Buying property within mine subsidence districts

You are here

Discontinuance of Certificates

Subsidence Advisory NSW ceased issuing certificates under s15B and s15C of the Mine Subsidence Compensation Act 1961 (repealed) for properties in Mine Subsidence Districts on 30 September 2019.

The change follows a comprehensive review of the mine subsidence compensation system in 2016. The review found the process for assessing whether a property complied with Subsidence Advisory NSW’s development requirements and was eligible for compensation was inadequate.

Most properties in Mine Subsidence Districts will never be impacted by subsidence. Of approximately 140,000 properties in districts, only approximately 150 properties are damaged by subsidence each year.

Subsidence Advisory NSW’s records indicate the vast majority of developments in Mine Subsidence Districts are approved structures. In the last ten years, records show only four claims for homes have been refused due to the structure being non-compliant.

Due to the extremely low likelihood of a claim being made for a non-compliant property, the significant cost increase to adequately undertake compliance checks prior to issuing certificates was deemed unwarranted.

As a result, the certificates were not carried over to the new Coal Mine Subsidence Compensation Act 2017. Property owners have been afforded other protections under the Coal Mine Subsidence Compensation Act 2017.

Frequently Asked Questions
1. When did Subsidence Advisory NSW cease issuing the certificates?

Subsidence Advisory NSW ceased issuing certificates on 1 October 2019.

2. Does the change impact eligibility for compensation for subsidence damage?

No. All structures are eligible for compensation should they be impacted by mine subsidence, provided that if located in a Mine Subsidence District they have been constructed in accordance with the relevant approvals.

3. Why have certificates been discontinued?

Certificates have been discontinued following a comprehensive review of the mine subsidence compensation system in 2016. The review found the process for assessing whether a property complied with Subsidence Advisory NSW’s development requirements and was eligible for compensation was inadequate and the cost to adequately complete the checks would exceed the cost of paying compensation claims each year.

Subsidence Advisory NSW’s assessment process prior to issuing a certificate did not include an inspection of the property and therefore did not provide any real value to the community in confirming the structure had been built in accordance with the agency’s requirements to minimise subsidence risks.

The review found that the cost for Subsidence Advisory NSW to complete onsite inspections and adequately confirm the property’s compliance with its development requirements was likely to be prohibitive for most purchasers.

The cost increase to complete adequate certificate checks would significantly outweigh benefits due to the low likelihood of a claim being made for a non-compliant structure. Out of approximately 140,000 properties in mine subsidence districts, only approximately 150 properties are found to be impacted by subsidence each year. In the last ten years, records show only four claims for homes were refused due to non-compliant developments.

As a result, it was determined that certificates would not be continued under the new Coal Mine Subsidence Compensation Act 2017. Instead, the new Act contains provisions to help protect purchasers who unknowingly purchase a non-complying structure. There are also other avenues for prospective purchasers to confirm a property’s compliance or obtain additional insurance coverage should they wish.

4. What was the purpose of the Certificates?

Under the Coal Mine Subsidence Compensation Act 2017 and Mine Subsidence Compensation Act 1961 (repealed), structures in Mine Subsidence Districts must be constructed in accordance with Subsidence Advisory NSW’s development requirements to be eligible for compensation should mine subsidence damage occur.

Section 15B certificates confirmed that a property in a Mine Subsidence District had been constructed in accordance with Subsidence Advisory NSW’s development requirements and was eligible for compensation should the property be impacted by subsidence damage.

Section 15C certificates identified if a claim for mine subsidence damage to a property had previously been paid or was pending. If a compensation claim for the damage has already been paid, no further claims can be paid for the same damage irrespective of whether repairs were completed.

The review found that the checks being undertaken to confirm a property’s compliance prior to issuing a certificate were inadequate. For Subsidence Advisory NSW to undertake inspections of every property where a certificate is requested, the cost per certificate would increase from $50 to approximately $1000. This cost increase was not justified given the low volume of claims for subsidence damage compared to the number of requests for certificates received.

5. Will certificates previously issued under s15B of the Mine Subsidence Compensation Act 1961 remain valid?

Yes. If a s15B certificate has previously been issued for a property, any structures present on the property at the date the certificate was issued are eligible for compensation under the Coal Mine Subsidence Compensation Act 2017.

Improvements constructed since the issue of the last certificate must have been built in accordance with SA NSW’s requirements to be eligible for compensation.

6. What protections are in place for unwitting owners of a non-compliant property?

Discretional coverage for unwitting purchasers

Under the new Coal Mine Subsidence Compensation Act 2017, Subsidence Advisory NSW has discretion to determine to pay a claim for subsidence damage to a contravening development in circumstances where the failure to obtain the relevant approvals was not the fault of the property owner or where exceptional circumstances exist.

If a property owner can demonstrate they exercised due diligence (e.g. sought proof of approval from vendor or council at the time of purchase but either due to an error, omission or malfeasance) were not alerted that the structure was a contravening development, Subsidence Advisory NSW may determine to consider the claim.

Please refer to Subsidence Advisory NSW’s Policy to support determinations under Section 23(2) of the Coal Mine Subsidence Compensation Act 2017 for further detail.

Option to take out title insurance with coverage for unapproved structures in mine subsidence districts

Property owners may wish to explore the option to purchase title insurance, which may include coverage for structures built without Subsidence Advisory NSW’s approval in mine subsidence districts. Title insurance does not provide coverage for mine subsidence damage to a structure, however, some policies may provide cover for structures built without the relevant approvals in Mine Subsidence Districts.

Property owners should refer to the title insurers relevant policy statements for further information.

7. How can prospective purchasers find out if a property has the relevant development approvals?

Prospective purchasers who wish to confirm if a property has the relevant development approvals and is eligible for compensation for mine subsidence
damage may be able to do so by obtaining documentation from the Vendor or Council during the conveyancing process.

Development approvals under the Coal Mine Subsidence Compensation Act 2017 and former Mine Subsidence Compensation Act 1961 are closely aligned with development approval processes involving local councils under the Environmental Planning and Assessment Act 1979. Prior to granting development approval for properties in Mine Subsidence Districts, approval from Subsidence Advisory NSW is required.

8. How does this affect property sale transactions?

Under Section 23(a) the Coal Mine Subsidence Compensation Act 2017, buyers have the right to withdraw from a contract of sale for a structure that does not comply with Subsidence Advisory NSW’s development requirements.

It’s important to note that Subsidence Advisory NSW’s records indicate the non-compliance rate for properties within Mine Subsidence Districts is extremely low. There are approximately 140,000 properties in districts. In the last ten years, records show only four claims for homes have been refused due to non-compliant structures.

Those prospective purchasers who still wish to ascertain whether a structure is eligible for compensation can do so by obtaining confirmation of development approval through the Vendor or Council. Additionally, prospective purchasers may explore the option to purchase title insurance as an alternative to obtaining additional development approval reports.

Note: Title insurance does not provide coverage for mine subsidence damage to a structure, however, some policies may provide cover for structures built without the relevant approvals in Mine Subsidence Districts. Property owners should refer to the title insurer’s relevant policy statements for further information.

9. How can prospective purchasers find out if there have been any previous or pending claims for subsidence damage on a property?

Prospective purchasers may be able to find out if there have been any previous or pending claims for subsidence damage at a property through the Requisitions on Title process or through information disclosed by the vendor under a claim settlement deed.

Requisitions on Title process

During property sale negotiations, the buyer’s conveyancer may ask the vendor questions to confirm there are no current claims on the property under the Coal Mine Subsidence Compensation Act 2017 through the Requisitions on Title process. The buyer’s conveyancers may also ask the vendor to provide documentation confirming development approval at this point.

Information disclosed by the vendor as required under a deed

Subsidence Advisory NSW recently introduced a monetary compensation model with claims settled through cash payments based on assessments of the cost to rectify the damage.

To settle claims, property owners are generally required to sign a deed of release or Deed Poll. The deed requires property owners who elect to sell a property without rectifying the damage to disclose to purchasers that the damage has been the subject of a claim and has not been rectified. This includes a requirement to have the purchaser sign a Deed Poll acknowledging that no further claims for the damage can be made.

10. Does the discontinuance of certificates change conveyancing processes?

Yes. From 1 October 2019, conveyancers are no longer able to request Section 15 certificates from Subsidence Advisory NSW as part of the conveyancing process for a property in a Mine Subsidence District.

Persons looking to purchase a property in a Mine Subsidence District can work with their conveyancer to determine their preferred approach in the absence of certificate. This may include:

-Proceed with the purchase without documentation confirming development approval

-Obtaining documentation confirming development approval from the vendor

-Obtaining a survey report and documentation confirming development approval from Council

-Purchase title insurance that includes coverage for structures built without Subsidence Advisory NSW’s approval in mine subsidence districts.

Note: Title insurance does not provide coverage for mine subsidence damage to a structure, however, some policies may provide cover for structures built without the relevant approvals in Mine Subsidence Districts.

11. My financial institution is requesting a certificate as a requirement for refinancing. What should I do?

Subsidence Advisory NSW previously communicated with financial institutions to ensure they were aware Section 15 certificates would not be issued from 30 September 2019.

If a financial institution is requesting a certificate, please contact Subsidence Advisory NSW on (02) 4908 4300 for advice.

12. How do I find out if a property is in a Mine Subsidence District?

You can find out if a property is in a Mine Subsidence District online through the ePlanning Spatial Viewer at www.planningportal.nsw.gov.au/spatialviewer/#/find-a-property/address.

13. I have previously had a Section 15B certificate issued for my property. Does this mean my property may not be eligible for compensation?

No. Subsidence Advisory NSW will continue to honour previously issued certificates. If you have previously had a Section 15B certificate issued for your property, all structures on your property at the date the certificate was issued are eligible for compensation should subsidence damage occur. Improvements constructed since the issue of the last certificate must have been built in accordance with SA NSW’s requirements to be eligible for compensation.

It’s important to note that just because a certificate has not previously been issued for a property does not mean it is not eligible for compensation. Compliance with Subsidence Advisory NSW’s development requirements, not a certificate of compliance, is a prerequisite for compensation for subsidence damage. There are many reasons why a certificate may not have been issued for a property in a district, including but not limited to:

-the previous owner did not request a certificate at the time of purchase
-the property has not been sold recently
-the property has only recently been declared within a mine subsidence district
-the property is the result of a subdivision and certificates were issued under prior property details.

Register of previously issued s15B certificates

To assist in the transition as certificates are discontinued, Subsidence Advisory NSW has provided a new online register of certificates issued under the Mine Subsidence Compensation Act 1961 (repealed). The register allows users to search for a property to ascertain whether a Section 15B certificate has previously been issued and if so the date of issue.

All structures on the property at the date of issue of the last certificate are eligible for compensation should subsidence damage occur. Improvements constructed since the issue of the last certificate must have been built in accordance with Subsidence Advisory NSW’s requirements to be eligible for compensation.

In some cases, a certificate may have been issued recently for a property or no improvements have recently been constructed or altered and the prospective purchaser may be satisfied to proceed with the purchase based on this information given the age of structures on the property.

Search Results

Certificates issued under s15B of the Mine Subsidence Compensation Act 1961 (repealed).