2) of section thirty-six of the said Act of 1950][F9 paragraph 12(2) of Schedule 8 to the said Act of 1987](which provide for compensation by reference to site value); or

(c) the property is a dwelling-house and it appears to the [F5 Corporation] that a clearance order under [F10 the said Part III]is likely to be made in respect thereof in such circumstances that the making of the clearance order will be attributable to the subsidence damage,

the [F5 Corporation] may, instead of executing any works or making any payment under the foregoing provisions of this section, elect to make a payment equal to the amount mentioned in paragraph (a) of this subsection; and if in the case of any dwelling-house affected by subsidence damage the [F5 Corporation]do not elect to make a payment under this subsection but, before the completion of remedial works or, in a case falling within paragraph (b) of the last foregoing subsection, before all sums in respect of which the [F5 Corporation]are liable to make payments have been expended, a notice to treat is served [F11 under Part IX of the said Act of 1985 or Part III of the said Act of 1950]either in respect of the dwelling-house in such circumstances as are mentioned in paragraph (b) of this subsection or in respect of the cleared site of the dwelling-house, or a clearance order is made under [F11 the said Part III]in such circumstances as are mentioned in paragraph (c) of this subsection, then, notwithstanding and without prejudice to any expenditure or liability of the [F5 Corporation]in respect of works already executed, the shall make a payment in respect of the dwelling-house equal to the amount mentioned in paragraph (a) of this subsection in like manner as if they had originally elected so to do under paragraph (b) or (c) thereof and shall be absolved from any further obligations in respect of the dwelling-house under the two last foregoing subsections:

Provided that the [F5 Corporation]shall not make a payment under paragraph (a), (b) or (c) of this subsection—

(i)

in respect of subsidence damage to any agricultural land or to any building or structure occupied in connection with such land except after consultation with the Minister of Agriculture, Fisheries and Food or, in the case of property situated in Scotland, the Secretary of State; or

(ii)

in respect of subsidence damage to a dwelling-house except after consultation with [F12 the local housing authority within the meaning of the Housing Act 1985]or, in Scotland [F13 the local authority]for the purposes of the M2 Housing (Scotland) Act [F14 1950][F14 1987]in whose area the dwelling-house is situated,

and if such a payment is made in respect of a dwelling-house the local authority aforesaid shall not in the exercise of any power to require the repair of that dwelling-house require the execution of any works of repair in respect of that subsidence damage.

(5) Notwithstanding anything in the foregoing provisions of this section, but subject to the provisions of this Act, the [F15 Corporation]shall, if works of a temporary nature urgently and reasonably required in order that the damaged property may continue to be used for the purposes for which it was used immediately before the damage occurred or in order to prevent further damage to that property arising from the subsidence damage (in this Act referred to as “emergency works”) have been executed by any other person, make a payment equal to the cost reasonably incurred in executing those works.

(6) Where a dwelling-house is affected by subsidence damage, the provisions of the First Schedule to this Act shall have effect.

(7) The provisions of the Second Schedule to this Act shall have effect for the purpose of determining—

(a) the unit of property to be taken into account for the purposes of subsection (4) of this section as being affected by subsidence damage;

(b) the amount of the depreciation in the value of any such unit caused by the damage; and

(c) the persons who are to receive any payments made under subsection (3), (4) or (5) of this section.

Textual Amendments

F1 Words substituted by Coal Industry Act 1987 (c. 3, SIF 86), s. 1(1)(2), Sch. 1 para. 5(a)

F2 Word substituted by Coal Industry Act 1987 (c. 3, SIF 86), s. 1(1)(2), Sch. 1 para. 5(b)

F3 Words commencing “highway maintainable” to “islands council” substituted (S.) by “public road (within the meaning of the Roads (Scotland) Act 1984” by Roads (Scotland) Act 1984 (c. 4, SIF 108), ss. 128(1), 156(1), Sch. 9 para. 46

F4 Words substituted by Local Government (Scotland) Act 1973 (c. 65), Sch. 27 Pt. II para. 132

F5 Word substituted by Coal Industry Act 1987 (c. 3, SIF 86), s. 1(1)(2), Sch. 1 para. 5(b)

F6 Words substituted by Housing (Consequential Provisions) Act 1985 (c. 71, SIF 61), s. 4, Sch. 2 para. 2(2)(a)

F7 In s. 1(4) in para. (b) for “Part III of the Housing (Scotland) Act 1950” there is substituted (S.) (15.8.1987) “Part IV and VI of the Housing (Scotland) Act 1987” by Housing (Scotland) Act 1987 (c. 26, SIF 61), s. 339, Sch. 23 para. 7(1)

F8 Words substituted by Housing (Consequential Provisions) Act 1985 (c. 71, SIF 61), s. 4, Sch. 2 para. 2(2)(a)

F9 In s. 1(4) in para. (b) for “subsection (2) of section thirty-six of the said Act of 1950” there is substituted (S.) “paragraph 12(2) of Schedule 8 to the said Act of 1987” by Housing (Scotland) Act 1987 (c. 26, SIF 61), s. 339, Sch. 23 para. 7(1)

F10 Words substituted by Housing (Consequential Provisions) Act 1985 (c. 71, SIF 61), s. 4, Sch. 2 para. 2(2)(b)

F11 Words substituted by Housing (Consequential Provisions) Act 1985 (c. 71, SIF 61), s. 4, Sch. 2 para. 2(2)(c)

F12 Words substituted by Housing (Consequential Provisions) Act 1985 (c. 71, SIF 61), s. 4, Sch. 2 para. 2(2)(d)

F13 Words inserted by Housing (Consequential Provisions) Act 1985 (c. 71, SIF 61), s. 4, Sch. 2 para. 2(2)(d)

F14 In the proviso to s. 1(4) in sub-para (ii) for “1950” there is substituted (S.) “1987” by Housing (Scotland) Act 1987 (c. 26, SIF 61), s. 339, Sch. 23 para. 7(2)

F15 Word substituted by Coal Industry Act 1987 (c. 3, SIF 86), s. 1(1)(2), Sch. 1 para. 5(b)

Modifications etc. (not altering text)

C2 S. 1(4)(b) by Housing (Scotland) Act 1987 (c. 26, SIF 61), s. 339, Sch. 23 para. 7(1) it is provided (S.) that the words “and clearance” shall cease to have effect

Marginal Citations

M1 1950 c. 34.

M2 1950 c. 34.

2 Notices to be given to or by Corporation. E+W+S

(1) The [F16 Corporation] shall not be required to execute any works or make any payment under subsections (2) to (5) of the foregoing section in respect of subsidence damage to any property unless the owner of the property or some other person who is liable to make good the damage in whole or in part has given notice in writing to the [F16 Corporation] of the occurrence of the damage in such manner, within such time, and containing such particulars, as may be prescribed (in this Act referred to as a “damage notice”) and has afforded the [F16 Corporation]reasonable facilities to inspect the property, so far as he was in a position to afford such facilities.

(2) As soon after receiving from any person a damage notice or a request to exercise their power of election under subsection (3) of the foregoing section as is reasonably practicable having regard among other things to the provisions of sections six, nine and ten of this Act, the [F16 Corporation]shall consider whether or not to exercise their powers of election under the said subsection (3) or under subsection (4) of the foregoing section and give notice in writing of their decision to the person aforesaid; and, without prejudice to subsection (3) of the next following section, where the [F16 Corporation]have given notice that they elect to make a payment under one or the other of those subsections they shall not revoke that election except with the agreement of all persons to whom they have given notice thereof or who have served on the [F16 Corporation]a notice under the next following subsection:

Provided that if the [F16 Corporation]serve a notice under subsection (2) of the next following section in respect of any works in connection with the damaged property, the [F16 Corporation]shall not be required to serve a notice under this subsection in respect of those works until the notice under the said subsection (2) ceases to be in force in respect thereof.

(3) The [F16 Corporation]shall not be required to make any payment under subsection (3) of the foregoing section in respect of any works executed by any other person in connection with any property unless that person has given notice in writing to the [F16 Corporation], in the prescribed manner and, except in such circumstances as may be prescribed, at the prescribed interval before the works are begun, containing adequate particulars thereof, and has afforded the [F16 Corporation]reasonable facilities to inspect the property, so far as he was in a position to afford such facilities.

(4) The [F16 Corporation]shall not be required to make any payment under subsection (5) of the foregoing section in respect of any emergency works executed by any other person in connection with any property—

(a) unless that person has given to the [F16 Corporation]in writing as soon as was reasonably practicable in all the circumstances notice and adequate particulars of those works, and has afforded the [F16 Corporation]reasonable facilities to inspect the property, so far as he was in a position to afford such facilities; or

(b) if the emergency works are executed after the [F16 Corporation]have given notice under subsection (2) of this section that they elect to make a payment in respect of the damaged property under subsection (4) of the foregoing section.

(5) Where the [F16 Corporation]have given notice under subsection (2) of this section to the person by whom a damage notice was served that they propose to execute remedial works under subsection (2) of the foregoing section, the [F16 Corporation], if so requested by that person at any time before these works are completed, shall give to that person in writing adequate information with respect to any of those works still remaining to be executed.

Textual Amendments

F16 Word substituted by Coal Industry Act 1987 (c. 3, SIF 86), s. 1(1)(2), Sch. 1 para. 5(b)

3 Cases where further damage is likely or occurs. E+W+S

(1) The next following subsection shall apply in any case where a damage notice has been served on the [F17 Corporation]in respect of any property and it appears to the [F17 Corporation]to be probable that further subsidence damage will occur to that property within such a period as would make it unreasonable that all or any of the permanent works which would otherwise fall to be executed in connection therewith should be executed for the time being.

(2) In any case to which this subsection applies, the [F17 Corporation]may serve on any person to whom, by virtue of any of the foregoing provisions of this Act, they have an obligation in respect of the damage to which the damage notice in question relates notice in writing to the effect that, except for emergency works and except for such other works, if any, as may be specified in the notice, the [F17 Corporation]will neither execute any works while the notice remains in force nor make any payment in respect of works executed while the notice remains in force; and, except in such circumstances as may be prescribed, the obligations of the [F17 Corporation]to that person by virtue of the foregoing provisions of this Act shall be subject to the terms of that notice:

Provided that it shall be the duty of the [F17 Corporation]to revoke any notice given by them under this subsection as soon as works in connection with the property in addition to emergency works and those works, if any, specified in the notice can reasonably be executed, and any person aggrieved by a failure of the [F17 Corporation]to specify any works in or to revoke such a notice may apply to the county court or, where the property is situated in Scotland, to the sheriff, and the court or, as the case may be, the sheriff may, if it appears in all the circumstances to be reasonable so to do, order that the notice shall be deemed to specify such additional works as may be specified in the order or, as the case may be, shall cease to have effect, and that order shall come into force when the period for an appeal therefrom expires or, if such an appeal is made, on the date when that appeal is dismissed or abandoned.

(3) Where in the case of any property a damage notice has been served on the [F17 Corporation]and before remedial works or any works undertaken in pursuance of an election under paragraph (b) of subsection (3) of section one of this Act have been completed or the aggregate of any sums expended in executing any works undertaken as aforesaid has reached the aggregate amount referred to in that paragraph, and without the [F17 Corporation]having given notice under subsection (2) of the last foregoing section that they elect to make a payment under subsection (4) of section one of this Act, further subsidence damage occurs to that property, the damage referred to in the damage notice and that further damage shall be treated as one, and accordingly—

(a) references in this Act to the time immediately before or immediately after the occurrence of the damage shall be construed as references to the time immediately before the occurrence of the damage referred to in the damage notice or immediately after the occurrence of the further damage, as the case may be;

(b) any notice under the said subsection (2) served before the occurrence of the further damage shall cease to have effect, the foregoing provisions of this Act shall apply as if that notice had not been given, and the reference to remedial works in the proviso to the said subsection (3) shall not include any remedial works begun before the occurrence of the further damage; and

(c) a fresh damage notice shall only be required if, before the occurrence of the further damage, notice had been served under the said subsection (2) of an election under the said subsection (3):

Provided that the [F17 Corporation]shall be under the like liability, if any, with respect to the cost of any works executed before the occurrence of the further damage as if that further damage had not occurred.

Textual Amendments

F17 Word substituted by Coal Industry Act 1987 (c. 3, SIF 86), s. 1(1)(2), Sch. 1 para. 5(b)

4 Powers of Corporation with respect to preventive works. E+W+S

(1) Where it appears to the [F18 Corporation]that subsidence damage is likely to occur to any building or structure or to any such works as are mentioned in paragraph (a) or (b) of subsection (1) of section one of this Act, being a building, structure or works for the time being in existence, and that the execution of certain works (in this section referred to as “preventive works”) on that property, or on that property and some other property which would benefit from those preventive works, would prevent the occurrence or reduce the extent of such damage, they may—

(a) with the consent of all persons who are owners of any property on which the preventive works would fall to be executed or who would be liable to make good in whole or in part subsidence damage to any of that property, execute the preventive works; or

(b) upon undertaking to pay any cost reasonably incurred in the execution of the preventive works, require their execution by the owner of the property on which they would fall to be executed or any other person who would be liable as aforesaid in respect thereof.

(2) If in the case of any property any person unreasonably withholds his consent to the execution of preventive works thereon by the [F18 Corporation]under this section or unreasonably fails to comply with any requirement to execute such works made by the [F18 Corporation]under this section, and subsidence damage subsequently occurs to the property, then—

(a) if the damage could have been prevented by the execution of the preventive works, the [F18 Corporation]shall not be required to execute any works or make any payment under subsections (2) to (5) of section one of this Act in respect of that damage;

(b) if the extent of the damage could have been reduced by the execution of the preventive works, the [F18 Corporation]shall not be liable under the said subsections (2) to (5) to execute, or make any payment in respect of the execution of, any works which would not have been required if the preventive works had been executed;

(c) if the property is a dwelling-house, the person aforesaid shall not be entitled to serve a notice in respect thereof under paragraph 4 of the First Schedule to this Act nor to receive any relief under that Schedule:

Provided that—

(i) where different consents are required in respect of different parts of any property, those different parts shall be treated as different properties for the purposes of this subsection;

(ii) paragraphs (a) and (b) of this subsection shall not apply in the case of a failure to comply with a requirement under this section if the failure is the result of an express refusal to comply or permit compliance by one or more, but not both or all, of two or more persons whose compliance or permission is necessary;

(iii) the withholding by any person of consent to the execution of preventive works on any property by the [F18 Corporation]shall not be deemed to be unreasonable in a case which, if those works were remedial works consequent upon subsidence damage to that property, would fall within paragraph (i), (ii) or (iii) of subsection (3) of section one of this Act.

(3) Where in the case of any property the consent of two or more persons is required for the execution of preventive works by the [F18 Corporation]under this section and such consent has been withheld by one or more, but not both or all, of those persons, then, if it appears to a county court or, where the property is situated in Scotland, to the sheriff, on an application made by any of those persons or by the [F18 Corporation], that any of those consents has been withheld unreasonably, the court or the sheriff may order that this section shall have effect as if that consent had been given.

Textual Amendments

F18 Word substituted by Coal Industry Act 1987 (c. 3, SIF 86), s. 1(1)(2), Sch. 1 para. 5(b)

5 Special provisions with respect to damage affecting land drainage. E+W+S

(1) Subject to the two next following subsections, the [F19 Corporation]shall, in any area in England and Wales outside the Doncaster Drainage Area within the meaning of the M3 Doncaster Area Drainage Act 1929 from time to time carry out such, if any, measures (in this section referred to as “remedial measures”) for remedying, mitigating or preventing any deterioration in any land drainage system by reason of subsidence damage which has occurred or appears likely to occur, being a drainage system maintainable by a drainage authority, as may be agreed between the [F19 Corporation]and the appropriate drainage authority, or, in default of such agreement, as may be determined in the manner provided by regulations under subsection (5) of this section, to be in all the circumstances reasonably required and not unjustifiable on economic grounds, and any such remedial measures shall be carried out in accordance with such arrangements as to the timing thereof as may be agreed or determined as aforesaid.

(2) Without prejudice to the next following subsection, the [F19 Corporation]may elect, in respect of all or any of the remedial measures aforesaid, not to carry out those measures themselves but—

(a) to make to the appropriate drainage authority a payment equal to the cost reasonably incurred by that authority in carrying out those measures; or

(b) if that authority propose to merge the carrying out of those measures with the execution of other works, to make to the authority payments equal to any sums from time to time shown to have been expended by the authority in carrying out the merged operations up to such aggregate amount as may be agreed or determined as aforesaid to be reasonable in all the circumstances having regard to the expenditure which would have been incurred respectively by the [F19 Corporation]or by the authority in carrying out the remedial measures;

and the [F19 Corporation], in a case where the remedial measures fall to be carried out in connection with property comprised in a main river for the purposes of [F20 the M4 Land Drainage Act 1976], shall make the appropriate election under this subsection and in any other case shall not unreasonably refuse any request to make the appropriate election under this subsection received from the appropriate drainage authority:

Provided that the [F19 Corporation]shall not be deemed to act unreasonably in refusing any such request received after the [F19 Corporation]have begun to carry out the remedial measures.

(3) Notwithstanding anything in the two last foregoing subsections, in any case where it is agreed or determined as aforesaid to be appropriate, the liability of the [F19 Corporation]for the cost of any recurring remedial measures may be discharged by a lump sum payment agreed or determined as aforesaid to represent the capital amount of that cost.

(4) Subsection (2) of section three of this Act shall apply in any case where a damage notice has been served on the [F19 Corporation]in respect of any property and the [F19 Corporation]are of opinion with respect to all or any of the permanent works which would otherwise fall to be executed in connection with the property that the necessity for, or the nature or manner of execution of, those works is likely to be so affected by operations under this section or under Part II of the M5 Doncaster Area Drainage Act 1929, as to make it unreasonable that those works should be executed for the time being.

(5) Regulations made by the Minister and the Minister of Agriculture, Fisheries and Food, acting jointly—

(a) shall make provision with respect to the procedure to be followed by the [F19 Corporation]and by the appropriate drainage authority in giving effect to the provisions of this section and for the determination of questions arising under this section between the [F19 Corporation]and the appropriate drainage authority; and

(b) may contain such incidental and supplementary provisions as the Ministers aforesaid may consider expedient.

(6) The [F19 Corporation]shall, for the purpose of carrying out any remedial measures under this section, have the like powers of surveying and entering on any land and of doing anything thereon as are conferred on the appropriate drainage authority by the enactments relating to land drainage:

Provided that this subsection shall not apply in relation to any land occupied by or on behalf of the Crown.

(7) In this section, the expression “the appropriate drainage authority” means, in a case where the remedial measures would fall to be carried out either in connection with a main river for the purposes of [F20 the M6 Land Drainage Act 1976], or outside any internal drainage district as defined by [F21 that Act, the National Rivers Authority or, in any other case, the internal drainage board (as defined as aforesaid) in whose district]the remedial works would fall to be carried out.

Textual Amendments

F19 Word substituted by Coal Industry Act 1987 (c. 3, SIF 86), s. 1(1)(2), Sch. 1 para. 5(b)

F20 Words substituted by virtue of Land Drainage Act 1976 (c. 70), Sch. 6 para. 9

F21 Words substituted by Water Act 1989 (c. 15, SIF 130), s. 190(1), Sch. 25 para. 23 (with ss. 58(7), 101(1), 141(6), 160(1)(2)(4), 16, 189(4)–(10), 190, 193(1), Sch. 26 paras. 3(1), 17, 40(4), 57(6), 58)

Marginal Citations

M3 1929 c. xvii.

M4 1976 c. 70.

M5 1929 c. xvii.

M6 1976 c. 70.

6 Avoidance of double remedies. E+W+S

(1) A person entitled to serve a damage notice in respect of subsidence damage to any property shall not be entitled to proceed at the same time in respect of the same damage to that property with both—

(a) a claim against the [F22 Corporation] by virtue of subsections (2) to (5) of section one of this Act; and

(b) a claim against the [F22 Corporation]or a licensee of the [F22 Corporation]for damages or compensation under a liability arising apart from this Act,

but subject to the next following subsection may elect which of those claims he will proceed with for the time being.

(2) Where any person proceeds with a claim such as is mentioned in paragraph (a) or, as the case may be, paragraph (b) of the foregoing subsection, then unless—

(a) it is determined, whether by agreement or otherwise, that he is entitled to none of the relief claimed; or

(b) the claim is withdrawn before it is determined,

he shall not be entitled to proceed thereafter with a claim such as is mentioned in the other of the said paragraphs of that subsection.

(3) Regulations for the purposes of subsection (1) of section two of this Act shall secure that where any person proceeds with a claim such as is mentioned in paragraph (b) of subsection (1) of this section and that claim was made before the expiration of the time otherwise prescribed for the service of a damage notice in respect of the same damage, the time within which a damage notice must be served by that person in respect of that damage shall not commence to run until that claim is either determined or withdrawn before determination.

(4) In the case of any local authority or statutory undertakers, the provisions of this Act and of any other enactment making provision with respect to rights and liabilities between the [F22 Corporation]and the authority or undertakers in respect of the working of minerals under or adjacent to, or the leaving of minerals unworked for the support of, any property shall have effect subject to the terms of any agreement with respect to such rights and liabilities entered into between the [F22 Corporation]and the authority or undertakers and for the time being subsisting:

Provided that this subsection shall not apply to an agreement made in connection with a disposition of an interest in land or to such an agreement as is mentioned in paragraph (a) of subsection (2) of the next following section made solely with respect to payments relieving the [F22 Corporation]of liability for damage.

Textual Amendments

F22 Word substituted by Coal Industry Act 1987 (c. 3, SIF 86), s. 1(1)(2), Sch. 1 para. 5(b)

7 Powers of Corporation to recover expenditure in certain cases. E+W+S

(1) Where the [F23 Corporation]incur expenditure under section one or section twelve of this Act as a result of subsidence damage caused in connection with the working and getting of coal or of coal and other minerals in accordance with the terms of a licence granted by the [F23 Corporation]to some other person, the [F23 Corporation]shall be entitled to recover that expenditure as a civil debt from that other person.

(2) Subject to subsection (4) of this section, where the [F23 Corporation]incur expenditure under subsections (2) to (5) of section one of this Act in respect of subsidence damage to any property and—

(a) the [F23 Corporation]have made payments in respect of the working of coal or of coal and other minerals under an agreement made before the passing of this Act whereby, but for the provisions of this Act, the [F23 Corporation]would by reason of those payments have been relieved of liability for that subsidence damage; and

(b) the recipient of any of those payments was on the tenth day of January, nineteen hundred and fifty-seven, or has at any time thereafter before the occurrence of the subsidence damage become, the owner of that property or liable to make good in whole or in part such damage to that property,

the [F23 Corporation]shall be entitled, so far as may be necessary to recoup that expenditure, to exercise either or both of the rights specified in the next following subsection; and where the person to whom the [F23 Corporation]have made any payment under the agreement has paid over the whole or part of that payment to any other person by virtue of that other person’s being entitled to the beneficial interest therein, any reference in this or the next following subsection to the recipient of payments under the agreement shall be construed in relation to that payment or that part thereof as including a reference to that other person.

(3) The rights referred to in the last foregoing subsection are—

(a) to recover as a civil debt from any person who has received any payments made by the [F23 Corporation]under the agreement in question in respect of the property in question an amount not exceeding the aggregate of those payments less—

(i) any sums shown by that person to have been expended by him while he was entitled to those payments for the purposes of making good in whole or in part other damage to that property of a kind for which the [F23 Corporation]are relieved of liability by the agreement; and

(ii) any amount by which it is shown by that person that the aggregate of any other sums expended by him for the purposes aforesaid since the making of the agreement exceeds the aggregate of any other payments received by him under the agreement in respect of that property; and

(iii) any amounts shown by that person to have been borne by him by way of tax which he would not have borne but for periodical payments made by the [F23 Corporation]under the agreement;

(b) to retain for their own use any further payments falling to be made under the agreement in question in respect of the property in question, unless the person otherwise entitled to those payments shows that the aggregate of the sums expended by him for the purposes aforesaid since the making of the agreement exceeds the aggregate of any payments under the agreement in respect of that property received by him.

(4) So much, if any, of any payment under an agreement such as is mentioned in subsection (2) of this section as may fairly be regarded as paid otherwise than in satisfaction of any liablity of the [F23 Corporation]for damage shall be disregarded for the purposes of the two last foregoing subsections; and where the [F23 Corporation]are entitled to exercise the right specified in paragraph (a) of the last foregoing subsection against two or more persons by virtue of payments in respect of different periods, they shall not exercise that right against any of those persons until they have exhausted it so far as it is exercisable against any other of those persons by virtue of payments in respect of a more recent period.

(5) Where under subsection (1) of this section the [F23 Corporation]have recovered any expenditure incurred by them under section one of this Act from a licensee of the [F23 Corporation], then, so far as that expenditure was incurred under subsections (2) to (5) of the said section one, the three last foregoing subsections shall have effect as if that expenditure had been incurred by the licensee and as if for any reference in those three subsections to the [F23 Corporation]there were substituted a reference to the licensee:

Provided that the licensee shall not be entitled to recover the amount of any payment made by him before he became a licensee of the [F23 Corporation].

(6) In determining in any case to which subsection (1) or (2) of this section applies the expenditure incurred by the [F23 Corporation]under section one of this Act or, as the case may be, subsections (2) to (5) thereof, any amount by which that expenditure exceeds what was necessary or reasonable for the discharge by the [F23 Corporation]of their obligations under the said section one or, as the case may be, subsections (2) to (5) thereof shall be left out of account.

Textual Amendments

F23 Word substituted by Coal Industry Act 1987 (c. 3, SIF 86), s. 1(1)(2), Sch. 1 para. 5(b)

8 F24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W+S

Textual Amendments

F24 S. 8 repealed by Statute Law (Repeals) Act 1973 (c. 39), Sch. 1 Pt. X

9 Special provisions as to ancient monuments, etc. E+W+S

[F25 (1) This section shall apply in relation to any subsidence damage where the damaged property is—

(a) for the time being included in the Schedule of monuments compiled and maintained under section 1 of the M7 Ancient Monuments and Archaeological Areas Act 1979; or

(b) notified to the [F26 Corporation]by the Secretary of State as an ancient monument within the meaning of that Act for the time being under the care of the Secretary of State]

(c) a building notified to the [F26 Corporation]by the [F27 Secretary of State] as being in [F27 his] opinion of outstanding historic or architectural interest.

(2) If and so far as, having regard to the nature and extent of the subsidence damage, it is practicable and in the public interest so to restore the damaged property to a condition comparable to its condition at the date immediately before the subsidence damage occurred as to maintain the historic, architectural, archaeological or other special interest attaching thereto at that date, then, for the purposes of remedial works in connection with that property, that property shall not be deemed to be reasonably fit for the purposes mentioned in subsection (2) of section one of this Act unless it has been so restored.

(3) Any dispute arising under the last foregoing subsection as to whether or how far it is practicable or in the public interest to restore any property as mentioned in that subsection shall be determined by the [F27 Secretary of State.]

Textual Amendments

F25 S. 9 (1)(a)(b)substituted by Ancient Monuments and Archaeological Areas Act 1979 (c. 46), s. 65(2), Sch. 4 para. 4

F26 Word substituted by Coal Industry Act 1987 (c. 3, SIF 86), s. 1(1)(2), Sch. 1 para. 5(b)

F27 Words substituted by virtue of S.I. 1962/1549, art. 2(1), 1966/692, arts. 4, 5(1)(a), 1969/358, arts. 4(1)(b), 5(3) and 1970/1681, arts. 2(1), 6(3)

Marginal Citations

M7 1979 c. 46.

10 Special provisions as to certain tenants. E+W+S

(1) The provisions of this section shall have effect in any case where property is affected by subsidence damage and—

(a) a person who is a tenant for the purposes of Part I of the M8 Landlord and Tenant Act 1927 the [F28 Agricultural Holdings Act 1986]or the [F29 Agricultural Holdings (Scotland) Act 1991] a landholder for the purposes of the Small Landholders (Scotland) Acts 1886 to 1931 or a crofter for the purposes of the M9 Crofters (Scotland) Act 1955 would have been entitled under any enactment contained in those Acts to remove that property or to be paid compensation in respect thereof by his landlord if his tenancy had terminated immediately before the damage occurred; and

(b) apart from the provisions of this section, neither the person aforesaid nor any other person would be liable to make good the damage in whole or in part;

and in the following provisions of this section the expression “protected tenant” in relation to any property means the person who would have been entitled as aforesaid in respect of that property.

(2) Where the damaged property is property in respect of which the protected tenant would have been entitled to compensation as aforesaid, the protected tenant shall, subject to subsection (5) of this section, be treated for the purposes of this Act either—

(a) as a person liable to make good the whole of the damage to the property; or

(b) if by reason of any other enactment contained in the Acts aforesaid compensation in respect of the property would have been payable to him as aforesaid of less than the amount otherwise provided for by subsection (1) of section one of the said Act of 1927, [F30 section 66(1) of, or paragraph 2(1) of Part I of Schedule 9 to, the said Act of 1986], section thirty-eight or subsection (1) of section forty-nine of the said Act of 1949, so much of section ten of the M10 Crofters Holdings (Scotland) Act 1886 as precedes the proviso thereto, [F31 subsection (2) of section 6 of the M11 Crofters (Scotland) Act 1961], as the case may be, as a person liable to meet such part of the cost of making good the whole of the damage to the property as bears to the whole of that cost the same proportion that the compensation which would have been payable bears to the amount otherwise provided for as aforesaid:

Provided that, for the purposes of this section, there shall be deemed to be omitted from the said section ten the words from “and the value” onwards.

(3) Where any of the property consists of a building or structure which the protected tenant would have been entitled to remove as aforesaid, then, without prejudice to any liability of the [F32 Corporation]in respect of damage to that building or structure, paragraph (c) of subsection (1) of section one of this Act shall have effect in relation to the site thereof as if that building or structure had not been erected.

(4) Any question arising under this section in relation to any property as to whether or not any person is a protected tenant or as to the amount of any compensation which would have been payable to him as aforesaid under any of the Acts aforesaid shall be determined in like manner as if it had arisen under the Act in question.

(5) Where in the case of any damaged property it is claimed that a person who, apart from the provisions of this section, is neither the owner of, nor liable to make good in whole or in part the damage to, the property falls to be treated as so liable by virtue of this section, and a damage notice is served in respect of the property, whether by that or any other person, that person shall not be treated as liable as aforesaid unless—

(a) either it is agreed between that person and his landlord before the expiration of the period of one month from the first service of a damage notice in respect of the property, or it is determined in proceedings by virtue of the last foregoing subsection begun before the expiration of that period, that that person is a protected tenant in relation to that property; and

(b) notice in writing of that agreement or of the beginning of those proceedings has been given to the [F32 Corporation]before the expiration of the said period;

and where the liability of the [F32 Corporation]to comply with any requirement of this Act in consequence of the service of the damage notice depends on the determination of the question whether or not that person falls to be treated as liable as aforesaid, the [F32 Corporation]shall not be required to comply with that requirement until it is established in accordance with the provisions of this subsection whether or not that person falls to be so treated.

(6) For the purposes of the last foregoing subsection, proceedings to determine by arbitration whether or not a person is a protected tenant by virtue of the said [F33 Act of 1986] or the said Act of 1949 shall be deemed to be begun when either an arbitrator or, as the case may be, an arbiter has been appointed by agreement between that person and his landlord or an application for the appointment of an arbitrator or, as the case may be, an arbiter has been made to the [F34 President of the Royal Institution of Chartered Surveyors]or, as the case may be, to the Secretary of State by either that person or his landlord.

(7) Subsection (1) of section eight of the M12 Small Landholders (Scotland) Act 1911 other than the provisos thereto, and subsection (3) of section twenty-three of the said Act of 1955 (which provide that the agreement for a loan by the Secretary of State to a landholder or, as the case may be, crofter shall effect a transfer to the Secretary of State of all rights of the landholder or crofter to compensation for permanent improvements) shall have effect as if the references therein to such compensation included references to any amount payable to the landholder or crofter by virtue of this section.

Textual Amendments

F28 Words substituted by Agricultural Holdings Act 1986 (c. 5, SIF 2:3), ss. 99, 100, Sch. 13 para. 3, Sch. 14 para. 24(2)

F29 Words in s. 10(1)(a) substituted (25.9.1991) by Agricultural Holdings (Scotland) Act 1991 (c. 55, SIF 2:3), ss. 88(1), 89(2), Sch. 11 para. 11(with s. 45(3), Sch. 12 para. 3)

F30 Words substituted by Agricultural Holdings Act 1986 (c. 5, SIF 2:3), ss. 99, 100, Sch. 13 para. 3, Sch. 14 para. 24(3)

F31 Words substituted by virtue of Interpretation Act 1978 (c. 30), s. 17(2)(a)

F32 Word substituted by Coal Industry Act 1987 (c. 3, SIF 86), s. 1(1)(2), Sch. 1 para. 5(b)

F33 Words substituted by Agricultural Holdings Act 1986 (c. 5, SIF 2:3), ss. 99, 100, Sch. 13 para. 3, Sch. 14 para. 24(4)(a)

F34 Words substituted by Agricultural Holdings Act 1986 (c. 5, SIF 2:3), ss. 99, 100, Sch. 13 para. 3, Sch. 14 para. 24(4)(b)

Marginal Citations

M8 1927 c. 36.

M9 1955 c. 21.

M10 1886 c. 29.

M11 1961 c. 58.

M12 1911 c. 49.

11 Special provisions with respect to ecclesiastical property, settlements, etc. E+W+S

(1) Any payment under subsection (4) of section one of this Act in respect of ecclesiastical property which would, apart from the provisions of this subsection, fall to be made to the owner thereof shall be made to the Church Commissioners to be applied for the purposes for which the proceeds of a sale of the property by agreement would be applicable under any enactment or Measure authorising, or disposing of the proceeds of, such a sale.

(2) In the case of subsidence damage to any ecclesiastical property—

(a) in addition to any other person entitled to serve a damage notice in respect thereof, the Church Commissioners shall be so entitled;

(b) in addition to any other person upon whom the [F35 Corporation] serve a notice in respect of that damage under subsection (2) of section two or subsection (2) of section three of this Act, the [F35 Corporation]shall serve any such notice upon the Church Commissioners.

(3) Where any property such as is mentioned in paragraph (a) of subsection (1) of section four of this Act is ecclesiastical property, the Church Commissioners shall be included among the persons whose consent is required under that paragraph.

(4) Where a damage notice is served in respect of ecclesiastical property in respect of which the Church Commissioners, the Ecclesiastical Commissioners or Queen Anne’s Bounty have received payments under such an agreement as is mentioned in subsection (2) of section seven of this Act, the Church Commissioners shall be under the like liability, if any, by virtue of that subsection as if they had been the owner of the property at any time while it was ecclesiastical property and as if any of the payments aforesaid received by any of the authorities aforesaid had been received by them; and the Church Commissioners may apply any money or securities held by them in the payment of any sum recoverable from them under the said section seven by virtue of this subsection.

(5) The four foregoing subsections shall not extend to Scotland, Wales or Monmouthshire, and in those subsections the expression “ecclesiastical property” means property belonging to any ecclesiastical benefice, or being or forming part of a church subject to the jurisdiction of a bishop of any diocese or the site of such a church, or being or forming part of a burial ground subject to such jurisdiction.

(6) Where, in the case of any property to which subsection (1) of this section does not apply, the interest therein of the person to whom the whole or part of a payment under subsection (4) of section one of this Act would, apart from this subsection, fall to be paid is held by that person for religious purposes, then, if so requested by or on behalf of a body of persons notified to the [F35 Corporation]by the Minister, after consultation with such persons and organisations as he may think appropriate, as the appropriate representative body, that payment or that part thereof shall be paid to that representative body.

(7) The purposes authorised for the application of capital moneys—

(a) by section seventy-three of the M13 Settled Land Act 1925 and by that section as applied by section twenty-eight of the M14 Law of Property Act 1925 in relation to trusts for sale: and

(b) by section twenty-six of the M15 Universities and College Estates Act 1925

and the purposes authorised by section seventy-one of the Settled Land Act 1925, by that section as applied as aforesaid, and by section [F36 thirty] of the Universities and College Estates Act 1925 as purposes for which moneys may be raised by mortgage, shall include the payment of any sum recoverable under section seven of this Act.

Textual Amendments

F35 Word substituted by Coal Industry Act 1987 (c. 3, SIF 86), s. 1(1)(2), Sch. 1 para. 5(b)

F36 Word substituted by Universities and College Estates Act 1964 (c. 51), Sch. 3 Pt. II

Marginal Citations

M13 1925 c. 18.

M14 1925 c. 20.

M15 1925 c. 24.

12 Payments in respect of death or disablement in certain cases. E+W+S

(1) If as the result of an injury caused after the passing of this Act by the happening of subsidence damage any person dies or is seriously and permanently disabled, and apart from this section no action to recover damages is maintainable in respect of the death or disablement, then, subject to the next following subsection, the [F37 Corporation]shall be liable—

(a) in the case of a death, to pay the like damages, recoverable in the like manner and within the like time, as would have been payable if—

(i) the death had been attributable to the negligence of the [F37 Corporation]; and

(ii) the persons by or on behalf of whom an action could have been brought against the [F37 Corporation]for damages in respect of the death if it had been so attributable included any person who at the time of the death was, or but for the injury would have been, wholly or partly maintained by the deceased; and

(iii) where the death resulted from an injury caused in England or Wales, the damages were claimed under the Fatal Accidents Acts 1846 to 1908;

(b) in a case of disablement, to pay the like damages, recoverable in the like manner and within the like time, as if the disablement had been attributable to the negligence of the [F37 Corporation].

(2) No liability shall attach to the [F37 Corporation]under the foregoing subsection in respect of the death or disablement of any person as a result of an injury if—

(a) at the time when that person incurred the injury he was a trespasser; or

(b) the injury was incurred underground in a mine of coal within the meaning of the M16 Mines and Quarries Act 1954; or

(c) the injury was wholly attributable to the negligence of that person;

and if the injury was partly attributable to the negligence of that person the liability of the [F37 Corporation]under the foregoing subsection shall be reduced proportionately.

(3) For the purposes of this section a person shall be treated as seriously and permanently disabled if, and only if, he is suffering from loss of physical or mental faculty which is likely to be permanent and is such that the resulting disablement assessed, by reference to the disabilities incurred by that person as a result of that loss of faculty, in such manner as may be prescribed is not less than twenty per cent.; and any question arising under this section in any particular case shall be determined by a court having jurisdiction to hear and determine proceedings for the recovery of damages in that case.

Textual Amendments

F37 Word substituted by Coal Industry Act 1987 (c. 3, SIF 86), s. 1(1)(2), Sch. 1 para. 5(b)

Modifications etc. (not altering text)

C3 Reference to Fatal Accidents Acts 1846 to 1908 to be construed as including reference to Fatal Accidents Act 1976 (c. 30): ibid., Sch. 1 para. 2

Marginal Citations

M16 1954 c. 70.

13 Determination of disputes. E+W+S

(1) Save as otherwise provided by or under this Act, any question arising under this Act shall, in default of agreement, be referred—

[F38 (a) in England and Wales, in a case where the damaged property in relation to which the question arises constitutes or is comprised in a hereditament for rating purposes of a net annual value not exceeding one hundred pounds, or in any other case where all the parties so agree, to the county court;

(b) in any other case in England and Wales, to the Lands Tribunal;]

[F38 (a) in England and Wales, to the Lands Tribunal or, where all the parties so agree, to the county court;]

(c) in Scotland, to the sheriff.

(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 [F39 Corporation]to show that the damage is not subsidence damage.

(3) The tribunal, court or sheriff 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 [F39 Corporation]to carry out any obligations imposed upon them by this Act within such period as the tribunal, court or sheriff may direct;

(b) award damages in respect of any failure of the [F39 Corporation]to carry out any such obligations within a reasonable time.

(4) If proceedings are brought under this Act before a county court, the judge of the court may, if he thinks fit, summon an assessor or assessors under [F40 subsection (1) of section 91 of the M17 County Courts Act 1959], notwithstanding that no application is made in that behalf by any party to the proceedings.

(5) In proceedings brought under this Act in Scotland, the court may, if it thinks fit, summon to its assistance at the proof or at any subsequent hearing, whether on appeal or otherwise, a specially qualified assessor or assessors.

(6) Where the court summons an assessor or assessors in any proceedings by virtue of either of the two last foregoing subsections—

(a) the assessor or assessors may, if so directed by the court, inspect the property to which the proceedings relate on behalf of the court and report to the court in writing thereon; and

(b) the court may, on consideration of the report and any observations of the parties thereon, give such judgment or make such order in the proceedings as may be just.

(7) The remuneration of an assessor summoned as aforesaid shall be defrayed out of moneys provided by Parliament.

(8) Where in proceedings under this Act in Scotland the sheriff makes a remit by virtue of rule 60 in the First Schedule to the M18 Sheriff Courts (Scotland) Act 1907 the expense attending the execution of that remit shall, notwithstanding anything contained in that rule, be defrayed out of moneys provided by Parliament.

(9) If the occupier of any premises refuses to afford the [F39 Corporation]such facilities as they may require for the purposes of any provision of this Act (other than section five thereof) to enter upon, inspect and execute works on those premises, a magistrates’ court, on a complaint made by the [F39 Corporation], or, where the premises are situated 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 order the occupier to permit the exercise of those powers:

Provided that this subsection shall not apply to any premises occupied by or on behalf of the Crown.

Textual Amendments

F38 S. 13(1) subparagraph (a) substituted (E.W) for subparagraphs (a) and (b) by S.I. 1990/776, art. 8, Sch. 3 para. 5

F39 Word substituted by Coal Industry Act 1987 (c. 3, SIF 86), s. 1(1)(2), Sch. 1 para. 5(b)

F40 Words substituted by virtue of County Courts Act 1959 (c. 22), s. 205(7)

Marginal Citations

M17 1959 c. 22.

M18 1907 c. 51.

14 False information. E+W+S

If any person, for the purpose of obtaining for himself or any other person any benefit under this Act—

(a) furnishes any information which he knows to be false in a material particular, or recklessly furnishes any information which is false in a material particular; or

(b) with intent to deceive withholds any material information,

he shall be liable on summary conviction to a fine not exceeding [F41 level 3 on the standard scale], or to imprisonment for a term not exceeding three months, or to both.

Textual Amendments

F41 Words substituted by virtue of (E.W.) Criminal Justice Act 1982 (c. 48, SIF 39:1), ss. 38, 46 and (S.) Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), ss. 289F, 289G

15 Reimbursement of expenses. E+W+S

Without prejudice to any powers of the [F42 Corporation]apart from this section, the [F42 Corporation]may make such payments as may be prescribed by way of reimbursement of the expenses incurred by any person for the purpose of securing the carrying out by the [F42 Corporation]of their obligations under this Act.

Textual Amendments

F42 Word substituted by Coal Industry Act 1987 (c. 3, SIF 86), s. 1(1)(2), Sch. 1 para. 5(b)

16 Regulations. E+W+S

(1) Any power to make regulations conferred by any provision of this Act shall be exercisable by statutory instrument, and any such instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(2) Regulations prescribing anything required or authorised by this Act to be prescribed may make different provision for different circumstances.

17 Interpretation etc. E+W+S

(1) In this Act, unless the context otherwise requires, the following expressions have the following meanings respectively, that is to say—

• “agricultural land” means land used for agriculture within the meaning of the M19 Agriculture Act 1947 or, in the case of land in Scotland, the M20 Agriculture (Scotland) Act 1948 which is so used for the purpose of a trade or business;

• [F43 “the Corporation”means the British Coal Corporation;]

• “damage notice” has the meaning assigned by subsection (1) of section two of this Act;

• [F44 “dwelling-house” means—

  (a)

  a rating unit used wholly or mainly for the purposes of a private dwelling; or

  (b)

  any such separately occupied part of a rating unit as is used wholly or mainly for the purposes of a private dwelling; or

  (c)

  such part of a rating unit which is used partly, but not wholly or mainly, for the purposes of a private dwelling as is used for those purposes; or

  (d)

  any such part (whether separately occupied or not) of a rating unit in Scotland entered in the valuation roll as agricultural lands and heritages within the meaning of the M21 Rating and Valuation (Apportionment) Act 1928 as is occupied wholly or mainly as a private dwelling;]

• [F44 “dwelling house”means any building or part of a building used wholly or partly as a private dwelling, together with any yard, garden, outhouses and appurtenances belonging to or usually enjoyed with that building or part;]

• “emergency works” has the meaning assigned by subsection (5) of section one of this Act;

• “ground lease” means a lease for building purposes at a rent (or, where the rent varies, at a maximum rent) which does not substantially exceed the rent which a tenant might reasonably have been expected, at the date when the lease was granted, to pay for the land comprised in the lease, excluding any buildings, for a term equal to the term created by the lease;

• “the Minister” means [F45 the Secretary of State];

• “owner” in relation to any property—

  (a)

  if the property is held on a ground lease, means the lessee under that lease;

  (b)

  in the case of any other real property in England and Wales, means the owner of the fee simple;

  (c)

  in the case of any other heritable property in Scotland, means, if the property is feudal property, the proprietor of the dominium utile, or, if the property is not feudal property, the owner of the property;

• “prescribed” means prescribed by regulations made by the Minister under this Act;

• [F46 “rating unit” means—

  (a)

  in England and Wales, a hereditament which is separately valued for rating purposes,

  (b)

  in Scotland, lands and heritages within the meaning of the M22 Lands Valuation (Scotland) Act 1854 which are separately valued for rating purposes;]

• “remedial works” has the meaning assigned by subsection (2) of section one of this Act;

• “structure” includes any works providing passage or hard standing for persons, animals, or vehicles, including railway or tramway vehicles and aircraft;

• “subsidence damage” has the meaning assigned by subsection (1) of section one of this Act.

(2) For the purposes of this Act subsidence damage shall be deemed to occur—

(a) in the case of damage such as is specified in paragraph (c) of subsection (1) of section one of this Act or damage consisting in an alteration of the level or gradient of property not otherwise damaged, at the time when the damage first affected the fitness of the damaged property for use for the purposes mentioned in subsection (2) of that section;

(b) in any other case, at the time when evidence of the damage first appears.

(3) Save where the context otherwise requires, references in this Act to any enactment shall be construed as references to that enactment as amended by or under any other enactment, including any enactment contained in this Act.

(4) Any notice required by this Act to be given to any person by the Board may be served by post in a registered letter addressed to that person at his usual or last known place of abode or, if that person is a body corporate, at the registered or principal office of the body corporate.

Textual Amendments

F43 Definition substituted by Coal Industry Act 1987 (c. 3, SIF 86), s. 1(1)(2), Sch. 1 para. 5(c)

F44 Definition substituted (E.W.) by S.I. 1990/776, art. 8, Sch. 3 para. 6(a)

F45 Words substituted by virtue of S.I. 1969/1498, arts. 2(1), 5(6) and 1970/1537, arts. 2(2), 7(4)

F46 Definition repealed (E.W.) by S.I. 1990/776, art. 8, Sch. 3 para. 6(b)

Modifications etc. (not altering text)

C4 Reference to registered letter to be construed as including reference to letter sent by recorded delivery service: Recorded Delivery Service Act 1962 (c. 27), s. 1(1)(2), Sch. para. 1

Marginal Citations

M19 1947 c. 48.

M20 1948 c. 45.

M21 1928 c. 44.

M22 1854 c. 91.

18 Short title, repeals and extent. E+W+S

(1) This Act may be cited as the Coal-Mining (Subsidence) Act 1957.

(2) The provisions of this Act shall have effect notwithstanding anything in section fifty-nine of the M23 Tramways Act 1870; . . . F47

(3) This Act shall not extend to Northern Ireland.

Textual Amendments

F47 Words repealed by Statute Law (Repeals) Act 1973 (c. 39), Sch. 1 Pt. X

Marginal Citations

M23 1870 c. 78.

SCHEDULES

Sections 1, 4.

FIRST SCHEDULE E+W+S Provisions as to dwelling-houses rendered uninhabitable

1 Where a dwelling-house is affected by subsidence damage occurring after the passing of this Act, the provisions of this Schedule shall have effect as respects any period (in this Schedule referred to as “the period of dispossession”) during which both the following conditions are satisfied, that is to say—

(a) that by reason of deterioration due to the subsidence damage in the condition of the dwelling-house, and having regard to the time which will be required to remedy that deterioration, the dwelling-house is not in a reasonably fit state for it to be used as such; and

(b) that the dwelling-house is not used as such by or with the authority of the person who immediately before the occurrence of the subsidence damage was entitled to possession thereof (hereinafter in this Schedule referred to as “the occupier”).

2 (1) Subject to the provisions of this Schedule, in the case of any person ordinarily resident in the dwelling-house during the period immediately preceding the occurrence of the subsidence damage (hereinafter in this Schedule referred to as a “resident”) the [F48 Corporation]shall so long as the period of dispossession lasts be under an obligation at all times—

(a) to make available alternative living accommodation which—

(i) is of a standard comparable to the general standard of the housing accommodation under the management of [F49 the local housing authority within the meaning of the Housing Act 1985], or, as the case may be [F50 the local authority], for the purposes of [F51 [F52 Part VII][F52 Part I]of the M24 Housing (Scotland) Act [F52 1966][F52 1987]], for the area in which the dwelling-house is situated; and

(ii) is otherwise reasonable having regard to all the circumstances, including the probable duration of the period of dispossession; or

(b) as respects any of the first thirty days of the period of dispossession during which such alternative living accommodation as aforesaid is not made available, to pay to the resident in question the amount, if any, by which the aggregate expenditure reasonably incurred by him by way of rent, rates, food, living accommodation, heating, light and other household expenses exceeds what it would have been if the subsidence damage had not occurred and he had continued to reside in the dwelling-house; or

(c) as respects any other part of the period of dispossession during which such alternative living accommodation as aforesaid is not made available, to pay to the resident in question the amount aforesaid or the amount which would be payable by way of rent for accommodation equivalent to such alternative living accommodation as aforesaid whichever amount is the less:

Provided that the [F48 Corporation]shall not be under any obligation under this sub-paragraph in respect of any part of the period of dispossession during which, irrespective of the subsidence damage, the resident in question would not have been residing at the dwelling-house.

(2) Where the [F48 Corporation]are under an obligation towards a resident by virtue of the foregoing sub-paragraph, the [F48 Corporation]shall also be under an obligation with respect to the contents of the dwelling-house to provide, or to pay to that resident any expenditure reasonably incurred by him in providing, for any removal or storage thereof reasonably required during the period of dispossession as a result of the subsidence damage and any removal thereof reasonably required as a result of the termination of the [F48 Corporation]’s obligations towards that resident under the foregoing sub-paragraph:

Provided that the [F48 Corporation]shall not be under any obligation under this sub-paragraph in respect of the contents of any part of the dwelling-house which, immediately before the occurrence of the subsidence damage, was not used for the purposes of a private dwelling and the said obligations shall not extend to storage in or removal to any place outside Great Britain.

(3) Subject to the provisions of sub-paragraph (2) of paragraph 4 of this Schedule, and without prejudice to their liability under the two foregoing sub-paragraphs in respect of any part of the period of dispossession falling before the making of their election, the [F48 Corporation]may elect which of the courses open to them under the two foregoing sub-paragraphs they will for the time being adopt in any particular case.

Textual Amendments

F48 Word substituted by Coal Industry Act 1987 (c. 3, SIF 86), s. 1(1)(2), Sch. 1 para. 5(b)

F49 Words substituted by virtue of Housing (Consequential Provisions) Act 1985 (c. 71, SIF 61), s. 4, Sch. 2 para. 2(3)(a)

F50 Words inserted by Housing (Consequential Provisions) Act 1985 (c. 71, SIF 61), s. 4, Sch. 2 para. 2(3)(a)

F51 Words substituted by virtue of Housing (Scotland) Act 1966 (c. 49), s. 212(5)

F52 Sch. 1 (2)(1)(a) in para 2(1)(a) for the words “Part VII” and “1966” there are substituted (S.) the words “Part I” and “1987” respectively by Housing (Scotland) Act 1987 (c. 26, SIF 61), s. 339, Sch. 23 para. 7(3)

Marginal Citations

M24 1966 c. 49.

3 (1) Subject to the two following sub-paragraphs, the obligations of the [F53 Corporation]towards any resident under sub-paragraph (1) of the last foregoing paragraph shall cease, notwithstanding that the period of dispossession has not expired—

(a) if the occupier has ceased (otherwise than by reason of his death) to be entitled to possession of, or, as the case may be, of the site of, the dwelling-house; or

(b) on the expiration of a period of six months from the service by the [F53 Corporation]on the resident in question of notice in writing of the opinion of the [F53 Corporation]that the period of dispossession will continue indefinitely or that the said period will be unreasonably long or that the resident in question will not resume residence at or on the site of the dwelling-house at the expiration of that period.

(2) Where a damage notice has been served in respect of the dwelling-house, the [F53 Corporation]shall not be entitled to serve a notice under sub-paragraph (b) of the foregoing sub-paragraph on the grounds that the period of dispossession will continue indefinitely or will be unreasonably long—

(a) unless the [F53 Corporation]have elected to make a payment in respect of the dwelling-house under subsection (3) or subsection (4) of section one of this Act; or

(b) while a notice under subsection (2) of section three of this Act is in force with respect to the dwelling-house.

(3) Any person upon whom a notice under the said paragraph (b) is served may apply to the county court or, where the dwelling-house is situated in Scotland, to the sheriff, and the court or sheriff, if satisfied that there are not reasonable grounds for the opinion of the [F53 Corporation], may declare the notice to be of no effect.

Textual Amendments

F53 Word substituted by Coal Industry Act 1987 (c. 3, SIF 86), s. 1(1)(2), Sch. 1 para. 5(b)

4 (1) The [F54 Corporation]shall not be under any obligation by virtue of paragraph 2 of this Schedule unless either the owner or the occupier of the dwelling-house is a resident and has given to the notice in writing, in such a manner, within such time and containing such particulars as may be prescribed, that in his opinion the condition specified in sub-paragraph (a) of paragraph 1 of this Schedule is satisfied, and has afforded the [F54 Corporation]reasonable facilities to inspect the dwelling-house so far as he was in a position to afford such facilities.

(2) As soon as reasonably practicable after receiving from any person a notice under the foregoing sub-paragraph, the [F54 Corporation]shall give to that person notice in writing as to whether or not they agree with that person’s opinion and, if they so agree, as to the manner in which they propose to discharge their obligations under paragraph 2 of this Schedule, and where in the circumstances of any particular case it appears to the [F54 Corporation]appropriate so to do they may serve a separate notice such as aforesaid on any other resident; and where they have so given notice to any resident of an intention to adopt in his case the alternative set out in paragraph (a) or paragraph (c) of sub-paragraph (1) of the said paragraph 2, they shall not adopt in his case the other of those alternatives without his consent, which shall not be unreasonably withheld.

Textual Amendments

F54 Word substituted by Coal Industry Act 1987 (c. 3, SIF 86), s. 1(1)(2), Sch. 1 para. 5(b)

5 (1) Where, in pursuance of paragraph (a) of sub-paragraph (1) of paragraph 2 of this Schedule, the [F55 Corporation]have made alternative living accommodation available to a resident, the following provisions of this paragraph shall apply.

(2) The [F55 Corporation]shall be entitled to possession of the accommodation so made available—

(a) in a case falling within paragraph (b) of sub-paragraph (1) of paragraph 3 of this Schedule, at the expiration of the period of six months mentioned in the said paragraph (b);

(b) without prejudice to any obligations of the [F55 Corporation]under the said paragraph 2 or to the provisions of sub-paragraph (2) of the last foregoing paragraph, at any time not less than one week after the [F55 Corporation]have served notice in writing on the resident in question of their intention to take possession;

and where notice is given under paragraph (b) of this sub-paragraph, the said obligations shall continue until the expiration of the said week or such longer period as may be specified in the notice notwithstanding that the period of dispossession may have expired.

(3) The [F55 Corporation]shall be entitled to recover as a civil debt from the resident in question any amount by which the aggregate expenditure incurred by him by way of rent and rates is less than it would have been if the subsidence damage had not occurred and he had continued to reside in the dwelling-house, reduced by any amount by which that resident shows that the aggregate expenditure reasonably incurred by him by way of food, living accommodation (other than rent or rates), heating, light and other household expenses is greater than it would have been in the circumstances aforesaid:

Provided that the [F55 Corporation]shall not be entitled to recover any amount under this sub-paragraph in excess of the amount which would have been payable by way of rent for the alternative living accommodation if it had been provided by [F56 the local housing authority within the meaning of the Housing Act 1985 or the local authority]for the purposes of [F57 Part VII of the M25 Housing (Scotland) Act [F58 1966][F58 1987]], for the area in which the dwelling-house is situated.

Textual Amendments

F55 Word substituted by Coal Industry Act 1987 (c. 3, SIF 86), s. 1(1)(2), Sch. 1 para. 5(b)

F56 Words substituted by virtue of Housing (Consequential Provisions) Act 1985 (c. 71, SIF 61), s. 4, Sch. 2 para. 2(3)(b)

F57 Words substituted by virtue of Housing (Scotland) Act 1966 (c. 49), s. 212(5)

F58 Sch.1 para. 5(3) in the proviso, for the words “1966” there is substituted (S.) the words “1987” by Housing (Scotland) Act 1987 (c. 26, SIF 61), s. 339, Sch. 23 para. 7(4)

Marginal Citations

M25 1966 c. 49.

6 Where no damage notice has been served in respect of the dwelling-house or where the [F59 Corporation]have elected to make a payment under subsection (3) or subsection (4) of section one of this Act, then, during any period while the [F59 Corporation]are under an obligation by virtue of sub-paragraph (1) of paragraph 2 of this Schedule, they may exercise in the name of the occupier any right with respect to the repair of the dwelling-house exercisable by the occupier against any person other than the [F59 Corporation].

Textual Amendments

F59 Word substituted by Coal Industry Act 1987 (c. 3, SIF 86), s. 1(1)(2), Sch. 1 para. 5(b)

7 Where the [F60 Corporation]have elected to make a payment in respect of the dwelling-house under paragraph (b) of subsection (3) of section one of this Act, the [F60 Corporation]shall be entitled to recover as a civil debt from the owner of the dwelling-house any amount by which the expenditure of the [F60 Corporation]under this Schedule in connection with the dwelling-house exceeds what it would have been if only remedial works had been executed.

Textual Amendments

F60 Word substituted by Coal Industry Act 1987 (c. 3, SIF 86), s. 1(1)(2), Sch. 1 para. 5(b)

8 Where a person entitled to serve a notice under paragraph 4 of this Schedule also has a right apart from this Act to claim from the [F61 Corporation]or any other person compensation or damage in respect of any of the matters dealt with by this Schedule, he shall not be entitled to relief in respect of the same matters both under this Schedule and under that other right.

Textual Amendments

F61 Word substituted by Coal Industry Act 1987 (c. 3, SIF 86), s. 1(1)(2), Sch. 1 para. 5(b)

Sections 1, 8.

SECOND SCHEDULE E+W+S Determination of amount of depreciation and recipients of certain payments

1 For the purposes of determining under subsection (4) of section one of this Act the amount of the depreciation in the value of any property affected by subsidence damage which is caused by that damage, the unit of property to be taken into account shall be—

(a) where any property which has suffered subsidence damage constitutes or is comprised in [F62 a rating unit, that rating unit][F62 a dwelling house, that dwelling house]; and

[F63 (aa) where any other property which has suffered subsidence damage is a relevant non-domestic hereditament for the purposes of Part III of the Local Government Finance Act 1988, that hereditament; and]

(b) in any other case, such unit consisting of or comprising property which has suffered subsidence damage as may be determined by agreement between the [F64 Corporation]and all persons entitled to serve a damage notice in respect of that damage or, in default of such agreement, in the manner provided by section thirteen of this Act, to be equitable in all the circumstances of the case:

Provided that [F65 a rating unit and property not included in any rating unit][F65 two or more units of property] may, if it is determined as aforesaid to be equitable so to do, be treated for the purposes aforesaid as a single unit of property, and two or more [F65 rating] units within the same curtilage and belonging to the same owner, or a [F65 rating] unit part only of which has suffered subsidence damage, may in either case be treated for the purposes aforesaid either—

(i) as a single unit of property; or

(ii) as consisting of such separate units of property as may be determined as aforesaid to be equitable in all the circumstances of the case,

as may be so determined.

Textual Amendments

F62 Sch. 2 para. 1 in sub-paragraph (a), for “a rating unit, that rating unit” there is substituted (E.W.) “a dwelling house, that dwelling house” by S.I. 1990/776, art. 8, Sch. 3 para. 7(a)

F63 Sch. 2 para. 1 (aa) inserted (E.W.) by S.I. 1990/776, art. 8, Sch. 3 para. 7(b)

F64 Word substituted by Coal Industry Act 1987 (c. 3, SIF 86), s. 1(1)(2), Sch. 1 para. 5(b)

F65 Sch. 2 para. 1 in the proviso for “a rating unit and property not included in any rating unit” there is substituted (E.W.) “two or more units of property”, and “rating”; wherever that word subsequently occurs is repealed (E.W.) by S.I. 1990/776, art. 8, Sch. 3 para. 7(c)

2 (1) For the purposes aforesaid the amount of the depreciation in the value of a unit of property caused by any subsidence damage shall be taken to be the amount by which the value of the property in the state in which it was immediately after the occurrence of the damage is less than the value of the property in the state in which it was immediately before the occurrence of the damage, and the value of the property in either of the said states shall be taken to be the amount which it might have been expected to realise in that state on a sale effected immediately after the damage occurred, being in the case of property comprising land or buildings a sale of the fee simple in the open market and with vacant possession subject to—

(a) any restrictive covenant, easement, quasi-easement, or other right inuring for the benefit of other land;

(b) any public right of way, right of common, or other right inuring for the benefit of the public or of any section thereof; and

(c) any restriction imposed by or under any enactment,

to which the property was subject at the time immediately after the damage occurred, but free from any other incumbrance, and without regard to any liability of the property to become subject after the said time to any restriction by virtue of any enactment other than [F66 a closing order under section 266 of the Housing Act 1985] or under or by virtue of [F67 section 15, 17 or 18 of the M26 Housing (Scotland) Act 1966][F68 or under section 114 or 119 of the Housing (Scotland) Act 1987]:

Provided that—

(i)

except where [F69 a demolition or closing order under section 266 of the Housing Act 1985]or a compulsory purchase order was in force in respect of the property immediately before the date of the occurrence of the damage, if any payment or payments would have fallen to be made under [F70 Part I of Schedule 24 to the Housing Act 1985], in respect of any person’s interest in the property upon a compulsory purchase thereof in pursuance of a notice to treat served immediately before that date, the amount of the depreciation in the value of the property caused by the damage shall not be taken to be less than the amount, if any, by which the full compulsory purchase value [F70 as defined in paragraph 4(2)(a) of that part of that Schedule] of that interest, or of all such interests taken together, for the purposes of that compulsory purchase would have been reduced if the notice to treat had been served immediately after that date;

(ii)

in the case of a unit of property consisting of or comprising property of a kind not normally the subject of sales in the open market, provision may be made by regulations made by the Minister for ascertaining the value of the property in any state by reference to such matters as may be specified in the regulations.

(2) In determining for the purposes of the foregoing sub-paragraph the value of any property in the state in which it was immediately after the occurrence of the damage, any right to a payment under subsection (4) of section one of this Act in respect of that damage shall be disregarded.

Textual Amendments

F66 Words substituted by virtue of Housing (Consequential Provisions) Act 1985 (c. 71, SIF 61), s. 4, Sch. 3 para. 2(4)(a)

F67 Words substituted by virtue of Housing (Scotland) Act 1966 (c. 49), s. 212(5)

F68 Words inserted (S.) by virtue of Housing (Scotland) Act 1987 (c. 26, SIF 61), s. 239, Sch. 23 para. 7(5)

F69 Words substituted by virtue of Housing (Consequential Provisions) Act 1985 (c. 71, SIF 61), s. 4, Sch. 2 para. 2(4)(b)

F70 Words substituted by virtue of Housing (Consequential Provisions) Act 1985 (c. 71, SIF 61), s. 4, Sch. 2 para. 2(4)(c)

Marginal Citations

M26 1966 c. 49.

3 A payment under subsection (3) or subsection (5) of section one of this Act shall be made to the person by whom the cost of carrying out the works in question is incurred, or, if that cost is incurred partly by one person and partly by another, shall be apportioned between them in such manner as may be determined by agreement or, in default of agreement, in shares corresponding to their respective shares in the cost.

4 Subject to the provisions of this Act, a payment under subsection (4) of section one of this Act shall be made to the person who is for the time being the owner of the property in question:

Provided that

(a) if any other person is liable to make good the whole of the damage to which the payment relates, the payment shall be made to him;

(b) if any other person is liable to make good any part of that damage, such part of the amount of the payment shall be paid to him as bears to the whole of that amount the same proportion as the cost of meeting that liability bears to the cost of making good the whole of the damage.

5 Where the [F71 Corporation]are satisfied that the interest in the property in question of any person to whom, apart from the provisions of this paragraph or paragraph 7 of this Schedule, the whole or part of a payment under the said subsection (4) would fall to be paid was, at the time immediately after the damage occurred, subject to a mortgage, the payment or that part thereof shall be paid to the mortgagee, and the mortgagee shall be liable to account therefor as if it had been proceeds of sale of that interest arising under a power of sale exercised by the mortgagee at the said time, except that the mortgagee shall not be entitled to credit for any costs incurred by him in connection with the claiming, ascertainment, apportionment or making of the payment:

Provided that—

(a) if at the time when the payment is made the debt secured by the mortgage (other than any part thereof representing costs for which the mortgagee would not be entitled to credit) has been paid in full, the payment shall be disposed of as if the interest had not been subject to the mortgage;

(b) if the interest was subject to two or more successive mortgages, this paragraph shall have effect with the substitution for references to the mortgagee of references to the first mortgagee, or, if the preceding sub-paragraph has effect in relation to the first mortgage, to the second mortgagee, and so on; and

(c) in any case this paragraph shall have effect, as regards any mortgage, subject to any agreement between the mortgagee and the person who apart from that mortgage would have been entitled to receive the payment or part thereof.

Textual Amendments

F71 Word substituted by Coal Industry Act 1987 (c. 3, SIF 86), s. 1(1)(2), Sch. 1 para. 5(b)

6 (1) The Minister may by regulations make provision as to the person to whom any payment under the said subsection (4) or any part thereof is to be paid in cases where the interest in the property in question of a person to whom, apart from the provisions of this or the next following paragraph, the whole or part of the payment would fall to be paid was at the time immediately after the damage occurred subject to a rentcharge; and any such regulations may apply all or any of the provisions of section twenty-five of the M27 War Damage Act 1943 (which relates to the rights of owners of rentcharges as to payments for war damage), subject to such adaptations and modifications as may be specified in the regulations.

(2) In this paragraph the expression “rentcharge” means any annual sum charged on the property, not being rent incidental to a reversion.

Marginal Citations

M27 1943 c. 21.

7 Where the interest in the property in question of the person to whom, apart from the provisions of this paragraph, the whole or part of a payment under the said subsection (4) would fall to be paid is subject to a settlement or otherwise held in such manner that the person entitled to the interest would not be competent to give an effective discharge for the proceeds of a sale thereof, that payment or that part thereof shall be paid to the person so competent.

8 Where the interest in the property in question of the person to whom the whole or part of a payment under the said subsection (4) falls to be paid, or the proceeds of sale of that interest, are the subject of a devise or bequest, that devise or bequest shall be deemed to include that payment or that part thereof.

9 Where the interest in the property in question of the person to whom the whole or part of a payment under the said subsection (4) falls to be paid is the subject of a contract of sale or of a notice to treat served under an enactment authorising the compulsory acquisition thereof, being a contract made or notice served before the damage occurred, that payment or that part thereof shall, unless the contract is rescinded or the notice ceases to have effect, be held by that person upon trust for the purchaser:

Provided that any lien upon that interest to which that person is entitled by virtue of the contract shall extend to that payment or that part thereof.

10 In the application of this Schedule to Scotland—

(a) paragraph 7 shall not apply, but where the interest in the property in question of the person to whom the whole or part of a payment under subsection (4) of section one of this Act falls to be paid is subject to a trust within the meaning of the M28 Trusts (Scotland) Act 1921 or to an entail or to a life-rent, that person shall hold and apply that payment or that part thereof in like manner as if the interest had been acquired under compulsory powers and the payment or that part thereof were the purchase money or compensation for that interest:

(b) the following expressions have the following meanings respectively, that is to say—

• “fee simple” means, in the case of feudal property, the estate or interest of the proprietor of the dominium utile, or, in the case of property other than feudal property, the estate or interest of the owner;

• “incumbrance” means any ground annual or other incumbrance or any liability to pay feuduty;

• “easement” means servitude;

• “mortgage” means—

  (i)

  a heritable security within the meaning of the M29 Conveyancing (Scotland) Act 1924 exclusive of a security by way of ground annual and a real burden ad factum praestandum but inclusive of a security constituted by ex facie absolute disposition; or

  (ii)

  an assignation in security of a lease recorded under the M30 Registration of Leases (Scotland) Act 1857;

• and “mortgagee” shall be construed accordingly;

• “rentcharge” means a feuduty or a ground annual.

Marginal Citations

M28 1921. c. 58.

M29 1924 c. 27.

M30 1857 c. 26.