[1] The successful respondent seeks an award of expenses following the Tribunal’s refusal of an application for a variation of the route of a servitude right of access affecting part of the back garden of the applicants’ house and for a declaration that the servitude right did not include a right of vehicular use. We dealt with the substantive application by way of written submissions and a site inspection. Our decision, along with our reasoning was set out in our Opinion of 23 March 2010.
[2] Although the respondent initially sought a hearing in regard to the issue of expenses it was agreed by the parties that the application would be dealt with by way of written submissions only, in accordance with the Tribunal’s normal practice, and we have proceeded accordingly.
[3] We have decided in the circumstances of this case that there are no reasons for departing from the normal rule that expenses should follow success and accordingly award expenses to the respondent.
[4] The respondent considers that expenses should follow success. The respondent had acted in good faith throughout and his suggestion that a pend might be incorporated in the applicants’ plans was not considered appropriate by the applicants. The applicants had offered neither compromise nor compensation. The respondent had been forced into the proceedings but had acted reasonably by agreeing to the application being dealt with by way of written submissions and a site inspection by the Tribunal. He had also acted reasonably in applying for Legal Aid (which was ultimately granted) and had sought a deferral of the case for a decision by the Legal Aid Board. However, the Tribunal had refused this request. Accordingly, there was no undue delay in the Tribunal dealing with the application as the effective date of the Legal Aid Certificate was after completion of the substantive Tribunal procedure.
[5] The applicants submit that we should make no order for expenses. The Tribunal had found the applicants’ proposal to extend their house at the rear to be reasonable, demonstrated by their receipt of a planning permission and listed building consent from the local authority. The Tribunal accepted that the condition did impede the applicants’ enjoyment of their property. The applicants had tried to achieve a compromise but this had not proven possible. At all times they had acted in good faith. The factor of most influence in the Tribunal’s consideration of the matter was that an alternative vehicular access was not available. Compensation had not been offered by them but had not been specifically sought by the respondent, who had merely reserved his position.
[6] Section 103 of the Title Conditions (Scotland) Act 2003 requires us in determining any application for expenses to have regard “…in particular, to the extent to which the application, or any opposition to the application, is successful”.
[7] There is no doubt, and it does not seem to be disputed, that the applicants were not successful in this matter. We wholly accept that they acted reasonably and were quite entitled to make their application to us. However our decision in any application for expenses requires to be governed by section 103 and that means that we have to decide on the basis of success unless we are persuaded that a party acted unreasonably or there were circumstances which unreasonably increased the costs. Neither circumstance occurred here. In most cases before us applicants act reasonably and very often they have planning permission for the proposal which the title condition prohibits or restricts. Such applicants are at risk under the rules on expenses if their application is unsuccessful. They have caused the respondent to incur costs which he would not otherwise have required to incur and he is entitled to recover such reasonable costs. Accordingly, we are satisfied that, in this case, the respondent is entitled to his expenses, without modification.
[8] The accompanying Order awards the respondent his expenses in this application, the amount of which we hope will be able to be agreed between the parties. Should this not be the case, the matter will required to be determined by the Auditor of Campbeltown Sheriff Court.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 18 May 2010
Neil M Tainsh – Clerk to the Tribunal