Lands Tribunal for Scotland

OPINION

East Dunbartonshire Council
v
Mrs C Smith

East Dunbartonshire Council (formerly Strathkelvin District Council) applied under section 1 of the Conveyancing and Feudal Reform (Scotland) Act 1970 for the discharge of a land obligation said to affect land owned by them at Gallowhill Avenue, Lenzie.

The obligation (hereinafter referred to as "the declaration") appears in a Feu Contract entered into between John Morson Shearer and Archibald Nairn dated 8th and 13th April 1871 and recorded GRS (Dumbarton) on 8th July 1871 and in a Feu Contract and Charter of Novodamus entered into between said John Morson Shearer and William James Cree dated 17th, 23rd, 29th and 30th December 1874 and recorded GRS (Dumbarton) on 8th January 1875.

The declaration is in the reddendo clause in each deed. In each it appears in similar terms. It provides for payment of feu duty, for a penalty in respect of failure in punctual payment, and for duplication at the expiry of every nineteenth year. As it is stated in the 1871 deed it then provides: "Declaring always that the second party and his foresaids shall be at liberty to sell and dispose of any part or parts of the said plot or area of ground and to allocate thereon a proportion of the said feu duty … Declaring however that notwithstanding this power the second party and his foresaids shall not be entitled to divide the said plot or area of ground (or the said feu duty) into more than six parts". The phrase which we have put in brackets does not appear in the Charter of Novodamus.

The area of ground being the subjects of the present application formed part of the total area conveyed in terms of these said titles. Real burdens had been created by the titles which, inter alia, restricted the building of houses on the original area to six in number and also made provision for the date by which building works were to be concluded.

By application reference LTS/LO/1994/8, the present applicant's predecessors in title, Strathkelvin District Council, applied for discharge of the said real burden. As is more fully narrated in the tribunal's opinion in those proceedings, only one house, "Ingleside", was erected on the initial subjects within the time limit imposed. The subjects were acquired in 1969 by Kirkintilloch Town Council. The council divided Ingleside into five separate single person flats. In 1972 they feued off ground in five separate parts, each for the construction of one dwellinghouse. These dwellinghouses were duly built and, with Ingleside, made up the full complement of six houses initially permitted by the burden. The applicant's predecessors wished to use a further part of the initial ground for development by way of construction of further dwellinghouses. After a hearing on the merits of the application for variation and a separate hearing to assess compensation, the land obligation created by said real burden was varied to permit construction of certain dwellinghouses, all as set out in the relevant planning permission.

In those proceedings it was not disputed that the said burden was a land obligation within the meaning of the said Act. It was not disputed that the present objector, Mrs Smith, was a benefited proprietor in respect of that obligation as, indeed, were the proprietors of the other houses referred to above.

The decision of the tribunal was the subject of an appeal to the Court of Session by Mrs Smith. The appeal was refused by interlocutor of 11th February 1997. The Opinion of the Court of that date is referred to for its terms.

In 1974 the said Town Council acquired the superiority of the whole ground feued in terms of the said deeds of 1871 and 1874 respectively. At that stage they were proprietors of the dominium utile of the subjects except as previously disposed of by them. In particular, they were proprietors of the land in respect of which the present application is made. In 1992 the applicant's predecessors, as statutory successors of the said Town Council, consolidated the superiority with the dominium utile. It was accepted in the previous application and in the proceedings before us that the consolidation could not affect any prior jus quaesitum tertio. In other words the status of the objectors to the previous application as benefited proprietors was in no way affected by it. Similar, if any party could be shown to have a jus quaesitum tertio in relation to any other obligation, this would not be extinguished by the consolidation.

In the course of representations made on behalf of the parties certain formal pleas-in-law were stated. For the applicants these pleas were as follows:

  1. The objector being neither a benefited proprietor nor an affected proprietor the objection is incompetent and should be repelled.
  2. The objections being irrelevant to the issue before the tribunal, they should be repelled.
  3. There being no competent or relevant objection to the application now before the tribunal the application should be granted.

The objector's pleas were in the following terms:

  1. The applicants on their own submissions not being burdened proprietors, the application should be dismissed as incompetent.
  2. The application being res judicata the application should be dismissed as incompetent.

These pleas were debated at a hearing on 10 June 1997. The applicants were represented by Mr D I K MacLeod, solicitor, Messrs Shepherd & Wedderburn, and the objector was represented by Mr M J R Smith, solicitor (her husband), of Messrs Grant & Co.

Mr Smith helpfully presented his submission in written form and this allowed Mr MacLeod to open the oral submissions addressing his own pleas and also responding to the argument on behalf of the objector.

Mr Smith's submission was set out in the form of an analysis of the various decisions or disposals open to the tribunal at various stages depending upon the approach taken to the arguments before it. We cannot be sure that we have accurately identified all the substantive submissions in law, express or implicit, which were used to support that analysis, but in so far as they appear to us to bear on the pleas now before us, we set them out as follows:

Central to his submission as to disposal and an element in his plea to competency was the proposition that the tribunal has no declaratory jurisdiction. An application which had as its main purpose a decision that an obligation was unenforceable could not be made. It would have to be dismissed as incompetent. Any decision which had the effect of a declarator would not be "appropriate". His analysis of potential disposals founded strongly on this proposition. If the applicants were saying that there were no benefited proprietors, then there was no enforceable obligation and the application was incompetent. There was, we think, an implicit acceptance in the submission that the consolidation meant that there would be no obligation enforceable by the superior. Mr Smith did not comment on Mr MacLeod's argument in that regard which is set out below.

In relation to the plea of res judicata, he referred to the tests set out in McPhee v Heatherwick, 1977 SLT (Sheriff Court), 46. There has to be an antecedent judicial decree of a competent Court pronounced in foro contentioso between the same parties relative to the same subject matter and proceeding on the same grounds. He referred also to Esso Petroleum Coal Limited v Law, 1956 SLT, 105.

He submitted that the previous application involved the same parties and had led to a decision by a competent tribunal pronounced in foro contentioso. He considered that the only matter now in issue was whether the subject matter was the same. He referred to Murrayfield Ice Rink Ltd v Scottish Rugby Union, 1972 SLT (Lands Tr), 20 and Tully v Armstrong, 1990 SLT (Lands Tr), 42. These cases supported the proposition that the proper course in an application under section 1(3)(c) is to seek a full order which would remove all restrictions in title. If not, an applicant could deal with, say, five separate restrictions by way of five separate applications, which would be vexatious and would also cause insuperable problems over compensation. He submitted, accordingly, that the "subject matter" in the lands tribunal context must be "all those title conditions which preclude development".

He accepted that the doctrine of res judicata was based on equitable considerations which might involve balancing the harm to the applicant against the trouble to the objector. It was normally the case that where an applicant's problems were due to mistake or oversight there was no reason not to apply the principle. He referred to Balfour v Archibald Baird & Sons, 1959 SLT, 273. The principle had to be assessed broadly and not avoided by looking too closely at legal technicalities to distinguish between two cases. He referred to Graham v Secretary of State for Scotland, 1951 SLT, 312, at page 321 for the simple test: "what was litigated and what was decided?" The merits of the present action would require what would essentially be a complete rehearing of the first application. In other words it was indeed the same issue in both applications. Although the existence of the two potential land obligations preventing the proposed development had been raised in the course of three prior hearings including the appeal proceedings before the Court of Session, nothing said or done in those proceedings should prevent us looking afresh at the issue of res judicata. A successful plea of res judicata would not mean that the present issue was in fact determined by the previous decision. The plea normally arose where a pursuer realised that previous proceedings had been incomplete and sought to raise some additional claim. If the applicants ought to have raised the matter in the previous application because it raised the same issues, the plea was good against them. It would have the effect of leaving the restriction standing against them.

Mr Smith made it clear that his submissions on competency was on an esto basis. He was entitled to rely on the applicants' own position. However, he submitted that the objector's position was that she was indeed a benefited proprietor in respect of the declaration. He produced a copy of her land certificate which showed that the Keeper had recognised the declaration as a burden on her subjects. She was a burdened proprietor in respect of part of the initial subjects and was accordingly to be treated as a benefited proprietor in respect of the rest of the subjects. This had been recognised by the fact that the applicants had raised the application; that the developers had refused to accept the title; and that the tribunal had already decided that there was a community of interest amongst the Ingleside proprietors who had been declared to be benefited proprietors. He further submitted that, if the purpose of the provision against sub-division was solely in connection with feu duty collection, there was no need for a reference to both sub-division of the feu duty and sub-division of the ground. The latter would not add to the protection of the superior. He further submitted that it was not sufficient to have regard only to the intentions of the parties to the original feu contract. The Act specifically allows affected proprietors to have a say. That could never have been the purpose of the original parties. Accordingly, where a community of interest has been established, objectors who now require to be considered by the tribunal should be treated as within the contemplation of the original parties. In any event their amenity was an element which ought to be in contemplation. He referred to MacArthur v Mahoney, 1975 SLT (Lands Tr), 2.

Mr Smith made certain other submissions in relation to the possible disposal; the prejudice to the objector if her right to object to further division was not maintained; and her right to compensation if the declarations were treated as obligations and discharged. We need not consider these matters further in light of our ultimate disposal of the case.

Mr MacLeod started with a submission that Mrs Smith had no locus to oppose the application. Under the titles she was not a benefited proprietor. Although it was now accepted that she was an affected person, her own pleas demonstrated that she had no interest. A potential objector could have no interest to argue that there was no valid obligation. Similarly, there could be no interest to argue that the case had been decided against her on a previous occasion. (It is apparent that this submission proceeded on a misunderstanding of the intent of the objector's pleas and we find it unnecessary to deal further with it).

He submitted that although Mrs Smith was not a benefited proprietor and although there was at present no obligation which could be enforced by any party, the declaration was an obligation which fell within the provisions of section 1(2). He referred specifically to the provision that "an obligation includes a future or contingent obligation". He accepted that the effect of the consolidation of the feu was that any condition was not enforceable by the superior at present and submitted that in light of the decision of the Inner House it was clear that there were no parties with a jus quaesitum tertio in respect of the declaration. However, the obligation was not terminated by the consolidation. If there was a divergence in title in the future, the burden would re-appear. It was accordingly an obligation which was future or contingent. It would come into effect on any future separation of the titles. In any event, an obligation which was not a real burden in the traditional sense might be a land obligation within the meaning of section 1(2). Objections had been taken by potential purchasers to the title because of the declaration. Mr Smith, of course, was founding on it. His own position was that, if the tribunal were to hold that there was no relevant obligation and to dismiss the case as incompetent or as unnecessary, he would be quite content. That approach had been taken in McCarthy & Stone (Developments) Ltd v Smith, 1995 SLT (Lands Tr), 19.

He was asked by the tribunal how the conditions in the Feu Contract and Charter of Novodamus could be relevant in respect of any future separation of the dominium directum and dominium utile of the burdened subjects. He did not attempt a positive submission. He referred, however, to Brookfield Developments Ltd v Keeper of the Registers of Scotland, 1989 SLT (Lands Tr), 105, as quoted in McCarthy & Stone, (supra), and to the quotation from the title sheet where the Keeper's comment appeared to encourage the view that a Minute of Consolidation did not permanently extinguish the obligation. He also referred to the dicta of the Court in the Opinion referred to above in respect of the first application. The Court had not positively excluded the possibility of the obligation being enforceable in the future. He considered it unnecessary for him to argue positively that the burden was an enforceable land obligation. He was content that the tribunal either dismiss or discharge. It was sufficient that potential purchasers were genuinely nervous about the title. He had no recollection of any submission in the course of the appeal which would have prompted the dictum to which he referred. In any event, as there was a positive submission that Mrs Smith was a benefited proprietor, there was plainly a live issue for the tribunal to determine.

In relation to the argument on res judicata he said that he had no objection to the fundamental principles of law upon which Mr Smith proceeded. It was necessary to demonstrate that the subsequent litigation involved the same parties; that there had been a properly contested litigation and decision; and that "the issue" in both was the same. He submitted that, in fact, none of these requirements was satisfied. In the first application Mrs Smith had been a benefited proprietor. She had contested the application on that basis. On his submission and, indeed, understanding of the present position Mrs Smith was accepting that the right was only in the superiority. Her interest was as an affected proprietor. These were different capacities and would require to be assessed on a different basis by the tribunal.

He also submitted that the issue was not the same. He accepted that the word "issue" was used in different ways. However, his submission was that in the previous case the issue was whether benefited proprietors had sufficient interest to insist that a burden conceived for their benefit should remain. The present issue was whether a burden for the benefit of a superior should remain. It was true that the underlying question was whether houses could be built, but the legal issues to be determined were different.

In any event the argument based on the Murrayfield case (supra), had been dealt with by the Inner House. The tribunal in the present application could not disregard that decision.

Further, he submitted that where the obligation was a different obligation the relevant "issue" was a different one. The matter could be tested by considering what the consequence would be. It might be that if the plea of res judicata was sustained the tribunal would hold that it had, in effect, already determined the question. That might be sufficient to dispose of the present application but would leave potential loose ends. He resisted such a determination. In the course of restating his arguments in summary, Mr MacLeod submitted that the declaration had plainly been conceived for the benefit of the superiors. The superiors were not objecting to the discharge. On any view the consolidation and absence of objection should be treated as equivalent to positive consent by the superiors. Accordingly, there was no party with a title to object and no basis for an affected person to be heard. Further, it was submitted that Mrs Smith's interests as an affected proprietor had already been covered by the disposal of the case in which she was a benefited proprietor. Any diminution of amenity was covered by the compensation awarded. She had no continuing interest. He agreed in the present case that instead of a complete discharge he would be content with a variation mirroring the original order. However, there was no need for such a restriction.

Decision

The submissions appear to raise three substantive issues: namely, how the absence of any declaratory jurisdiction should affect our approach to legal questions debated before us; whether the provisions in the titles which we are asked to discharge constitute a land obligation within the meaning of section 1(2); and whether the plea of res judicata is well founded.

It is plain that, although the tribunal does not have a declaratory jurisdiction, there is a need for it to be satisfied that the subject of the application is a land obligation within the meaning of section 1(2), so that the tribunal has jurisdiction to deal with it. As Mr MacLeod accepted, an applicant might, in practice, be perfectly well served by a decision explicitly dismissing the application as incompetent because the subject of it was not a land obligation. This might, for many practical purposes, be as effective as a declarator.

It is a non sequitur to say that, because a tribunal does not have power to grant a declarator, any decision which might appear to have the same effect as a declarator is beyond its powers. It must be clearly kept in mind that a decision of the tribunal expressing an opinion as to the nature or enforceability of a particular provision has no legal effect except that it may prevent an applicant having the provision treated as a land obligation and discharged under the provisions of the Act. In practice such a decision might be sufficiently persuasive to satisfy third parties, but any party who was not persuaded would be free to ignore it and seek his remedy in other proceedings.

It is unnecessary for us, in the present case, to express a view as to how we should treat an application made - openly or covertly - for the sole purpose of obtaining a persuasive decision as to whether or not a particular provision is a subsisting land obligation. If a real dispute exists as to whether or not a provision is a land obligation, we see no reason of policy for the tribunal to attempt to find ways of rejecting the application without giving reasons bearing on the merits of that dispute. The persuasive weight any party would attach to such reasons as we did express might be dependent upon the circumstances in which the tribunal was called upon to decide it. That, however, would not be a matter for us. It must be recognised that parties have a right to avail themselves of such legal remedies as appear convenient to them. If a landowner is faced with a contention that his subjects are burdened, he is entitled to take the view that the most convenient way of relieving himself from the burden is to seek to have a discharge by the tribunal. If the tribunal decline to grant a discharge because they are not satisfied that there is a subsisting enforceable land obligation, it seems clear to us that we are bound to give clear reasons for so deciding. The fact that, in doing so, we might in practice resolve his problem can, if anything, be regarded as an additional justification for giving such reasons rather than an impediment to doing so.

It is not disputed that the tribunal are entitled to be satisfied that the provision in issue is a subsisting land obligation before they can go on to consider the exercise of the power to vary or discharge: McCarthy & Stone (supra), at page 26. It is to be observed that in addition to requiring to consider in limine whether the provision in issue constitutes a subsisting land obligation and thus falls within the jurisdiction of the tribunal, the tribunal must inevitably consider the nature and purpose of the provision and the nature and extent of the rights conferred by it in determining the application in terms of section 1(3).

We have therefore no hesitation in holding that the absence of any declaratory power in no way impedes us in dealing with the question of the validity and enforceability of a supposed land obligation and in giving such reasons as we consider appropriate.

We are satisfied that the declaration is not a subsisting land obligation. In particular, it is not an obligation which is either enforceable or binding within the meaning of subsection 1(2), which provides as follows:-

“A land obligation is an obligation relating to land which is enforceable by a proprietor of an interest in land, by virtue of his being such proprietor, and which is binding upon a proprietor of another interest in that land, or of an interest in other land, by virtue of his being such proprietor.

For the purposes mentioned in this subsection, an obligation includes a future or contingent obligation …”.

As a provision in a feudal contract, it is to be assumed that the declaration was intended simply to regulate arrangements between parties and their successors unless it can be demonstrated that their intention was to advance the interests of a third party: Gloag and Henderson, 10th ed, 11.4. Accordingly, unless there is a clear indication of an intention to create a jus quaesitum tertio, the obligation will not be enforceable by any other party no matter how strong their apparent interest may be to have it enforced.

The question of what is required to establish a jus quaesitum tertio has been described as ground which has been well trodden. The effect of the authorities is summarised in Gloag and Henderson, 11.7, and is dealt within Gordon, Scottish Land Law, 22.59 to 22.61. The declaration does not appear to us to come into any of the established categories.

The fundamental consideration, of course, is to identify the intention of the original parties. We consider that there is nothing in the wording of the declaration which hints at any intention to benefit proprietors of the divided subjects themselves. Even if the prohibition on dividing the land was unnecessary for protection of the superiority, as contended by Mr Smith, there is nothing in that to allow the inference to be drawn that it was intended to benefit anyone else. The submissions did not refer to the difference between the wording of the declaration in the Feu Contract and the Charter of Novodamus. We have not found it necessary to rely on the difference, but we note that the latter does not in fact have a double prohibition against both dividing the land and dividing the feu duty. It is limited to a prohibition on division of the land. This is consistent with an intention to protect the superior's interest in relation to feu duty.

In any event we consider that we are bound by the Opinion of the Inner House to hold that no jus quaesitum tertio was conferred by the declaration. Dealing expressly with the declaration, the Lord President, at page 6, said this: "It is obvious that the purpose of the declaration is to prevent the feuar subdividing the subjects to an extent which would make it difficult for the superior to recover his feu duty. That is plainly a restriction which is conceived in the interests of the superior alone and which could never be enforced, say, by Mrs Smith".

It is not disputed that if a jus quaesitum tertio had been created it would persist despite any action taken by the original contracting parties or their successors. However, as we are satisfied that there was no jus quaesitum tertio and accordingly no rights in third parties to enforce the obligation, we now turn to consider the implications of the Minute of Consolidation in respect of the rights of the superiors.

We are satisfied that the effect of the Minute of Consolidation is wholly to extinguish the feuing conditions: Gordon, Scottish Land Law, 22.79. The consequences of formal consolidation are quite different from the effects of a situation where the dominium directum and dominium utile simply come to be held at one time by the same person. In that situation the separation of the fee of property and fee of superiority remain. As is plain on the face of the Minute, Strathkelvin District Council were infeft proprietors of both superiority and property of the relevant subjects when the Minute was executed. In terms of section 6 of the Conveyancing (Scotland) Act 1874 the effect of the Minute was to consolidate the property with the superiority to the same effect as consolidation effected by resignation ad perpetuam remanentiam. Consolidation brings to an end the separate fees. Separate fees could, of course, be created de novo but they would be created on their own terms: Craigie, Heritable Rights, 425. We are unaware of any practice, authority, or principle which might suggest that the original separate fee estates of superiority and property remain in some indeterminate limbo capable of being restored to full effect either accidentally or by the deliberate action of the consolidated proprietor. On the contrary, we think it plain that in principle the proprietor of the consolidated estates has dominium plenum and is free to create such new estates in it as he wishes. In any event, we are not aware of any existing basis upon which the superior might be compelled to recreate the original dominium utile. Accordingly, we see nothing which could allow us to accept the declaration as an obligation which "is enforceable" or "is binding".

We consider it self evident that a "future or contingent" obligation must, on any view, be one which has its origins in the present and cannot be avoided solely at the will of the supposedly burdened proprietor. It cannot cover obligations which may be created in the future. Nor is there any way in which this can be regarded as a contingent obligation. As is stated in Gloag and Henderson, (supra) 3.13:

“An obligation is termed future when it will become exigible either on a fixed date or on the occurrence of some event which is certain to happen … An obligation is contingent when it is subject either to a suspensive or a resolutive condition”.

None of these requirements is present here.

Mr MacLeod referred to the interjection made by the Lord President in his Opinion, at page 7. It may immediately be observed that this was plainly obiter, and when the context is examined it is clear that the Lord President did not have the Minute of Consolidation in mind. He expressly stated: "The validity of any … objection to the title was not argued before us and we express no opinion on it". The interjection itself appeared in the following context: "But, as we have mentioned already, the Council acquired the superiority in 1974. Therefore at present - whatever might be the position if the Council were no longer the superiors - as a practical matter the declaration is not an impediment of the kind …". We take the passage to deal explicitly only with a situation where the superiority has been acquired by the owners of the property and the interjection to reflect no more than a recognition that this fact itself would not necessarily extinguish the condition. Nothing in the passage suggests that following consolidation the dominium utile remains as a separate fee, far less a fee burdened by existing conditions.

Mr MacLeod also referred to MacCarthy and Stone (supra) and to the narrative of the burdens in the Brookfield case as there quoted. Here again, at its highest the observation was no more than an expression of doubt, this time by the Keeper of the Registers. Because the comment was seen to have been made in the context of a consolidated title we were asked to accept this as a doubt about the effect of consolidation. However, direct reference to the report of the Brookfield case Brookfield Developments Limited v Keeper of the Registers of Scotland, (supra), demonstrates immediately that the doubt was not about the effect of the Consolidation but as to whether the particular provisions created a jus quaesitum tertio which, as is agreed, would not be affected by consolidation. Implicit in the argument for the Keeper and, indeed, in the whole discussion, in Brookfield, there is an acceptance that unless a jus quaesitum tertio had been created, the Consolidation did terminate the obligations.

We accordingly are satisfied that the declaration is not a subsisting land obligation within the scope of the provisions of section 1(2) of the Act. Accordingly we have no jurisdiction to deal with this application.

In considering the plea of res judicta in the present action it is clear that we are not concerned with the question of whether the existence of the declaration ought to have been treated as a reason to refuse the previous application. However, it is important to note that the possibility of separate proceedings being taken to deal with the declaration was expressly in the contemplation of the previous tribunal (decision at page 37). That in itself seems to us to dispose of the suggestion that the previous decision should be treated as having dealt by implication with the subject matter of a subsequent application.

We are, in any event, of the opinion that, properly understood, the subject matter in proceedings under section 1 is not the broad issue of whether a particular development should be permitted, but the narrow one of whether a particular land obligation should be varied or discharged. The tribunal has a statutory function to deal with obligations which fall within section 1(2) by applying their discretionary powers under section 1(3). If an obligation exists which falls within the section, the fact that it could conveniently have been dealt with at the same time as an obligation which was the subject of a previous application may have implications for expenses but cannot oust the jurisdiction of the tribunal. If a land obligation remains valid and binding despite a decision in relation to a different obligation, we see no basis upon which a party can be prevented from requiring the tribunal to exercise its statutory function in relation to the second obligation.

It is, no doubt, good practice to attempt to have all potentially relevant land obligations disposed of at one time. There may well be situations such as Murrayfield Ice Rink (supra), where the failure to do so is considered by the tribunal to be fatal to the first application. However, this will always be a matter of circumstances.

Mr Smith's example of a party deliberately treating five separate obligations by way of five separate applications appears to us to have no basis in reality. An applicant would be very unwise deliberately to expose himself to five separate chances of refusal. Even if he did, it is hard to see how this would truly prejudice a potential objector. A tribunal has a wide discretion not only in relation to expenses but in the regulation of its own proceedings. In an appropriate case it could take judicial notice of the previous decision as far as it appeared to determine any substantive point in issue.

We think that the difficulty in the present case has arisen from a failure to identify and distinguish different senses in which the term "issue" may be used. We are clearly of the view that the test: "what was litigated and what was decided?" cannot be simplified to: "what was the issue?". The latter word can be used in various senses in the course of Court proceedings. The essential subject matter of proceedings before us is whether or not a particular identified land obligation should be varied or discharged. The nature and purpose of that obligation is the primary focus of our attention. It is true that as part of the answer to the question the tribunal might have to consider substantially the same factual material as in a previous application. However, assessment under section 1(3)(c) will always involve consideration of the nature of the rights of the objector. The fact that Mrs Smith was accepted as a benefited proprietor in one application and is not accepted as such in the present, is itself an important difference but there may be other differences.

We accept that the parties to the two applications should be treated as being the same. Mrs Smith appears in her own private capacity in each case. We consider that the distinction between her rights as benefited proprietor and as affected person are indeed distinctions in the nature of her right rather than her capacity. We are, however, satisfied, for the reasons set out above, that the subject matter of the two applications cannot be regarded as the same and that the plea of res judicata is not well founded.

Having found the application to be incompetent it is unnecessary for us to deal formally with the applicants' own pleas-in-law.

Although the objector has had some apparent success, it is clear that in fact she is no better off than if she had not entered the process. The substantive proposition was advanced on her behalf that the subject matter of the previous application ought to be seen as covering all the barriers to development, but it was apparent that she sought by that argument to achieve the result of having the declaration remain as such a barrier. In our view the argument had no basis in fairness or common sense. It depended on a purely legal proposition on which she was unsuccessful. Accordingly, although it is frequently thought appropriate in our proceedings for an objector to be entitled to expenses in applications under section 1, we do not think such an approach appropriate in the present case. We do not consider that the applicants are entitled to their expenses. They chose to raise what we have determined was plainly an incompetent action. We accordingly find no expenses due to or by either party.