Coal Mining Subsidence Act 1991

SCHEDULES

Section 14(4).

SCHEDULE 1 E+W+S Determination of Amount of Depreciation Payments

Commencement Information

I1 Sch. 1 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art. 2

Units of property E+W+S

1 (1) Subject to sub-paragraph (2) below, the unit of property to be taken into account for any purposes of section 10 or 11 of this Act (depreciation payments) shall be— E+W+S

(a) where any property affected constitutes or is comprised in a dwelling-house, that dwelling-house;

(b) where any property affected, other than property to which paragraph (a) above applies, is situated in England and Wales and is a relevant non-domestic hereditament for the purposes of Part III of the M1 Local Government Finance Act 1988, that hereditament;

(c) where any property affected, other than property to which paragraph (a) above applies, is situated in Scotland and is lands and heritages entered in the valuation roll, those lands and heritages; and

(d) in any other case, such unit consisting of or comprising any property affected as may be equitable in all the circumstances of the case.

(2) If it is equitable in all the circumstances of the case to do so, two or more units of property, or a unit of property part only of which is property affected, may in either case be treated for those purposes either—

(a) as a single unit of property; or

(b) as consisting of such separate units of property as may be equitable in those circumstances.

(3) In this paragraph any reference to property affected is a reference to property which has been affected by subsidence damage.

Commencement Information

I2 Sch. 1 para. 1 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art. 2

Marginal Citations

M1 1988 c. 41.

Basis of valuation E+W+S

2 (1) For any purposes of section 10 or 11 of this Act, the value of a unit of property at any time shall be taken to be the amount which it might be expected to realise in the state in which it is at that time on a sale effected at that time. E+W+S

(2) In the case of property comprising land or buildings the sale referred to in sub-paragraph (1) above is 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 any section of the public; and

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

to which the property is subject at the time of the sale, but free from any other incumbrance.

(3) In the case of property within sub-paragraph (2) above, the value shall be determined without regard to any liability of the property to become subject after the time of the sale to any restriction by virtue of any enactment other than—

(a) a demolition or closing order made under housing clearance powers; or

(b) where the property is situated in England and Wales, the declaration of an area to be a clearance area under such powers.

(4) 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 Secretary of State for ascertaining the value of the property in any state by reference to such matters as may be specified in the regulations.

(5) In determining for the purposes of the preceding provisions of this paragraph the value of any property which has been affected by subsidence damage, any right to a depreciation payment in respect of that damage shall be disregarded.

(6) In the application of this paragraph to Scotland—

• “fee simple” means[F1 , in the case of feudal property, the estate or interest of the proprietor of thedominium utile or, in the case of property other than feudal property, the estate or][F1 the] interest of the owner;

• [F2 "incumbrance” means any ground annual or other incumbrance or any liability to pay feuduty; and]

• “easement” means servitude.

Textual Amendments

F1 Word in Sch. 1 para. 2(6) substituted (S.) (28.11.2004) by Abolition of Feudal Tenure etc. (Scotland) Act 2000 (asp 5), ss. 71, 77(2), Sch. 12 para. 54(3)(a) (with ss. 58, 62, 75); S.S.I. 2003/456, art. 2

F2 Words in Sch. 1 para. 2(6) repealed (S.) (28.11.2004) by Abolition of Feudal Tenure etc. (Scotland) Act 2000 (asp 5), ss. 71, 77(2), Sch. 12 para. 54(3)(b), 13 Pt. 1 (with ss. 58, 62, 75); S.S.I. 2003/456, art. 2

Commencement Information

I3 Sch. 1 para. 2 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art.2

Amount of depreciation E+W+S

3 (1) For the purposes of section 10 or 11 of this Act 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 at the relevant time is less than what would have been its value at that time (determined in accordance with paragraph 2 above) if it had not been affected by the damage. E+W+S

(2) For the purposes of this paragraph the relevant time—

(a) in relation to the determination of the amount of a depreciation payment under section 10 of this Act (discretionary depreciation payments), is the time immediately after the date on which the Corporation gives to the claimant a notice of proposed remedial action with respect to the damage;

(b) in relation to the determination of the amount of a depreciation payment under subsection (1) of section 11 of this Act (obligatory depreciation payments), is whichever is the later of the time mentioned in paragraph (a) above and the time immediately after—

(i) the service of the notice to treat;

(ii) the making of the demolition or closing order; or

(iii) where the property is situated in England and Wales, the declaration of the area to be a clearance area,

by virtue of which the obligation to make the payment arises; and

(c) in relation to the determination of the amount of a depreciation payment under subsection (3) of section 11 of this Act (obligation to make a depreciation payment in respect of depreciation continuing after completion of remedial works), is the time immediately after the completion of the remedial works.

Commencement Information

I4 Sch. 1 para. 3 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art.2

Interest on depreciation payments E+W+S

4 (1) Subject to sub-paragraph (2) below, so much of the amount of any depreciation payment as for the time being remains unpaid by the Corporation shall carry interest at the applicable rate (if any) in respect of any period falling— E+W+S

(a) after the relevant time for the purposes of paragraph 3 above in relation to that payment; and

(b) before the whole amount and any accrued interest is paid.

(2) Any period of delay in determining the amount of any such payment which is attributable to unreasonable conduct on the part of the claimant or any other person interested shall be disregarded for the purposes of sub-paragraph (1) above.

Commencement Information

I5 Sch. 1 para. 4 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art. 2

Section 15(5).

SCHEDULE 2 E+W+S Recipients of Depreciation Payments: Special Cases

Commencement Information

I6 Sch. 2 para. 1 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art. 2

Mortgages E+W+S

1 (1) Subject to paragraph 2 below, where F3 . . . the interest in the property in question of any person to whom, apart from this paragraph or paragraph 4 below, the whole or part of a depreciation payment would fall to be made was subject to a mortgage at the time when the subsidence damage became evident (“the relevant time”), the payment or that part of the payment shall be paid to the mortgagee. E+W+S

(2) The mortgagee shall be liable to account for such a payment as if it had been proceeds of sale of the mortgaged interest arising under a power of sale exercised by the mortgagee at the relevant 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.

(3) In this paragraph and paragraph 2 below “mortgage”, in relation to property situated in Scotland, means a heritable security within the meaning of section 9 of the M2 Conveyancing and Feudal Reform (Scotland) Act 1970, and “mortgagee”, in relation to such property, means the creditor under the heritable security.

Textual Amendments

F3 Words in Sch. 2 para. 1(1) repealed (31.10.1994) by 1994 c. 21, ss. 43, 67(8), Sch. 6 para. 11, Sch. 11 Pt. II (with ss. 40(7), 66); S.I. 1994/2553, art. 2

Commencement Information

I7 Sch. 2 para. 1 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art. 2

Marginal Citations

M2 1970 c. 35.

2 (1) The following provisions of this paragraph apply in the circumstances mentioned in paragraph 1(1) above. E+W+S

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

(3) If the interest was subject to two or more successive mortgages, paragraph 1 above shall have effect with the substitution for references to the mortgagee of references to the first mortgagee or, if sub-paragraph (2) above has effect in relation to the first mortgage, to the second mortgagee, and so on.

(4) Paragraph 1 above shall have effect in any case, 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 depreciation payment or part of that payment.

Commencement Information

I8 Sch. 2 para. 2 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art. 2

Rentcharges E+W+S

3 (1) The Secretary of State may by regulations make provision as to the person to whom a depreciation payment or any part of it is to be paid in cases where the interest in the property in question of a person to whom, apart from this paragraph or paragraph 4 below, the whole or part of the payment would fall to be paid was at the relevant time subject to a rentcharge. E+W+S

(2) In this paragraph “rentcharge” means—

(a) in relation to property situated in England and Wales, any annual or other periodic sum charged on or issuing out of land, except rent reserved by a lease or tenancy and any sum payable by way of interest;

(b) [F4 in relation to property situated in Scotland, a feuduty or a ground annual.]

Textual Amendments

F4 Sch. 2 para. 3(2)(b) repealed (S.) (28.11.2004) by Abolition of Feudal Tenure etc. (Scotland) Act 2000 (asp 5), ss. 71, 77(2), Sch. 12 para. 54(4)(a), 13 Pt. 1 (with ss. 58, 62, 75); S.S.I. 2003/456, art. 2

Commencement Information

I9 Sch. 2 para. 3 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art. 2

Settlements etc. E+W+S

4 (1) Where in the case of property situated in England and Wales the interest in the property of the person to whom, apart from this sub-paragraph, the whole or part of a depreciation payment would fall to be paid is— E+W+S

(a) subject to a settlement; or

(b) 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 of the interest,

that payment or that part of that payment shall be paid to the person competent to give such a discharge.

(2) Where in the case of property situated in Scotland the interest in the property of the person to whom the whole or part of a depreciation payment falls to be paid is subject to—

(a) a trust within the meaning of the M3 Trusts (Scotland) Act 1921; or

(b) [F5 an entail or] a life-rent,

that person shall hold and apply that payment or that part of that payment in like manner as if the interest had been acquired under compulsory powers and the payment or that part of it were the purchase money or compensation for that interest.

Textual Amendments

F5 Words in Sch. 2 para. 4(2)(b) repealed (S.) (28.11.2004) by Abolition of Feudal Tenure etc. (Scotland) Act 2000 (asp 5), ss. 71, 77(2), Sch. 12 para. 54(4)(b), 13 Pt. 1 (with ss. 58, 62, 75); S.S.I. 2003/456, art. 2

Commencement Information

I10 Sch. 2 para. 4 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art.2

Marginal Citations

M3 1921 c. 58.

Effect of devises or bequests E+W+S

5 E+W+S Where the interest in the property in question of the person to whom the whole or part of a depreciation payment 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 treated as including that payment or that part of that payment.

Commencement Information

I11 Sch. 2 para. 5 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art. 2

Sale and compulsory acquisition E+W+S

6 (1) Where the interest in the property in question of the person to whom the whole or part of a depreciation payment falls to be paid is the subject of— E+W+S

(a) a contract of sale made before the relevant time; or

(b) a notice to treat served before that time under an enactment authorising the compulsory acquisition of the interest,

that payment or that part of that payment shall (subject to sub-paragraph (2) below) be held by that person in trust for the purchaser unless the contract is rescinded or the notice ceases to have effect.

(2) Any lien upon that interest to which that person is entitled by virtue of the contract shall extend to that payment or that part of that payment.

(3) In the application of sub-paragraph (1) above to Scotland, the reference to the service of a notice to treat includes a reference to the deemed service of such a notice.

Commencement Information

I12 Sch. 2 para. 6 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art.2

Section 21(1).

SCHEDULE 3 E+W+S Property Belonging to Protected Tenants

Commencement Information

I13 Sch. 3 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art.2

Protected tenant treated as liable to make good the damage E+W+S

1 (1) Subject to paragraph 2 below, the protected tenant shall be treated for the purposes of this Part of this Act— E+W+S

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

(b) in the circumstances mentioned in sub-paragraph (2) below, as a person liable to meet such part of the cost of making good the whole of that damage as is given by the formula mentioned in sub-paragraph (3) below.

(2) The circumstances referred to in sub-paragraph (1)(b) above are that, by reason of any other enactment contained in the relevant Act or Acts, compensation in respect of the damaged property would have been payable to the protected tenant of less than the amount provided for by whichever of the following enactments would otherwise have been applicable, namely—

(a) section 1(1) of the M4 Landlord and Tenant Act 1927;

(b) section 66(1) of and paragraph 2(1) of Part I of Schedule 9 to the M5 Agricultural Holdings Act 1986;

[F6 (bb) section 20 of the Agricultural Tenancies Act 1995;]

(c) sections 38 and 49(1) of the M6 Agricultural Holdings (Scotland) Act 1949;

(d) so much of section 10 of the M7 Crofters Holdings (Scotland) Act 1886 as precedes the proviso; and

(e) section 6(2) of the M8 Crofters (Scotland) Act 1961.

(3) The formula referred to in sub-paragraph (1)(b) above is—

where—

• P is such part of the cost of making good the whole of the damage to the property as the protected tenant is to be treated as a person liable to meet;

• C is the compensation which would have been payable to the protected tenant by reason of the other enactment contained in the relevant Act or Acts;

• A is the amount provided for by whichever of the enactments mentioned in sub-paragraph (2) above would otherwise have been applicable.

(4) Any question arising under this paragraph in relation to any property—

(a) as to whether or not any person is a protected tenant; or

(b) as to the amount of any compensation which would have been payable to him under the relevant Act or Acts,

shall be determined in like manner as if it had arisen under the relevant Act or Acts.

Textual Amendments

F6 Sch. 3 para. 1(2)(bb) inserted (1.9.1995) by 1995 c. 8, ss. 40, 41(2), Sch. para. 37 (with s. 37)

Commencement Information

I14 Sch. 3 para. 1 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art. 2

Marginal Citations

M4 1927 c. 36.

M5 1986 c. 5.

M6 1949 c. 75.

M7 1886 c. 29.

M8 1961 c. 58.

Circumstances in which Schedule applies E+W+S

2 (1) Where in the case of any damaged property— E+W+S

(a) it is claimed that a person who, apart from the provisions of this Schedule, 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 paragraph 1 above; and

(b) a damage notice is given in respect of the property, whether by that or any other person,

that person shall not be treated as so liable except in the circumstances mentioned in sub-paragraph (2) below.

(2) The circumstances referred to in sub-paragraph (1) above are—

(a) that it is agreed between the person in question and his landlord before the end of the period of one month beginning with the first giving of a damage notice in respect of the property, or it is determined in proceedings by virtue of paragraph 1(4) above begun before the end of that period, that he is a protected tenant and the property belongs to him; and

(b) that notice of that agreement or of the beginning of those proceedings has been given to the Corporation before the end of that period.

(3) Where the liability of the Corporation to comply with any requirement of this Part of this Act in consequence of the giving of a damage notice depends on the determination of the question whether or not a person falls to be treated as liable as mentioned in sub-paragraph (1) above, the Corporation shall not be required to comply with that requirement until it is established in accordance with the provisions of that sub-paragraph whether or not that person falls to be so treated.

(4) For the purposes of sub-paragraph (2) above, proceedings to determine by arbitration whether or not a person is a protected tenant by virtue of the M9 Agricultural Holdings Act 1986 or the M10 Agricultural Holdings (Scotland) Act 1949 shall be deemed to be begun when either—

(a) an arbitrator or, as the case may be, an arbiter has been appointed by agreement between that person and his landlord; or

(b) an application for the appointment of an arbitrator or, as the case may be, an arbiter has been made by that person or his landlord to the President of the Royal Institution of Chartered Surveyors or, as the case may be, the Secretary of State.

Commencement Information

I15 Sch. 3 para. 2 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art. 2

Marginal Citations

M9 1986 c. 5.

M10 1949 c. 75.

Supplemental E+W+S

3 E+W+S The following enactments, namely—

(a) section 8(1) of the M11 Small Landholders (Scotland) Act 1911 other than the provisos (which provides that an agreement for a loan by the Secretary of State to a landholder shall effect a transfer to the Secretary of State of all rights of the landholder to compensation for permanent improvements); and

(b) section 23(3) of the M12 Crofters (Scotland) Act 1955 (which makes corresponding provision in relation to an agreement for a loan by the Secretary of State to a crofter),

shall have effect as if the references to such compensation included references to any amount payable to a landholder or crofter by virtue of this Schedule.

Commencement Information

I16 Sch. 3 para. 3 wholly in force at 30.11.1991 see s. 54(2) and S.I. 1991/2508, art. 2

Marginal Citations

M11 1911 c. 49.

M12 1955 c. 21.

Section 22(1).

SCHEDULE 4 E+W+S Home Loss Payments

Commencement Information

I17 Sch. 4 wholly in force at 30.11.1991 see s. 54(2) and S.I. 1991/2508, art.2

Right to home loss payment E+W+S

1 (1) Subject to the provisions of this Schedule, any person who is displaced from the dwelling-house shall be entitled to receive a payment (a “home loss payment”) from the Corporation. E+W+S

(2) A person shall not be entitled to a home loss payment unless the following conditions have been satisfied throughout the period of one year ending with the date of displacement—

(a) he has been in occupation of the dwelling-house, or a substantial part of it, as his only or main residence; and

(b) he has been in such occupation by virtue of an interest or right to which this section applies,

but, if those conditions are satisfied on the date of displacement, a payment (a “discretionary payment”) may be made to him of an amount not exceeding the amount to which he would have been entitled if he had satisfied those conditions throughout that period.

(3) A person shall not be entitled to a home loss payment so long as any application made by him under paragraph 3(3) of Schedule 5 to this Act (challenge to the validity of a notice given by the Corporation under paragraph 3(1)(b) of that Schedule) has been neither determined nor withdrawn.

(4) This paragraph applies to the following interests and rights, namely—

(a) any interest in the dwelling-house;

(b) a right to occupy the dwelling-house as a statutory tenant within the meaning of the M13 Rent Act 1977 or under a restricted contract within the meaning of that Act or a contract which would be such a contract if the contract or dwelling-house were not excluded by section 19(4) or (5)(b) of that Act;

(c) a right to occupy the dwelling-house as a statutory tenant within the meaning of the M14 Rent (Scotland) Act 1984 or under a contract to which Part VII of that Act (contracts) applies or would apply if the contract or dwelling-house were not excluded by section 63(3)(a) or by an order under section 64 of that Act;

(d) a right to occupy the dwelling-house under a licence to which Part IV of the M15 Housing Act 1985 (secure tenancies) [F7 or Chapter 1 of Part V of the Housing Act 1996 (introductory tenancies)]applies;

(e) a right to occupy the dwelling-house under a contract of employment.

(5) Where an interest in a dwelling-house is vested in trustees (other than a sole tenant for life within the meaning of the M16 Settled Land Act 1925) and a person beneficially entitled (whether directly or derivatively) under the trust is entitled or permitted by reason of his interest to occupy the dwelling-house, he shall be treated for the purposes of this paragraph as occupying it by virtue of an interest in the dwelling-house.

(6) In the application of sub-paragraph (5) above to Scotland, the words “(other than a sole tenant for life within the meaning of the Settled Land Act 1925)” shall be omitted.

Textual Amendments

F7 Words in Sch. 4 para. 1(4)(d) inserted (12.2.1997) by S.I. 1997/74, art. 2, Sch.

Commencement Information

I18 Sch. 4 para. 1 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art. 2

Marginal Citations

M13 1977 c. 42.

M14 1984 c. 58.

M15 1985 c. 68.

M16 1925 c. 18.

Amount of home loss payment E+W+S

2 (1) In the case of a person who on the date of displacement is occupying, or is treated for the purposes of paragraph 1 above as occupying, the dwelling-house by virtue of an interest in it which is an owner’s interest, the amount of the home loss payment shall be the aggregate of— E+W+S

(a) 10 per cent. of the value of his interest in the dwelling-house or, as the case may be, the interest in the dwelling-house vested in trustees, subject to a maximum of £15,000 and a minimum of £1,500; and

(b) his reasonable expenses in removing from the dwelling-house.

(2) In the case of any other person, the amount of the home loss payment shall be the aggregate of £1,500 and his reasonable expenses in removing from the dwelling-house.

(3) The Secretary of State may from time to time by regulations prescribe a different maximum or minimum for the purposes of sub-paragraph (1)(a) above and a different amount for the purposes of sub-paragraph (2) above.

(4) In this paragraph any reference to the value of an interest in the dwelling-house shall be taken to be a reference to the value of that interest immediately before the deterioration in the condition of the dwelling-house; and paragraph 2 of Schedule 1 to this Act shall apply for the purpose of determining that value as it applies for the purpose of determining the value of a unit of property at any time for the purposes of section 10 or 11 of this Act.

(5) In this paragraph “owner’s interest” means—

(a) in relation to a dwelling-house situated in England and Wales, the interest of a person who is an owner as defined in section 7 of the M17 Acquisition of Land Act 1981; or

(b) in relation to a dwelling-house situated in Scotland, the interest of a person who is an owner as defined in section 45(1) of the M18 Land Compensation (Scotland) Act 1963.

Commencement Information

I19 Sch. 4 para. 2 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art. 2

Marginal Citations

M17 1981 c. 67.

M18 1963 c. 51.

Supplementary provisions E+W+S

3 (1) The Corporation shall not be liable to make a home loss payment except on a claim made by the person entitled to it (“the claimant”) giving such particulars as the Corporation may reasonably require for the purpose of determining whether the payment should be made and, if so, its amount. E+W+S

(2) Where a person is entitled to a home loss payment, the payment shall be made within the period of three months beginning with the date on which the claim is made.

(3) Where the claimant has satisfied, throughout any period, the conditions mentioned in sub-paragraph (2) of paragraph 1 above, that period shall be treated for the purposes of that sub-paragraph as including any immediately preceding period throughout which—

(a) he has resided in the dwelling-house as his only or main residence but without satisfying those conditions; and

(b) another person or other persons have satisfied those conditions,

and references in this sub-paragraph and sub-paragraph (4) below to a dwelling-house include a reference to a substantial part of it.

(4) Where the claimant has satisfied, throughout any period, the conditions mentioned in paragraph 1(2) above, that period (or that period as extended under sub-paragraph (3) above) shall be treated for the purposes of paragraph 1(2) above as including any immediately preceding period, or successive periods, throughout which he satisfied the conditions mentioned in paragraph 1(2) above in relation to another dwelling-house or, as the case may be, other dwelling-houses (applying sub-paragraph (3) above to determine the length of any period or periods).

(5) Where a person (“the deceased”) entitled to a home loss payment dies without having claimed it, a claim to the payment may be made, by any person (not being under the age of eighteen years) who, throughout a period of not less than one year ending with the date of displacement of the deceased, has resided in the dwelling-house, or a substantial part of it, as his only or main residence, and is entitled to benefit—

(a) in England and Wales, by virtue of testamentary dispositions taking effect on, or the law of intestate succession or the right of survivorship between joint tenants as applied to, the death of the deceased; or

(b) in Scotland, by virtue of a testamentary disposition or any other deed with testamentary effect taking effect on, or the law of intestate succession as applied to, the death of the deceased or a right tojus relicti,jus relictae orlegitim out of the deceased’s estate.

(6) Where the claimant has successively been in occupation of or resided in different dwelling-houses in the same building, being dwelling-houses consisting of a room or rooms not constructed or structurally adapted for use as a separate dwelling, paragraph 1(2) above and sub-paragraphs (3) to (5) above shall have effect as if those dwelling-houses were the same dwelling-house.

(7) Where there are two or more persons entitled to make a claim to a home loss payment in respect of the same dwelling-house (whether by virtue of joint occupation or of sub-paragraph (5) above) the payment to be made on each claim shall be equal to the whole amount of the home loss payment divided by the number of such persons.

Commencement Information

I20 Sch. 4 para 3 wholly in force at 30.11.1991 see s. 54(2) and S.I. 1991/2508, art.2

Section 23(1).

SCHEDULE 5 E+W+S Relief for Temporary Dispossession

Commencement Information

I21 Sch. 5 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art. 2

Preliminary E+W+S

1 E+W+S In this Schedule—

• “the local authority” means the local authority within the meaning of the M19 Housing Act 1985, or the local authority within the meaning of the M20 Housing (Scotland) Act 1987, in whose area the dwelling-house is situated;

• “the occupier” means the person who immediately before the deterioration in the condition of the dwelling-house was entitled to possession of it;

• “the period of dispossession” means the period during which the requirements of section 23(2) of this Act are satisfied;

• “rent” includes any mortgage interest, interest on a heritable security, service charges or water charges payable in respect of a dwelling-house and any community charges payable in respect of periods of residence in, or periods of having an interest in, a dwelling-house;

• “resident” means any person ordinarily resident in the dwelling-house during the period immediately preceding the deterioration in its condition.

Commencement Information

I22 Sch. 5 para. 1 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art. 2

Marginal Citations

M19 1985 c. 68.

M20 1987 c. 26.

Obligations of Corporation E+W+S

2 (1) Subject to the following provisions of this Schedule, in the case of any resident, the Corporation shall so long as the period of dispossession lasts be under an obligation at all times— E+W+S

(a) to make available alternative living accommodation which is of a standard comparable to the general standard of the housing accommodation under the management of the local authority and is otherwise reasonable having regard to all the circumstances, including the probable duration of the period of dispossession; or

(b) to pay to the resident the amount, if any, by which the aggregate expenditure reasonably incurred by him by way of rent, 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.

(2) The Corporation shall not be under any obligation under sub-paragraph (1) above 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.

(3) Subject to paragraph 4(2) and (3) below, and without prejudice to their liability under sub-paragraph (1) above in respect of any part of the period of dispossession falling before the making of their election, the Corporation may elect which of the two courses open to them under sub-paragraph (1) above they will for the time being adopt in any particular case.

(4) In the case of any resident towards whom the Corporation are under an obligation by virtue of sub-paragraph (1) above, they shall also be under an obligation to pay—

(a) his reasonable expenses in removing from the dwelling-house of which he is temporarily dispossessed; and

(b) any expenses reasonably incurred by him in consequence of the temporary dispossession.

Commencement Information

I23 Sch. 5 para. 2 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art. 2

Cessation of obligations E+W+S

3 (1) Subject to sub-paragraphs (2) and (3) below, the obligations of the Corporation towards any resident under paragraph 2(1) above shall cease, notwithstanding that the period of dispossession has not expired— E+W+S

(a) if the occupier has ceased (otherwise than by reason of his death) to be entitled to possession of the dwelling-house 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 Corporation on the resident in question of notice of the opinion of the Corporation—

(i) that the period of dispossession will continue indefinitely or will be unreasonably long; or

(ii) 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 given in respect of the dwelling-house, the Corporation shall not be entitled to give a notice under sub-paragraph (1)(b)(i) above—

(a) unless the Corporation have elected to make a payment under section 8 or 10 of this Act or are obliged to make a payment under section 11(1) of this Act; or

(b) while a notice under section 16(2) of this Act is in force with respect to the dwelling-house.

(3) Any person upon whom a notice under sub-paragraph (1)(b) above 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 Corporation, may declare the notice to be of no effect.

Commencement Information

I24 Sch. 5 para. 3 wholly in force at 30.11.1991 see s. 54(2) and S.I. 1991/2508, art. 2

Procedural requirements E+W+S

4 (1) The Corporation shall not be under any obligation by virtue of paragraph 2(1) above unless either the owner or the occupier of the dwelling-house is a resident and— E+W+S

(a) has given to the Corporation notice, within such time and containing such particulars as may be prescribed, that in his opinion the requirement specified in section 23(2)(a) of this Act is satisfied; and

(b) has afforded the 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 sub-paragraph (1) above, the Corporation shall give to that person notice—

(a) as to whether or not they agree with that person’s opinion; and

(b) if they so agree, as to the manner in which they propose to discharge their obligations under paragraph 2(1) above;

and where in the circumstances of any particular case it appears to the Corporation appropriate to do so, they may serve a separate such notice on any other resident.

(3) In giving such a notice, the Corporation shall not unreasonably refuse any request from a resident to adopt in his case such of the alternatives set out in paragraph 2(1) above as is specified in the request.

(4) Where the Corporation have given notice to any resident of an intention to adopt in his case either of those alternatives, they shall not adopt in his case the other of those alternatives without his consent, which shall not be unreasonably withheld.

Commencement Information

I25 Sch. 5 para. 4 wholly in force at 30.11.1991 see s. 54(2) and S.I. 1991/2508, art. 2

Alternative living accommodation E+W+S

5 (1) This paragraph applies where, in pursuance of paragraph 2(1)(a) above, the Corporation have made alternative living accommodation available to a resident. E+W+S

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

(a) in a case falling within paragraph 3(1)(b) above, at the expiration of the period of six months there mentioned; and

(b) without prejudice to any obligations of the Corporation under paragraph 2(1) above or to the provisions of paragraph 4(4) above, at any time not less than one month after the Corporation have given notice to the resident in question of their intention to take possession.

(3) Where notice is given under sub-paragraph (2)(b) above, the obligations of the Corporation under paragraph 2(1) above shall continue until the expiration of the month mentioned in that sub-paragraph, or such longer period as may be specified in the notice, notwithstanding that the period of dispossession may have expired.

(4) Subject to sub-paragraphs (6) and (7) below, the 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 is less than it would have been if the subsidence damage had not occurred and he had continued to reside in the dwelling-house.

(5) Subject to sub-paragraph (6) below, the Corporation shall be under an obligation to pay to the resident in question—

(a) any amount by which the aggregate expenditure incurred by him by way of rent is greater than it would have been if the subsidence damage had not occurred and he had continued to reside in the dwelling-house; and

(b) any amount by which he shows that the aggregate expenditure reasonably incurred by him by way of food, living accommodation (other than rent), heating, light and other household expenses is greater than it would have been in those circumstances.

(6) In any case where the Corporation—

(a) are entitled to recover an amount by virtue of sub-paragraph (4) above; and

(b) are under an obligation to pay an amount by virtue of sub-paragraph (5)(b) above,

the two amounts shall be set off one against the other and extinguished or reduced accordingly.

(7) The Corporation shall not be entitled to recover any amount under sub-paragraph (4) above 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 the local authority.

Commencement Information

I26 Sch. 5 para. 5 wholly in force at 30.11.1991 see s. 54(2) and S.I. 1991/2508, art. 2

Supplemental E+W+S

6 (1) This paragraph applies where— E+W+S

(a) no damage notice has been given in respect of the dwelling-house; or

(b) the Corporation have elected to make a payment under section 8 or 10 of this Act or are obliged to make a payment under section 11(1) of this Act.

(2) During any period while the Corporation are under an obligation by virtue of paragraph 2(1) above, 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 Corporation.

Commencement Information

I27 Sch. 5 para. 6 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art. 2

7 E+W+S Where the Corporation have elected to make a payment in respect of the dwelling-house under section 8(4) of this Act, the 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 Corporation under this Schedule in connection with the dwelling-house exceeds what it would have been if remedial works only had been executed.

Commencement Information

I28 Sch. 5 para.7 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art.2

Section 26.

SCHEDULE 6 E+W+S Farm Loss Payments

Commencement Information

I29 Sch. 6 wholly in force at 30.11.1991 see s. 54(2) and S.I. 1991/2508, art.2

Right to a farm loss payment E+W+S

1 (1) Subject to the provisions of this Schedule, if any person in occupation of the agricultural unit who has an owner’s interest— E+W+S

(a) is displaced from the whole, or a sufficient part, of the land affected by the subsidence damage (“the land affected”); and

(b) not more than three years after the date of displacement, begins to farm another agricultural unit (“the new unit”) elsewhere in Great Britain,

he shall be entitled to receive a payment (a “farm loss payment”) from the Corporation.

(2) In sub-paragraph (1) above “owner’s interest” means a freehold interest or a tenancy where his interest is as tenant for a year or from year to year or a greater interest and “sufficient part” means not less than 0.5 hectares or such area as the Secretary of State may by order specify.

(3) No farm loss payment shall be made to any person unless on the date on which he begins to farm the new unit he is in occupation of the whole of that unit in right of a freehold interest in it or a tenancy of it, not having been entitled to any such interest or tenancy before the date of displacement.

(4) No farm loss payment shall be made to any person who is entitled to a payment under section 28 of this Act in respect of land which consists of or includes the land from which he was displaced.

(5) In the application of this paragraph to Scotland, references to a freehold interest in land are references to—

(a) [F8 an interest as infelt proprietor of][F8 a right as proprietor with completed title to] the land;

(b) a right to the land without a completed title; or

(c) in the case of land subject to a heritable security constituted byex facie absolute disposition, an interest as the debtor in the security, except where the creditor is in possession of the land[F9 ,

but do not include references to an interest as a superior only. ]

Textual Amendments

F8 Words in Sch. 6 para. 1(5)(a) substituted (S.) (28.11.2004) by Abolition of Feudal Tenure etc. (Scotland) Act 2000 (asp 5), ss. 71, 77(2), Sch. 12 para. 54(5)(a) (with ss. 58, 62, 75); S.S.I. 2003/456, art. 2

F9 Words in Sch. 6 para. 1(5) repealed (28.11.2004) by Abolition of Feudal Tenure etc. (Scotland) Act 2000 (asp 5), ss. 71, 77(2), Sch. 12 para. 54(5)(b), 13 Pt. 1 (with ss. 58, 62, 75); S.S.I. 2003/456, art. 2

Commencement Information

I30 Sch. 6 para. 1 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art. 2

Amount of farm loss payment E+W+S

2 (1) Subject to the provisions of this paragraph, the amount of any farm loss payment shall be equal to the average annual profit derived from the use for agricultural purposes of the agricultural land comprised in the land affected; and that profit shall be computed by reference to the profits for the three years ending with the date of displacement or, if the person concerned has then been in occupation for a shorter period, that period. E+W+S

(2) Where accounts have been made up in respect of the profits of the person concerned for a period or consecutive periods of twelve months and that period or the last of them ends not more than one year before the date of displacement, sub-paragraph (1) above shall have effect as if the date on which that period or the last of those periods ends were the date of the displacement.

(3) In calculating the profits mentioned in sub-paragraph (1) above there shall be deducted a sum equal to the rent that might reasonably be expected to be payable in respect of the agricultural land comprised in the land affected if it were let for agricultural purposes to a tenant responsible for rates, repairs and other outgoings; and that deduction shall be made whether or not the land is in fact let and, if it is, shall be made to the exclusion of any deduction for the rent actually payable.

(4) Where the value of the agricultural land comprised in the land affected exceeds the value of the agricultural land comprised in the new unit, the amount of the farm loss payment shall be proportionately reduced.

(5) For the purposes of sub-paragraph (4) above the value of any land shall be determined—

(a) on the basis of its value as land used solely for agriculture;

(b) by reference to the condition of the land and its surroundings and to prices current—

(i) in the case of the land comprised in the land affected, on the date of displacement;

(ii) in the case of land comprised in the new unit, on the date on which the person concerned begins to farm the new unit; and

(c) without regard to the principal dwelling, if any, comprised in the same agricultural unit as that land.

(6) Paragraph 2 of Schedule 1 to this Act shall apply for the purpose of determining the value of any land for the purposes of sub-paragraph (4) above as it applies for the purpose of determining the value of a unit of property at any time for the purposes of section 10 or 11 of this Act.

Commencement Information

I31 Sch. 6 para. 2 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art.2

Supplementary provisions E+W+S

3 (1) The Corporation shall not be liable to make a farm loss payment except on a claim made by the person entitled to it before the end of the period of one year beginning with the date on which the requirement in paragraph 1(1)(b) above is complied with. E+W+S

(2) Any such claim shall be made in such form, and shall contain such particulars, as may be prescribed by regulations made by the Secretary of State.

(3) Where the agricultural unit containing the land affected is occupied for the purposes of a partnership firm, paragraphs 1 and 2 above shall have effect in relation to the firm and not the partners individually (any interest of a partner in the land acquired being treated as an interest of the firm) except that the requirements in paragraph 1 above as to the new unit shall be treated as complied with in relation to the firm as soon as they are complied with by any one of the persons who were members of the firm.

(4) Where a person dies before the expiration of the period for making a claim to a farm loss payment and would have been entitled to such a payment if he had made a claim within that period, a claim to that payment may be made, before the expiration of that period, by his personal representative.

(5) A farm loss payment shall carry interest at the applicable rate (if any) from the date mentioned in sub-paragraph (1) above until payment [F10 but any period of delay in determining the amount of any such payment which is attributable to unreasonable conduct on the part of that person shall be disregarded for the purposes of this sub-paragraph.].

Textual Amendments

F10 Words in Sch. 6 para. 3(5) inserted (31.10.1994) by 1994 c. 21, s. 67(1), Sch. 9 para. 41(4) (with ss. 40(7), 66); S.I. 1994/2553, art. 2

Commencement Information

I32 Sch. 6 para. 3 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art. 2

Section 53(1).

SCHEDULE 7 E+W+S Transitional Provisions and Savings

Commencement Information

I33 Sch. 7 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art. 2

Remedial action E+W+S

1 (1) Subject to sub-paragraphs (3) and (4) below, Part II of this Act (remedial action) shall not apply in any case where before the commencement date— E+W+S

(a) a notice has been given in respect of the subsidence damage under section 2 of the 1957 Act; or

(b) a claim has been made in respect of that damage under section 2(4) of the 1975 Act.

(2) Subject to sub-paragraphs (3) and (4) below, nothing in this Act shall affect—

(a) the operation of the 1957 Act in relation to any such case as is mentioned in paragraph (a) of sub-paragraph (1) above; or

(b) the operation of section 2(4) of or paragraphs 1 to 4 of Schedule 1 to the 1975 Act in relation to any such case as is mentioned in paragraph (b) of that sub-paragraph.

(3) Any notice given under section 2 of the 1957 Act, and any claim made under section 2(4) of the 1975 Act, may be withdrawn at any time before terms of settlement are finally agreed or determined; and where such a notice or claim is so withdrawn, this Act shall apply as if it had not been given or made.

(4) Where after the commencement date a stop notice under section 3(2) of the 1957 Act is revoked, this Act shall apply as if the notice given under section 2 of that Act were a damage notice given under section 3 of this Act.

(5) In this paragraph references to section 2(4) of and paragraphs 1 to 4 of Schedule 1 to the 1975 Act include respectively references to sub-paragraphs (1) and (3) of paragraph 6 of Schedule 2 to the 1938 Act.

Commencement Information

I34 Sch. 7 para. 1 wholly in force at 30.11.1991 see s. 54(2) and S.I. 1991/2508, art.2

2 (1) In any case where— E+W+S

(a) immediately before the commencement of the 1975 Act the National Coal Board had a right to withdraw support from any land by virtue of paragraph 5 of Schedule 2 to the 1938 Act; and

(b) after that commencement that land has been damaged by the working of coal in the exercise of the right to withdraw support conferred by section 2 of the 1975 Act [F11 or section 38 of the Coal Industry Act 1994],

any person interested in that land may, subject to sub-paragraph (2) below, claim compensation for the damage in accordance with the terms and conditions relating to compensation which were applicable before that commencement to the right to withdraw support referred to in paragraph (a) above.

(2) No person shall be entitled both to receive compensation for any damage under sub-paragraph (1) above and to receive compensation for that damage, or have that damage made good, under Part II of this Act.

Textual Amendments

F11 Words in Sch. 7 para. 2(1)(b) inserted (31.10.1994) by 1994 c. 21, s. 67(1), Sch. 9 para. 41(5) (with ss. 40(7), 66); S.I. 1994/2553, art. 2

Commencement Information

I35 Sch. 7 para. 2 wholly in force at 30.11.1991 see s. 54(2) and S.I. 1991/2508, art. 2

Additional remedies E+W+S

3 (1) In Part III of this Act— E+W+S

(a) Schedule 4 (home loss payments) and Schedule 6 (farm loss payments) shall not apply in any case where the displacement occurred before the commencement date;

(b) Schedule 5 (relief for temporary dispossession) shall not apply in any case where the period of dispossession began before that date;

(c) section 27 (crop loss payments) shall not apply as respects any calendar year or part of such a year falling before that date; and

(d) section 31 (compensation for damage to moveable property) and section 32 (compensation for death or disablement) shall not apply in any case where the damage or injury was caused before that date.

(2) Nothing in this Act shall affect—

(a) the operation of Schedule 1 to the 1957 Act (relief for temporary dispossession) in relation to any case where the period of dispossession began before the commencement date; or

(b) the operation of section 12 of that Act (compensation for death or disablement) in relation to any case where the injury was caused before that date.

Commencement Information

I36 Sch. 7 para. 3 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art.2

Preventive and other measures E+W+S

4 E+W+S For the purposes of section 33 of this Act (preventive works for existing buildings, structures or works)—

(a) any unreasonable withholding of consent to the execution of preventive works under section 4(1)(a) of the 1957 Act shall have effect as an unreasonable withholding of consent to the execution of such works under paragraph (a) of subsection (2);

(b) any undertaking given by the Corporation under section 4(1)(b) of that Act shall have effect as an undertaking given under paragraph (b) of that subsection; and

(c) any requirement imposed by the Corporation under section 4(1)(b) of that Act, or any unreasonable failure to comply with any such requirement, shall have effect as a request made by the Corporation under that paragraph, or an unreasonable failure to comply with such a request.

Commencement Information

I37 Sch. 7 para. 4 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art. 2

5 (1) For the purposes of section 34 of this Act (preventive works for new buildings, structures or works)— E+W+S

(a) any request made by the Corporation under paragraph 1(2) of Schedule 1 to the 1975 Act, or any failure to comply with any such request, shall have effect as a corresponding request made by the Corporation under paragraph (b) or (c) of subsection (2), or a failure to comply with such a request; and

(b) any proposals made by the Corporation under paragraph 1(3) of that Schedule, or any construction of the foundations of a building, structure or works otherwise than in accordance with any such proposals, shall have effect as proposals made by the Corporation under subsection (3), or the construction of the building, structure or works otherwise than in accordance with such proposals.

(2) In sub-paragraph (1) above references to sub-paragraphs (2) and (3) of paragraph 1 of Schedule 1 to the 1975 Act include respectively references to paragraphs (a) and (b) of paragraph 6(3) of Schedule 2 to the 1938 Act.

Commencement Information

I38 Sch.7 para. 5 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art.2

6 E+W+S For the purposes of section 36 of this Act (remedial or preventive measures for land drainage systems)—

(a) any agreement or determination made under section 5(1) of the 1957 Act with respect to any measures shall have effect as a reasonable requirement imposed under subsection (1) with respect to those measures; and

(b) any election made under section 5(2) of that Act with respect to any measures shall have effect as an election made under subsection (2) with respect to those measures.

Commencement Information

I39 Sch. 7 para. 6 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art. 2

Notices E+W+S

7 E+W+S Where any underground coal-mining operations proposed to be carried on after the commencement date can be regarded as a continuation of operations carried on before that date, nothing in section 46(1) (notices to property owners etc.) or section 47(1) of this Act (notices to local authorities) shall require the Corporation to give any notice with respect to those operations before the end of the period of one month beginning with that date.

Commencement Information

I40 Sch. 7 para. 7 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art. 2

Supplemental E+W+S

8 E+W+S In this Schedule—

• “the 1938 Act” means the M21 Coal Act 1938;

• “the 1957 Act” means the M22 Coal-Mining (Subsidence) Act 1957;

• “the 1975 Act” means the M23 Coal Industry Act 1975;

• “the commencement date” means—

(a) in relation to any provision of this Act, the date of the coming into force of that provision; and

(b) in relation to any provision repealed by this Act, the date of the coming into force of the repeal.

Commencement Information

I41 Sch. 7 para. 8 wholly in force at 30.11.1991 see s. 54(2) and S.I. 1991/2508, art. 2.

Marginal Citations

M21 1938 c. 52.

M22 1957 c. 59.

M23 1975 c. 56.

Section 53(2).

SCHEDULE 8 E+W+S Repeals

Commencement Information

I42 Sch. 8 wholly in force at 30. 11. 1991 see s. 54(2) and S.I. 1991/2508, art.2.

Chapter	Short title	Extent of repeal
5 & 6 Eliz. 2 c. 59.	The Coal-Mining (Sub-sidence) Act 1957.	The whole Act.
1964 c. 51.	The Universities and Colleges Estates Act 1964.	In Schedule 3, in Part II, the entry relating to the Coal-Mining (Subsidence) Act 1957.
1973 c. 65.	The Local Government (Scotland) Act 1973.	In Schedule 27, in Part II, paragraph 132.
1975 c. 56.	The Coal Industry Act 1975.	In section 2, subsections (4) and (7).In Schedule 1, paragraphs 1 to 4.
1976 c. 30.	The Fatal Accidents Act 1976.	In Schedule 1, in paragraph 2(2), the entry relating to section 12(1)(a)(iii) of the Coal-Mining (Sub-sidence) Act 1957.
1979 c. 46.	The Ancient Monuments and Archaeological Areas Act 1979.	In Schedule 4, paragraph 4.
1984 c. 54.	The Roads (Scotland) Act 1984.	In Schedule 9, paragraph 46.
1985 c. 71.	The Housing (Con-sequential Provisions) Act 1985.	In Schedule 2, paragraph 2.
1986 c. 5.	The Agricultural Holdings Act 1986.	In Schedule 14, paragraph 24.
1987 c. 3.	The Coal Industry Act 1987.	In Schedule 1, paragraph 5.
1987 c. 26.	The Housing (Scotland) Act 1987.	In Schedule 23, paragraph 7.
1989 c. 15.	The Water Act 1989.	In Schedule 25, paragraphs 1(2)(vii) and 23.