In this case we accepted that the title condition should be varied to permit the development for which the applicant had obtained planning permission. Both parties now seek an award of expenses. They agree that the proper approach to expenses is to be found in the decision of the Tribunal in West Coast Properties Limited v Clarke LTS/TC/2005/21, which considered the effects of Section 103(1) of the Title Conditions (Scotland) Act 2003.
On the face of it the applicant enjoyed the success in the action. We have no doubt that she was put to the expense of procedure in the Tribunal because of the respondent’s apparent opposition.
The respondent does not attempt to suggest that the applicant’s success was limited or that any award in her favour should be modified to reflect any particular aspect of the case. He advances a claim for expenses based on the proposition that the outcome of the case was what he had always been aiming for. He seeks an award of expenses apparently on the basis that he was put to the whole expense of opposition in order to restrict the applicant to that outcome.
We are satisfied that if the respondent’s approach had indeed been simply to achieve a result essentially equating to the eventual outcome, any competent professional adviser would have recognised the need to make this clear to the applicant and propose settlement accordingly. We have no reason to doubt the competence of the respondent’s advisers and, accordingly we must assume that this approach was never made clear to them. In any event, we are satisfied that it was never made clear to the applicant that by explicitly restricting her proposals to the scope of the planning permission, she could have avoided the delay and expense of the litigation. The presentation of the case on her behalf made it clear that her aim was to be able to sell the subjects with the benefit of the planning permission it had. It was never suggested that a developer would wish to build more house on the site or to building bigger houses. The questions were solely about “detail” and it was not clear what detail was in dispute.
The respondent’s position was never made entirely clear to the Tribunal. We put to counsel at the outset the question of what it was we would have to decide. It was said that the respondent wished to control the detail. It was contended that he had not been provided with sufficient detail. It appeared that his position was that he did not think the planning consent provided enough detail. He had never asked for specific detail on other points but his position, as we understood it, was that it was up to the applicant to provide “all the detail”. We understood him to contend that as he had never been given all the detail he was not in a position to consent. Our order introduces no detail beyond that mentioned, directly or indirectly, in the planning consents.
It is fair to say that we encouraged attempts at negotiation because we were unsure what the respondent hoped to achieve by his continuing opposition when he appeared so close to accepting that the development for which the applicant had planning permission could be accepted. But, even by the stage of the submission it was not clear what he was prepared to accept. The written submissions for the respondent are referred to for their terms. They had, of course, been drafted before the applicant made clear her position that she sought only a variation. But, Mr Mundy did not make any radical change to their terms. He stressed that the respondent wished any development restricted to what was envisaged in the planning consent but we were invited to refuse the application or, at most, to grant a variation to accord with that consent.
We accept that the material relating to attempts to negotiate after the hearing of evidence can be ignored. We recognise that an attempt was made to resolve a variety of issues going beyond the scope of the present application. We think it will often be necessary to take such an approach in order to achieve a satisfactory resolution between parties. But we are not in a position to express any view as to the reasonableness or other wise of parties’ approaches to such other matters.
As we are satisfied that the respondent did not at any time make a clear offer to the applicant to settle the matter by an agreement on the lines of our order, it cannot be said that the litigation was unnecessary. We accordingly approach the substantive issue on the basis that the applicant was a successful party and, prima facie, entitled to recover expenses. The bold, all or nothing approach taken by the respondent did not put forward any contention that there should, in the alternative, be some modification of any award in favour of the applicant. However, we think it appropriate to consider that question.
We think that an applicant ought to make it clear from the outset what order is sought. It may be that part of the confusion in relation to the respondents’ position could be attributed to the fact that, until the stage of submissions, the application was for complete discharge. Had the respondent been faced with an explicit request for variation on the lines of our order, he might have been forced to a more explicit statement of his position. We think this would have shortened proceedings to some extent, at least. We were also aware that the applicant had never attempted to seek permission based on the planning consent. It may be that she had good reason for her view that consent would not have been forthcoming but her position as to ultimate success would have been clearer had such a request been made. It might have forced the respondent to focus on specific detail.
We consider that the award in favour of the applicant should be modified to some extent and viewing matters broadly we restrict it by 15%.
It may be added that we had a concern that time was taken in this case to lead evidence about the dispute over the access road which patently was not a matter for us. The Tribunal will always consider the issue of wasted time even when this is not raised by parties. However, it is sufficient to say that, in the present case, we do not think it appropriate to penalise the applicant. It may be helpful to spell out further the implications of time spent in relation to the access road. No account need be take of this in relation to time spent at the hearing. But, the auditor may have to consider what work by Mr Munro was properly attributable to this case and what to the separate dispute over the line of the road.
As there is no opposition to the motion that Mr Munro be certified as an expert witness, we shall so certify.
If the accounts cannot be agreed they will be subject to audit by the auditor of the local Sheriff Court, in the usual way.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 10 September 2009
Neil M Tainsh – Clerk to the Tribunal