[1] The applicants in this application under Section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”) seek an award of expenses. The application was to vary the route of a servitude right of access. It was opposed, substantially on the basis of prematurity and that the respondents sought regulation of a number of matters in the event of the application being granted. By agreement of the parties, the application was disposed of on the basis of written submissions and a site inspection. Both parties were legally represented, although (quite understandably) there was no legal representation at the site inspection. The application was granted. The respondents had success on only one of the points raised, in relation to a small additional strip of ground which had not technically had the benefit of the servitude, but that matter was the subject of agreement between the parties and was perhaps not strictly within the Tribunal’s jurisdiction anyway. There was a slight hitch in the proceedings, in so far as the plans originally produced by the applicants had clearly been departed from by the time of the site inspection and some further procedure, involving the lodging and consideration of up-to-date plans, was required after the site inspection.
[2] The applicants rely on their success in the application, and make certain points about the respondents’ conduct of the matter, suggesting that the respondents had made unreasonable demands and that their unreasonable position had led to the applicants incurring substantial legal fees in respect of the opposed application.
[3] In answer, the respondents refer to the discretion conferred on the Tribunal by section 103(1) of the Act. They submit that in the particular circumstances of this case, the Tribunal should revert to the approach it followed before the Act and not award expenses unless the benefited proprietor had acted unreasonably in opposing the application. The respondents had not been unreasonable either in their negotiations or in their conduct of the proceedings. The respondents submitted that the applicants would receive a substantial financial benefit from varying the land obligation. The respondents had sought to protect their existing property rights and it would be harsh to award expenses against them when they had tried genuinely and in good faith to negotiate a resolution. Alternatively, if expenses were being awarded, they should be modified by 50%.
[4] The Tribunal has decided to uphold the applicants’ arguments and award expenses, except in relation to one matter. As the respondents are clearly aware, the Tribunal has, in a number of cases, considered the correct application of the new provision in the Act about expenses, particularly in relation to our previous practice of generally not awarding expenses against unsuccessful benefited proprietors. We are of the clear view that section 103(1) requires us to depart from that practice, and the respondents have not sought to argue that our general approach is wrong. They do, however, correctly point out that there is a discretion in every case. We must look at the circumstances of every case.
[5] In the present case, we are in no doubt that the respondents caused the expense of the proceedings from the date on which they submitted representations. It is not a question of the reasonableness of their position: essentially, we held that their position on prematurity was quite wrong, and we also reached the clear view that they had no right to have the conditions which they sought added to the varied servitude right. It may, or it may not, have been reasonable to raise and discuss these matters with the applicants. Generally, the Tribunal encourages parties to seek to resolve matters themselves, quite often by dealing with matters extraneous to the rights and wrongs of the application to discharge or vary. However, once it was clear that the applicants did not accept the respondents’ demands, the respondents (who made clear their acceptance that in principle it was reasonable to vary this access route) had to take a view on their position in the application and the fact is that in opposing, and continuing to oppose, they caused expense. The question of possible financial benefit to the applicants is irrelevant. Property owners are entitled to develop their property. If a development proposal makes it necessary to seek discharge or variation of a title condition, clearly the initial expense of the application is caused by the applicants’ proposal but the continuing expense of an opposed application may not be. Having considered the circumstances of this case, we can find no reason why the applicants should not be entitled to their expenses in respect of the period after opposition was intimated.
[6] There is, however, one particular matter which we think should be reflected. As narrated earlier, the applicants altered the proposed varied access route and failed to inform either the Tribunal or the respondents about this until it emerged at the site inspection. We have considered whether this has any relevance to the proceedings up until the site inspection, but in the particular circumstances we do not think that it has. This is not a situation where there was opposition to one particular route and the alteration enabled agreement to be reached or so altered the position as to demonstrate that the previous opposition was justified. We do not think it had any real bearing on the expense of the proceedings up to and including the site inspection. However, it did cause some further expense thereafter. In the circumstances, we have decided that the applicants should receive their expenses, without modification, from the date of intimation to them of the respondents’ representations up to and including the site inspection, but that they should not receive any expenses subsequently incurred. We recognise that there might anyway have been some final procedure (including this application for expenses) for which the applicants would normally be entitled to expenses, but that can be balanced against the fact that the respondents may have incurred some expense in considering and responding to the revised plans. We do think that the sloppiness of the applicants’ approach to the matter of altering their plans, with a quite substantial change to the point of access of the new access route to the respondents’ property, should be reflected in expenses.
[7] For these reasons, we have decided to find the respondents liable to the applicants in expenses, as taxed if necessary, from the date of intimation of the respondents’ representations to the date of the site inspection, inclusive.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties 9 June 2008
Neil M Tainsh – Clerk to the Tribunal