NOTE

Faeley v Clark and Doull (No 2)
(Expenses)

Introduction and Summary

[1] This regrettably protracted litigation has involved two applications to vary title conditions so as to permit the building of an additional house. The merits, and also a claim for compensation, have now finally been disposed of in the second application.

[2] Put shortly, the first application (LTS/TC/2005/30) went to a contested hearing, following which that application, as it related to the first respondents, Mr and Mrs Clark, was refused on the merits in June 2006. The amenity of these respondents’ property by the building restriction in question had crucially involved protection of fine views of the River Clyde and Arran. The Tribunal then indicated, as indeed was not in dispute, that the principle of building a second house on the applicants’ ground was reasonable but that the particular proposed house was of a scale and in particular a proposed height which made the objection of these respondents reasonable. Expenses were awarded in favour of these respondents. In relation to the second respondent, Mrs Doull, the Tribunal indicated that it would have allowed the application although her claim for compensation (which was on the rather less usual basis that the title condition had, it was said, reduced the consideration paid for the burdened property) would have had to be considered. Consideration of motions for expenses as between the applicants and the second respondents was also deferred. In the event, the first application was, understandably, not taken further.

[3] The applicants, however, wished to proceed with revised plans, considered to be in line with the views expressed by the Tribunal in the first application, for a slightly lower house. After certain failed attempts to secure agreement on this, they lodged this second application in September 2008. It seems that there never was any disagreement in relation to these plans in themselves, but there was a dispute in relation to the first respondents’ wish for protection against the growing of trees close to the boundary with their property. There was also the matter of the second respondent’s claim for compensation. Following various delays (including, sadly, the death of Mr Clark whose place was taken by his executors), agreement was eventually reached between the applicants and the first respondents on the terms of a variation order. The second respondent’s claim for compensation was then considered, on the basis of written submissions, and refused. The Tribunal’s Order dealing with the merits and compensation, but reserving issues of expenses, was made in November 2010. All three parties have applied for awards of expenses in this second application, and these applications have been considered on the basis of written submissions.

[4] The Tribunal has decided as follows:-

(i) As between the applicants and the first respondents, there should as regards this application be no award of expenses due to or by either.

(ii) As between the applicants and the second respondent, the applicants are entitled to expenses, in so far as related to the second respondents’ claim for compensation, from 15 October 2008, the date on which that respondent’s representations intimating her wish to carry on with her claim for compensation was received, onwards.

The Law

[5] Section 103(1) of the Title Conditions (Scotland) Act 2003, provides:-

“103. (1) The Lands Tribunal may, in determining an application made under this Part of this Act, make such order as to expenses as they think fit but shall have regard, in particular, to the extent to which the application, or the opposition to the application, is successful.”

This requires us in all cases (contrary to our practice prior to the passing of that Act in cases where benefited proprietors had acted reasonably, although they had been unsuccessful, in opposing applications) to apply the same principles as ordinary courts in civil cases. Basically, expenses ‘follow success’, on the principle that the unsuccessful party has caused expense to the successful party; but each case is considered in its particular circumstances, so that we retain some discretion, albeit against that background of principle.

Expenses as between applicants and first respondents

[6] As indicated above, there has apparently, during the currency of this second application, no longer been any issue as to the height of the proposed house or indeed any other aspect of the actual revised proposal for the house itself. The issue raised by the second respondents was stated thus in their representations of 7 October 2008 opposing this application:-

“ … the problem relates to our clients insisting that as part of the Agreement and the related restriction on the height of the house, there should be restrictions on the height of other structures on the burdened property, including conifer trees planted relatively recently by Mr and Mrs Faeley and intended to obstruct the views from Mr and Mrs Clark’s property.”

[7] On one view, this application related only to a building restriction and, there being no burden in relation to growing trees, that matter was simply irrelevant. That indeed was the position stated by the applicants in response to those representations. However, the matter is not as simple as that. The respondents claimed something of a history of conduct by the applicant Mr Faeley, amounting to intimidating and threatening behaviour in relation to growing trees, in connection with his attempts to win the day in this protracted dispute. The respondents went so far as to make averments based on the principle, aemulationi vicini. The Tribunal rejected a motion by the applicants to dismiss such averments at debate. It was felt that the Tribunal’s jurisdiction being based on reasonableness, with the broad provision in Section 100(j), it was not possible to deal with this as a matter simply of legal relevancy. In that situation, we feel that we have to deal with the issue of expenses on the basis that there was a point of dispute between the parties and we must have regard to the extent of success of each. That said, we are conscious that we cannot know the full story of comings and goings, and attempts at agreement, on this issue and must do the best we can on the information available.

[8] Put shortly, the applicants have shown that the eventual settlement involved a condition about growing trees in exactly the terms proposed by them in a final draft agreement in April 2008, some months before the present application was raised. Against that, when the matter was raised in the respondents’ representations, the applicants did not repeat their position but rather sought an order simply varying the terms of the building restriction. In other words, agreement not having been reached, they reverted to the position that it would be reasonable to grant their application leaving them free to grow trees to whatever height they liked, a position which they eventually gave up. Again, however, in adjustments made in December 2008, while apparently maintaining their basic position, the applicants did indicate that “they were and remain willing to agree not to allow anything to grow to a height of more than two metres”, essentially the position eventually agreed after a succession of delays for which it does not seem possible to blame either party.

[9] At a more general level, the respondents claim that the application was unnecessary in that “any attempt at reasonable negotiations before it was made would have resulted in what has been achieved.” They also refer to the applicants’ “intransigent and belligerent conduct”. There were certainly hints during the hearing of the first application of some intransigence and lack of co-operation, by Mr Faeley, contrasted with Mr Clark’s transparently reasonable approach to the whole matter. The matter was not relevant to our decision to award expenses against the applicants in the first proceedings, there being no reason to look beyond the fact that that application was unsuccessful; we do not know the whole story; and we are in any event now considering the second application, not the first. There is, however, one piece of conduct by Mr Faeley, since the decision in the first application, which we feel we cannot ignore. On 26 July 2006, shortly after the decision in the first application was given, Mr Faeley e-mailed Mr Clark, including the following:-

“ … I have already sourced some 20 X 30’ Leylandi trees which I intend to have planted quite soon along the perimeter wall of your garden should you decided (sic) to be uncooperative, this is a one time never to be repeated offer … Your call David”

Then on 2 August 2006, after apparently having called personally on Mr Clark who told him that he was unwell and asked that contact should be through his solicitors, Mr Faeley e-mailed again, this time including:-

“it now looks that we have reached a stalemate where by I build a house some 3 meters less than I had planned and you loses a view because of the imminent planting of my Leylandi trees along our perimeter wall, not the outcome I had hoped for but the route which you have chosen.”

We strongly disapprove of this way of approaching the matter at that time.

[10] We appreciate that this represents only one small part of the communications, some considerable time before the commencement of the second application. However, we feel that we should mark our disapproval of this way of approaching this application. Having approached matters in this way at that time, the applicants should not be at all surprised that it did not prove possible to reach agreement. They may in fact have brought the expense of the application upon themselves. We shall refuse their application for expenses.

[11] We must also, however, we think, reflect the fact that there was in fact an offer in the terms eventually agreed, in April 2008.

[12] In all the circumstances as between these parties, and in the exercise of our discretion in the matter, we find no expenses due to or by either party.

Expenses as between applicants and second respondent

[13] The second respondent did not intimate any opposition to the second application on its merits, but sought an award of compensation. In our Opinion of 19 November 2010, we gave reasons for refusing that claim. The applicants have accordingly succeeded in each part of their application. There is no suggestion of any criticism of the conduct of this part of the proceedings by either of these parties.

[14] We can see no basis for an award of expenses in relation to the merits of the application in favour of either party. The second application became necessary following on the refusal of the first and the applicants’ wish to pursue revised proposals. It does not follow from the fact that the Tribunal would, as against the second respondent, have allowed the first application that she was in any way responsible for the applicants’ need to make a second application, and she never indicated any opposition on the merits of the second application. Nor can we see any justification for awarding expenses on the merits in her favour: apart from anything else, she cannot have incurred any expense to speak of, in this application, in relation to the merits.

[15] In relation to her unsuccessful compensation claim, this respondent submits that it was proper and reasonable to maintain it; it was not vexatious or frivolous; it was pursued in a way calculated to cause least expense to the parties and the Tribunal; and there was no delay in its presentation. We can agree with all of these assertions, but the fact remains that the claim was unsuccessful. Prima facie, the applicants are clearly entitled to their expenses.

[16] There is, however, another matter to be considered. The respondents argue that any expenses incurred by the applicants in relation to the compensation claim are greatly exceeded by expenses incurred by the second respondents in respect of the first application, arising out of the applicants’ alleged failure to supply essential information in relation to their proposed house. It will be recalled that consideration of expenses as between these parties in relation to the first application had been deferred until such time as the compensation claim was dealt with. It does therefore appear appropriate to us to consider whether we should give any effect to this argument, which was advanced by these respondents in support of their position on expenses last time, even although it does not really relate to the expenses of this application.

[17] Having considered this, however, and having been able to remind ourselves of the points made during the currency of the previous application, we find that there is nothing in it. Just to complicate matters, the solicitors for these respondents were also representing the owners of another property, Broomcraig (which, in the end, was agreed not to be a benefited property). In November 2005 representations were submitted, in quite similar terms, on behalf of the Broomcraig owners as well as the second respondents. Both representations referred to information previously supplied by the applicants’ solicitors but complained of the omission of a number of details about the applicants’ proposals. In our view, reference to the information previously supplied by the applicants amply justified the applicants’ assertion that their proposed property, being out of sight of the second respondent’s property, would not impact on her view in any way. The Tribunal disposed of the merits, as between the applicants and the second respondent, very shortly, it being quite clear that the second respondent’s interests were not at all threatened (apart from her possible claim to compensation on the basis that she and her late husband had sold the site to the applicants). The information supplied, before these respondents opposed the first application, should have made that clear. We can find no justification for the claim that the second respondent was caused expense by the applicants’ delay in providing necessary information about their proposal.

[18] There is thus no reason why this should have any effect on the applicants’ entitlement to their expenses, in so far as related to the compensation claim. We have therefore awarded expenses, in favour of the applicants, against the second respondent, in so far as related to that respondent’s claim from compensation in this application, from the date of the representations advancing that claim in these proceedings, viz. 15 October 2008.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 7 July 2011

Neil M Tainsh – Clerk to the Tribunal