[1] The applicants were successful in their application to vary a title condition to allow the erection of a double garage on an area of garden ground beside their house. Objections had been lodged (on a joint basis) by a number of neighbouring proprietors. There was some background in respect that there had been a previous unsuccessful application, for the same land, by its then owners for variation so as to permit the construction of 2 semi-detached houses. The present application was, with the parties’ agreement, disposed of on the basis of written submissions and a site inspection. Reference is made to the Tribunal’s Opinion dated 28 January 2008. Both sides were legally represented and their solicitors attended the inspection. The applicants have applied for an award of expenses. The respondents oppose this, seeking instead a finding of no expenses due to or by either party or, alternatively, modification of any award in favour of the applicants to 30%. The parties have lodged written submissions, and produced certain documents, in relation to this issue of expenses.
[2] Having considered the parties’ submissions, the Tribunal has decided that the applicants are entitled to their expenses, without any modification, in respect of the period from the lodging of the respondents’ representations onwards.
[3] It is clear that the applicants were entirely successful. They did not seek a complete discharge of the condition, and they made clear in their application that what they were seeking was variation so as to permit the particular development in terms of the planning consent which they had obtained. The principal ground of opposition to the applicants’ claim for expenses was that the Tribunal should disapprove of an aspect of their conduct of the proceedings, namely their failure to afford any opportunity for discussion, or to attempt to discuss the matter, with the respondents prior to submitting their planning application. The submission was that if such an opportunity for discussion and consultation had been given, agreement, perhaps on a different site for the garage, may have been reached. The respondents referred to two further matters: firstly, they pointed out that they had sought to limit expenses on both sides; and secondly, that account should be taken of the fact that they were, in the main, benefited proprietors, their entire street was to be affected, many had resided in this community for some decades, and “it seems entirely unreasonable in these circumstances for them as a body of people to fail to lodge any opposition to the application … ”, and many of them were retired and on fixed incomes so that an award might have an extremely detrimental effect on them.
[4] The applicants’ response to these submissions, in short, was that their conduct was entirely reasonable in the circumstances; and that the other two matters raised were irrelevant.
[5] We accept that, despite the applicants’ complete success, it is appropriate to consider whether there was any unreasonableness in their conduct of the case which should be reflected in expenses. It is a question of the circumstances of each case, and the Tribunal should look closely at any suggestion that the applicants may, in some way, by their conduct, have contributed to the expense which they seek to recover. In this case, it is suggested that they did not give any opportunity for discussion or consultation about their proposal to erect this garage and that if they had done so, some agreement may have been reached and thus the expense of resisting the opposition to their application may have been avoided. What happened, in short as we understand it, is that they wrote round their neighbours 3 days before their intimation of the planning application, advising that the application was to be made, acknowledging the existence of the ‘servitude’ and that they would require to apply to this Tribunal should planning permission be granted, and concluding that “we do hope that you can support us in our application”; some 4 neighbours wrote in reply making some points; and (the respondents do not challenge this assertion) the applicants visited each of these neighbours to discuss the matter; beyond that, however, they did not invite views or attempt to discuss or negotiate. Both sides also referred to the previous history, which, again in very brief summary, was that, at the time when they had plans to build a strikingly modern house on the adjoining, unburdened area of their land, the applicants did consult the neighbouring community well in advance of submitting their planning application and, for whatever reason, in the event there was virtually no opposition to that application, which succeeded; but also that later, when they submitted plans for proposed gates into this garden ground and a driveway for vehicular access, there was widespread opposition to the proposed gates, which opposition was successful in altering that part of these plans.
[6] Having considered the particular circumstances of this case, as set out at more length in the competing submissions, we have reached the view that the applicants’ conduct cannot be categorized as unreasonable in relation to this application. It is true that the applicants did not specifically seek views or initiate consultation or negotiation, but it seems to us to be a clear enough inference from both the terms and the tone of their letter of 19 November 2006 that they would be prepared to discuss matters, as indeed they did with those neighbours who responded, albeit that they had by then proceeded with their planning application. Further, once the opposition of the body of neighbours was clear, we think it was a reasonable view that the chances of reaching agreement with every one of the benefited proprietors, as they would have required to do in relation to the title condition, were not high. Reference was made to a possible re-positioning of the garage, but from our knowledge of the case, including of course our look at the site, it seems to us somewhat unlikely that agreement on that, so as to satisfy all those who made representations in relation to variation of the title condition, would have been achieved. We have noted that one of the neighbours who responded to the pre-planning application letter did raise the possibility of compromise on the positioning of the garage, but the predominant theme of the many objections to planning permission was that there should be no building at all (beyond the greenhouse allowed for in the title condition) within the subjects. The applicants might of course have reduced their plans, for example to a single garage, but as we have held their proposal for a double garage in the particular proposed position reasonable in the face of the title condition, that should not count against them now.
[7] The other matters raised by the respondents appear to us to have no weight. There may be natural sympathy for long-standing benefited proprietors who may indeed have limited incomes and who may perfectly reasonably decide to oppose an application, but the relevant statutory provision (Section 103(1) of the Title Conditions (Scotland) Act 2003, reversing the Tribunal’s previous practice) requires us primarily to consider the question of success. This position was spelt out in the notices which the Tribunal sent intimating the application, and we also note that the respondents were legally represented. The fact, which we accept, that the respondents sought to limit the expense in one or two ways also unfortunately has no weight (although it will hopefully have reduced the burden on them of their and their opponents’ expenses).
[8] For these reasons, we grant the applicants’ motion for the expenses of the application (but, in accordance with our usual practice, which we consider appropriate in this case, only from the date of intimation to the applicants of the respondents’ representations opposing the application). We would just mention that the respondents, in their final submission to us, referred to a claim exceeding £13,500. We have no idea of the actual amount of the claim, but as it will in this case only cover preparing answers to the representations and final submissions, attending the site inspection, and dealing with this matter of expenses (and work necessarily related to these stages of the case), we would expect the level of recoverable expense to fall substantially short of that figure.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties 15 May 2008
Neil M Tainsh – Clerk to the Tribunal