Heritable Property – Title Conditions – Discharge or Variation – Group of 5 houses built in 1980’s – Deed of Conditions – Restriction of use to one dwellinghouse and prohibition of additional building without consent – Variation sought to permit additional house – No firm proposal or design – Reasonableness – Site on sensitive part of development – Real prospect of substantial detriment to amenity – Condition directed at issues concerning neighbouring owners – Refusal – Title Conditions (Scotland) Act 2003, Sections 98, 100

Heritable Property – Title Conditions – Discharge or Variation – Expenses – Amount – Successful respondent – Party litigant – Time and effort involved in conducting case – Case disposed of on written submissions and site visit – Award of £360, i.e. 12 hours at £30 per hour - Litigants in Person (Costs and Expenses) Act 1975 – Lands Tribunal for Scotland Rules 2003, Rule 28(2)

Hamilton v Robertson & Ors
10 January and 14 May 2008

The applicants sought variation of title conditions so as to permit them to build an additional house in their garden ground. The application was disposed of on written submissions and a site visit. The applicants’ house was one of an attractive landscaped 1980’s development of 5 houses on an irregularly shaped area, part of the grounds of a mansionhouse. The relevant deed of conditions restricted use to use as one dwellinghouse and prohibited additional building without the superior’s consent and in any event within a building line, although this had been encroached on by one of the houses. The houses retained the open aspect at the front provided for by the conditions. There had been changes in the immediate neighbourhood: the mansion had been converted into a nursing home, with a substantial extension, and then when that closed, a modern block of flats had been erected. That had given the entrance to the grounds a substantially different aspect, but the group of 5 houses, with its separate driveway, was largely screened. The applicants had received a broad indication that planning consent might be obtained although it had been indicated that the loss of trees would be likely to affect the amenity and would require a full assessment. The applicants had no detailed or final plans but indicated “the likely site”. This occupied an area of ground beside a bend in the middle of the private driveway, and encroached on the building line.

The application having been refused, one of the successful respondents, who had not had representation, sought an award of expenses, which he stated at £525, i.e. the £25 fee for representations plus a sum of £500 for his time and effort conducting the case. He referred to the charge-out rate in his own business of £100 per hour and itemised his time at 32 hours but indicated that he would limit his claim to 20 hours at £25 per hour. The principle of expenses was not opposed.

Held (1), refusing the application, the admittedly quite major developments in close proximity, and certain other changes of circumstances suggested, had not had any significant effect on the amenity of this group of houses. The conditions could still fulfil their purpose of protecting the setting of these houses. An additional house on the likely site, a sensitive area of the development, would almost certainly have some adverse impact on the amenity created by the layout of the houses, although little weight should be attached to an attractive view of the Pentlands from the common driveway, this not being particularly protected by the conditions. The right of veto or control was a considerable benefit to the neighbouring owners. The conditions certainly impeded the applicants’ enjoyment of their property. The length of time since the condition was created was not significant. The prospect of planning consent was not as good as the applicants suggested and in any event of limited relevance. The relevance of the lack of specific plans varied from case to case. In this case, while it was not impossible that a house of sympathetic design might be reasonable, in the absence of any indication of the likely type or design, it was not possible to say that the extent of the likely interference was such as could reasonably be met by an award of compensation. In all the circumstances, the Tribunal was not satisfied that the application was reasonable.

(2) An award of a fixed sum of £325 expenses, including 12 hours at £30 per hour for time and effort, would be made. Each case depended on its circumstances, and there might be some relationship between the time taken and the rate allowed. Some regard was to be had to the party’s earning capacity but this was not a claim for loss of earnings. The party’s submissions were (appropriately) addressed to the particular circumstances rather than legal arguments. Although detailed analysis was not appropriate, the schedule of time appeared somewhat excessive and included matters which should be seen as part of the ordinary activity of an owner rather than conduct of the case. 12 hours seemed appropriate. As the number of hours claimed was not being allowed, the Tribunal felt free to fix a higher hourly rate and felt £30 was more appropriate.

Cases referred to: None

See full decision:  LTS/TC/2007/21 and LTS/TC/2007/21 (Expenses)