MINING SUBSIDENCE AND LEGAL REMEDIES IN BRITAIN (Fragment) Dr. G.T. Powell Keith Leighfield

Abstract:Subsidence as a consequence of mining activity has been an onerous problem associated with mineral extraction in Britain. However, compensation for damage as a consequence of mineral extraction has only been available in the UK for just over 100 years. This paper will outline the legal implications and the areas for which compensation is available as it applies to the UK. Particular reference is made to both the extraction of coal and salt in brine together with the protection of public utilities.

Keywords:Subsidence; compensation; coal; mining codes

1 Introduction

Mining subsidence is usually referred to as the vertical movement of a point on the earth’s surface to a lower elevation that can be accompanied by lateral movement of the surrounding surface. The vertical lowering, horizontal displacement and associated compressive and tensional strains may result in damage to surface and sub-surface structures. Subsidence is therefore a consequence of the withdrawal of support from superjacent strata and the surface following the creation of a mining void.

The law relating to compensation for surface damage as a result of mineral extraction and the removal of surface support, has developed over many years, and is regulated both by the state through mining statutes and, also through civil law proceedings between individuals. This paper will provide an outline of the areas for which remedies are available to both individuals and public bodies, it will consider the historical development of statute as a result of the industrial revolution and will indicate the responsible bodies that exist today. The paper will not focus on precedents that have been established, as these are too numerous to be considered at this time. It is hoped that such a paper will stimulate debate amongst colleagues involved in ground control and hence prove mutually beneficial.

As stated above, compensation for subsidence can be divided into two main areas, namely:

Common law:

Compensation based upon title deeds that has developed through the courts

Statute:

Compensation based upon statute passed by the British Parliament.

1.1 Common Law

British Land Law is based on the principle that the owner of the surface owns the underlying minerals (subject to important exceptions such as Crown Minerals and Coal). Allied to this, unless there is evidence to the contrary there is a presumed right of support attached to the land. The right can be defined as the right to keep the surface at its ancient and natural level. Unless the landowner has relinquished this right, as indicated by the title deeds, then the right will pass with the land to any subsequent landowner. Additionally, the right of support includes both subjacent and adjacent support and will extend laterally to all landowners whose ground is dependent upon that particular land for its natural support. Minerals can be sold separate from the surface (severed) or leased through negotiation between the parties to reach agreed terms. Such negotiations would have included rights to withdraw support from the surface (either implied or specific) and may have included provisions to make good the damage caused or pay compensation. In many cases the landowner granted full rights to withdraw support without the need to repair damage or pay compensation, this resulted in considerable hardship for homeowners living on the associated land and this led to the introduction of statutes to enable householders to secure a remedy for damage caused. In other instances the landowner made proper provision in the severance or lease for the repair of surface damage and the payment of compensation. Whatever rights related to the withdrawal of support and the repair of surface damage, compensation could only apply to the specified land and could not extend laterally to adjoining land. Over the past two centuries many claims have been brought to the British Courts by surface owners aggrieved by the damage caused by the underground extraction of minerals and the Court decisions have established precedents that have been applied to subsequent situations.

1.2 Statute

The provision of a legal remedy for subsidence as conferred by British statute. The primary legislation of relevance today is concerned with the extraction of coal, the extraction of salt in brine, the protection of public utilities through Mining Codes and the use of Working Facilities Orders.

2 Extraction of Coal

Where the ownership of the surface and the coal had previously been severed, the rights to withdraw support remained as set out in the terms of severance or mining lease (known as paragraph 5 coal). No additional rights were given to the surface owner where there was no liability to carry out repairs or pay compensation. The Coal Commission’s rights to withdraw support from the surface were inherited by the National Coal Board (later to become British Coal) when the coal industry was Nationalised by the Coal Industry Nationalisation Act 1946. These rights remained unchanged until the introduction of the Coal Industry Act 1975. The provisions of this Act were subsequently replaced by the Coal Mining Subsidence Act 1991 and the Coal Industry Act 1994.

The growing public concern about subsidence damage in coal mining areas led to the introduction of the Coal–Mining (Subsidence) Act 1950 which provided a statutory remedy for damage caused to the owners of small houses who had no right of support or other means to secure repair or compensation. Theses statutory provisions were then modified and extended by the introduction of the Coal-Mining (Subsidence) Act 1957. In 1981 the Commission on Energy and the Environment (CENE) published a report on Coal and the Environment. In this report the Commission identified that more should be done to predict coal-mining subsidence, repairs to properties should be carried out speedily and there should be payments for loss in property values after completion of repairs. In response the Government agreed to appoint the Waddilove Committee to address the concerns identified by the Commission. The final outcome was the passage of the Coal Mining Subsidence Act 1991 which replaced the 1957 Act and introduced new procedures relating to coal mining subsidence damage.

Conclusions

The law as it relates to mining subsidence has developed so that unless expressly exempted, it covers most property in the Britain. It has developed firstly through civil law remedies and latterly through Statute. Compensation for surface damage ensures that surface owners are not left out of pocket or experience undue hardship because of mining activity and enables both mining operators and those affected by their operations to coexist. . The Town and Country Planning legislation in Britain also considers mining activity as development requiring planning permission. Mining is also considered a material consideration when considering the granting of planning permission for surface development in mining areas. Hence, the needs of the public at large are properly considered. The National need is however balanced against the local need and planning officers must take this into consideration when assessing applications for mineral extraction.

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