[1] This is a motion for expenses by the applicants. They applied for the discharge of title conditions; and also for a determination as to the validity of the conditions. Objections were lodged by various proprietors, following which the applicants, in the normal way, lodged answers to the objections. All the objectors withdrew their opposition. As a matter of fact, two of the objectors had actually withdrawn before the applicants’ answers were lodged. The withdrawals of all the objections made the application for discharge unopposed, thus entitling the applicants to succeed (and rendering the application for a ruling on validity unnecessary). The discharges were accordingly granted. The applicants now seek their expenses, which would in fact only cover the expense of answering the objections, since the Tribunal does not normally grant the expenses of the original application, which cannot be said to have been caused by any actings of objectors.
[2] The respondents oppose the award of expenses on a number of grounds, set out in a letter of 25 March 2008 from Mr Kindness (1 Pantonville Road, Seamill) on behalf of all the objectors (and referring also to comments made in his letter dated 18 January 2008 withdrawing his objections). It was contended that the respondents had had a relevant interest; that the applicants’ position as to the type of development contemplated changed, apparently in response to the intimated objections, their amended position was more in line with the title conditions and objections would not have been raised if the applicants had made their position about this clear at the outset; and that the applications were vague and it had been inappropriate to apply without having determined precisely what they were proposing. Mr McKillop (8 Hyndman Road, Seamill) also wrote individually on 19 March 2008, pointing out that he had in fact notified the Tribunal of his withdrawal prior to the applicants’ answering the objections. He also alleged that the applicants had at no time attempted to contact any of the home-owners who might be affected by their proposals and discuss the proposals with them.
[3] In response, the applicants point out that their application was entirely specific in that they were seeking discharge of a prohibitive feuing condition and that is what has been granted; they might yet develop the site in accordance with the originally stated proposal to form 6 flats; the objections were irrelevant and improper in seeking to use the title conditions rather than relying on planning legislation; and the objectors had by their actions delayed the development of the site.
[4] The issue of expenses cannot be decided on the basis that the respondents did not have an interest or acted improperly in any way: the application for a determination as to the validity of the conditions was not decided, that being unnecessary in view of the withdrawal of opposition to discharge. The respondents must be regarded as having been benefited proprietors entitled to seek to rely on the title conditions in addition to their rights in relation to planning.
[5] The applicants having been successful in obtaining the discharge sought, they would prima facie be entitled to their expenses in relation to that part of the procedure which was caused by the opposition. However, the Tribunal has recognised that failure or delay in clearly setting out the case for an application is relevant (West Coast Property Developments Limited v Clarke and Others, 6.10.2006, LTS/TC/2005/21). On this matter, both sides are correct up to a point. The applicants correctly point out that their application was simply for discharge and not for variation to permit some particular development. However, in their application, under the heading, ‘Details of Application’, they submitted:-
“The applicant seeks to permit the development of the feu to form a block of up to 6 flats.”
The respondents’ objections clearly responded to that. The applicants then altered their position on the likely development, submitting inter alia:-
“Although it is narrated in the application that the Applicants seek to build flats, this is by no means their final decision. The Applicants may seek planning permission to build two semi-detached villas or one large villa, which is possibly capable of sub-division for occupation by more than one family and they wish the flexibility to choose what style of property on which to seek planning permission.
…
“It is unlikely that the Applicants would seek to build more than four flats, if they were to choose a flatted development at all. The outward appearance of these may well be similar to that of a detached villa.”
Thus, the applicants introduced the nature of the proposed development into the issue. We are bound to say that, while withdrawal of the objections has led to the grant of a complete discharge (because section 97 of the Title Conditions (Scotland) Act 2003 entitle the applicants to have their application granted), had the applications proceeded to a hearing, the nature of proposed development would, as a result of the applicants having introduced the reference to it, have been likely to have been an issue. Therefore, it can be seen that the nature of the proposed development was relevant and the applicants changed their position on that matter. The objectors then responsibly, and mindful of the risk of expenses, withdrew their opposition.
[6] In a situation like this, and particularly where the opposition to the application has been short-lived, we think it will often be inappropriate to award expenses to the applicants. There is a further consideration in this case. Mr McKillop claimed in his letter that there had been no prior contact or attempt to discuss with the surrounding neighbours. That has not been contradicted. It is no doubt understandable that where there may be a question as to which, if any, neighbours are benefited, burdened proprietors may be inclined to come straight to the Tribunal. It seems to us, however, that neighbours who consider they are benefited and who lodge objections focusing on the particular proposed development suggested by the applicants cannot really be said to have caused expense when the applicants then back-track on their proposals and the neighbours withdraw their opposition without further procedure. If the applicants had approached some at least of the immediate neighbours, heard the opposition to a block of 6 flats and re-stated their position in the manner which they have done here, opposition to their Tribunal application would seem to have been unlikely.
[7] In these circumstances, we do not consider that the applicants are entitled to their expenses during the short period in which this application was opposed. We might add that in the case of two of the respondents, Mr McKillop and Mr and Mrs Clarke (12 Hyndman Road, Seamill), we could not have awarded such expenses as they had in fact withdrawn their opposition before the applicants answered the objections, although in fairness that fact had, in the circumstances, not yet been intimated to the applicants.
[8] We refuse the application for expenses.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties 24 April 2008
Neil M Tainsh – Clerk to the Tribunal