Heritable Property – Title Conditions – Discharge or variation – Expenses – Applicants seeking expenses following withdrawals of objections after answers to objections lodged – Circumstances in which expenses not awarded – Title Conditions (Scotland) Act 2003, Section 103(1)

William J.Kirkwood v Kim Thomson and Others
24 April 2008

An original application for discharge of a condition prohibiting further development was vague as to the applicants’ proposals and the grounds for the application. There were a number of objections, in response to which the applicants expanded the grounds and to an extent altered their proposals. The objectors then withdrew their opposition.

Although the application had been successful, the Tribunal refused to award expenses to the applicants. The nature of their proposed development was a relevant matter. The applicants had changed their position on that and the objectors had then responsibly withdrawn their opposition. Further, there had apparently been no prior contact or attempt to discuss the proposals with surrounding neighbours. In these circumstances, the objectors could not reasonably have been said to cause the applicants expense and an award of expenses was not appropriate.

Authority referred to:

West Coast Property Developments Limited v Clarke and others (Expenses) 6.10.2006, LTS/TC/2005/21

See full decision:  LTS/TC/2007/44 (Expenses)