Heritable Property – Title Conditions – Expenses – Application under Title Conditions (Scotland) Act 2003, Section 90(1)(b) for renewal or variation of title conditions following Notice of Termination under Section 20 (‘Sunset Rule’) – Respondents, burdened proprietors, also raising issue of enforceability under Section 53 – Extent of Success – Tribunal holding burdens enforceable under Section 53; not either simply renewing or simply discharging burdens; but varying to the extent of permitting respondents’ extension proposal to proceed – Substantial success for respondents in achieving variation but same result obtainable by application under normal jurisdiction to vary – Success of applicants in issue of enforceability, a separate issue which occupied substantial part of hearing – Award of expenses to respondents, restricted to one third – Certification of architect as expert witness – Title Conditions (Scotland) Act 2003, Section 103(1)

Brown and Another v Richardson and Another
1 November 2007

The applicants applied under section 90(1)(b)(i) of the 2003 Act to renew real burdens in an 1888 Feu Charter following the respondents’ Notice of Termination under Section 20 (‘Sunset Rule’). The respondents proposed to build an extension. The Tribunal considered whether to renew or vary the burdens; but also, the matter being raised by the respondents, whether, on a consideration of section 53, the burdens were still enforceable. The Tribunal held the burdens enforceable; that they should not be simply renewed or simply discharged; but that they should be varied to the extent of permitting the respondents’ proposed development. The respondents sought expenses and certification of their architect as an expert witness.

Held, (1) finding the respondents entitled to expenses restricted to one third, following West Coast Property Developments Limited v Clarke & Ors, the Tribunal’s approach prior to the 2003 Act was no longer open. Certain criticisms by the applicants being rejected, there was nothing in any aspect of the conduct of the present proceedings, or other equitable consideration, which should affect expenses. Application of the ‘success’ rule led to an award in favour of the respondents but limited to one third. The respondents had a substantial measure of success in achieving variation which enabled them to proceed with their proposals, but that success might have been achieved by an application under the normal jurisdiction to vary. The respondents had caused the applicants the expense and trouble of bringing the application and had throughout sought the complete discharge of the burden, which they had failed to achieve. Further, they had themselves raised, and failed on, the issue of enforceability, a clearly separate and difficult issue which occupied a substantial part of the case, the evidential overlap being very slight. The Tribunal also had slightly in mind that the applicants had throughout the proceedings sought to have the case disposed of on written submissions: had the application been simply to vary the burdens to enable the extension proposal to succeed, it would have been entirely suitable for disposal on written submissions. On an overall consideration of the extent of success, and bearing in mind that the respondents had put the applicants to some expense, the respondents should be awarded their expenses but this should be limited to one third.

(2) the respondents’ architect should be certified as an expert witness because, although he was the architect in relation to their extension and to some extent was simply giving evidence explaining that, the question (it being clear that he was an expert) was whether he had prepared himself specially to give expert evidence in these proceedings. It was not essential for the expert to have prepared a special report. There was just sufficient indication in this case that he had specially prepared to give this evidence, which was not confined to describing the proposals, and it was reasonable for the respondents to incur this expense.

Authorities referred to:-

British Steel plc v Kaye 1991 SLT (Lands Tr) 7
Harris v Douglass 1993 SLT (Lands Tr) 56
Donnelly v Regan & Mullen and Ors, 1.9.2006, LTS/TC/2005/01
West Coast Property Developments Limited v Clarke and Ors, 6.10.2006, LTS/TC/2005/21
Smith v Prior and Ors, 2.3.2007, LTS/TC/2006/06
Agnew, Variation and Discharge of Land Obligations, para 8-14, page 152

See full decision:  LTS/TC/2006/41 (Expenses)