Newbold v Coal Authority (2012)
On giving a damage notice under the Coal Mining Subsidence Act 1991 s.3, the purpose of the requirement to give particulars in accordance with the Coal Mining Subsidence (Notices and Claims) Regulations 1991 Sch.1 was both to show that the notice was served by the owner or some other person liable to make good the damage, and to give the Coal Authority information to assist it in deciding whether it had a remedial duty in relation to the damage specified. There was potential for at least some of those particulars to be satisfied in the event of no more than substantial compliance.
The court considered as a preliminary issue the validity of damage notices given by the claimants under the Coal Mining Subsidence Act 1991 s.3 to the respondent authority.
The claimants, three brothers, sought compensation under the Act for the cost of remedial works to a property of which they jointly owned the freehold. The first claimant (N) served the damage notices, which were completed by professional agents. The claimant's name was given as N. The agents' details were completed and the forms stated that the claimant was the owner of the freehold. A note attached to each notice explained changes in the vesting of the freehold interest, which had previously been held by a nominee and by a company owned by the claimants. The authority rejected the notices as invalid on the grounds that they had been given by N alone rather than by all three brothers as owners of the property, and that they failed to contain the particulars required by theCoal Mining Subsidence (Notices and Claims) Regulations 1991 Sch.1, including the names of the claimants.
The claimants contended that (1) the notices were validly given by N as an implied agent for himself and his brothers, with N as undisclosed principal; alternatively, (2) they were not rendered invalid by any irregularities, either because there had been substantial compliance with the particulars or because the non-compliance had been waived without prejudice to the authority; (3) the authority was estopped from challenging the validity of the notices because there had been a common assumption of validity from the date of service of each notice.
(1)(a) Despite the notices specifying a single claimant, it was clear from the information submitted with them that they were being given on behalf of plural owners. There was nothing to suggest that the authority had understood the situation to be otherwise. Therefore, the notices had been validly given on behalf of the owners by their agents, who had authority to do so (see paras 31-32, 40 of judgment); (b) in view of the provisions ofs.3(1) and s.3(6) of the Act, and having regard to s.3(2) in conjunction with the first particular in Sch.1 of the Regulations, there was no scope under the statutory provisions for a damage notice to be given by an agent on behalf of an undisclosed principal. In any event, N had done nothing that was the act of an agent in relation to the giving of the notices, and none of the facts of the case amounted to evidence establishing an agency relationship between the brothers (paras 84, 100, 104). (2) The purpose of the statutory requirement to give particulars was both to show that the notice was served by the owner or some other person liable to make good the damage, and to give the authority information to assist it in deciding whether it had a remedial duty in relation to the damage specified. There was potential for at least some of those particulars to be satisfied in the event of no more than substantial compliance, R. v Secretary of State for the Home Department Ex p. Jeyeanthan  1 W.L.R. 354 applied. However, failure to provide a required piece of information did not necessarily invalidate the notice. In assessing whether that was the case, regard had to be paid to the way in which the authority had dealt with the claim. The authority was deemed to have waived the failure to comply with the particular relating to the names of the claimants and given its acceptance that it was not prejudiced by the entry of only N's name. All the other particulars required by the Regulations had been complied with to an extent which was sufficient not to invalidate the notices (paras 54, 57, 60, 78). (3) The effect of estoppel as argued by the claimants would be to make N the claimant for the purposes of the Act. However, as the claimants were the three brothers and not N alone, estoppel could not operate so as to confer on N, a person lacking the interest required by the Act, a statutory right that he did not have; nor could the tribunal be required to give effect to the Act as though he did have such a right, Secretary of State for Employment v Globe Elastic Thread Co Ltd  A.C. 506 applied. It followed that the notices were valid within the meaning of s.3 of the Act (paras 108, 111).
Preliminary issue determined
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16 Feb 2012
Upper Tribunal (Lands Chamber)
George Bartlett QC (President LTr)
LTL 13/3/2012 :  UKUT 20 (LC)