OPINION

William Wilson and Mrs Heidi Wilson
v
Scottish Borders Housing Association Limited
(Compensation)

Introduction and Summary

[1] This is an application for discharge of title conditions in the form of building and use restrictions in a standard Deed of Conditions applicable to the applicants’ property within a housing estate. The applicants have planning permission to build a house on an area of extra ground conveyed to them when they purchased their upper flat and garden ground in exercise of their Right to Buy. The application is opposed only in relation to the respondents’ claim for compensation relying on Section 90(7)(b) of the Title Conditions (Scotland) Act 2003 (“the Act”). The circumstances are somewhat unusual in that it is reasonably clear that this plot of ground had not been within the applicants’ tenancy; the value on which the discounted purchase price was based apparently took no account of it; the concluded missives of sale did not include it; yet it came to be included in deed plans subsequently prepared and was accordingly conveyed to the applicants at no extra consideration. There is, however, no serious dispute that, without the title conditions preventing building, it would at the time of the applicants’ purchase have had a substantial value although there was then no planning consent – some £14,000 more than the value with the title conditions.

[2] The Tribunal has decided that in the particular circumstances, the statutory requirement that the condition produced an effect, at the time when it was created, in reducing the consideration paid for the burdened property has not been satisfied. The respondents are accordingly not entitled to compensation. The application will be granted and no award of compensation will be made.

The Title Conditions

[3] These are contained in a Deed of Conditions by Scottish Borders Housing Association Limited and noted in Entry 2 of the Burdens Section of the applicants’ registered title SEL3538. This provides inter alia:-

“THREE The ground within a plot shall, insofar as not occupied by buildings (including, for the avoidance of doubt, any existing garage, garden hut, greenhouse or other buildings or constructions including hard standing provided for use for car parking) be used as garden ground or as greens for bleaching and drying clothes, all in connection with the dwelling house and for no other purpose whatsoever …

“SEVEN No buildings or erections other than the said dwellinghouse and any other buildings or erections for which the written approval of the Association or the Association’s predecessors in title has been given at the date of entry stipulated in a Disposition of a particular Plot will be erected on a Plot and no external alterations of any kind made to the said buildings or erections without the prior written consent of the Association, which consent shall not be unreasonably withheld … ”

Procedure

[4] The respondents opposed this application only for the purpose of advancing a claim for compensation. At the hearing, the respondents were represented by Mr McIlvride, Advocate, instructed by Harper McLeod, solicitors, Glasgow, and the applicants by Mr Kilshaw, solicitor, of Cullen Kilshaw, Galashiels. Mr McIlvride called Janice Cambridge and Julia Mulloy, respectively former and present Chief Executive Officers of the respondents, and William Laidlaw MRICS, of Shepherds, Chartered Surveyors, Galashiels, to give oral evidence for the respondents. Mr Kilshaw called Edmund Novak, BSc, C.Eng, MICE, architectural designer, to give oral evidence for the applicants, who were not themselves present and did not give evidence. Both sides lodged documentary productions. The Tribunal did not in this case carry out any site inspection.

[5] In prior written submissions, the respondents had sought compensation, on the basis of Section 90(6) and (7)(b) of the Act, in the amount of the market value of the subjects with full planning permission, with an alternative submission on the basis of comparing the market value of the ground at the time of the conveyance, subject to the title condition and without planning consent (£1,000), with the market value then, without the title condition and also without planning consent (£15,000). At the hearing, Mr McIlvride advanced only this alternative submission.

The Facts

[6] On the basis of the oral and documentary evidence and parties’ submissions, we found the following facts established.

[7] 8 Marmion Road, Galashiels, is an upper flat in a ‘four-in-a-block’ unit in a former local authority housing estate. The applicants were tenants of 8 Marmion Road prior to exercising their right to buy in 2005/06. 8 Marmion Road shares the use of garden ground and a drying green with the ground floor flat and with neighbouring property. The subjects of this application comprise an undeveloped plot of amenity ground to the north. The subjects had been maintained by Scottish Borders Council (“SBC”) and latterly Scottish Borders Housing Association (“SBHA”), were fenced off and were not part of the applicants’ tenancy agreement. There was a notice on the fence banning ball games.

[8] In or about 2002 SBC sold the estate to SBHA.

[9] In 2005 the applicants submitted their request under the Right to Buy legislation to purchase the house at 8 Marmion Road. SBC continued to handle ‘right to buy’ transactions, now as agents for SBHA. The District Valuer advises SBC and SBHA in all such applications. He produced a simple report on 1 November 2005. It described the house and its accommodation without reference to garden ground. The market value was given as £47,000. The subjects were not included in this valuation. A formal offer of sale dated 8 December 2005 was issued by SBC on behalf of SBHA. The price, following a 54% sitting tenant discount, was £21,620. The property was described as “ALL and WHOLE that flatted dwellinghouse known as Number Eight Marmion Road, Galashiels with ground attached, … etc.” It did not include the subjects.

[10] A de plano acceptance on behalf of the applicants was made on 27 January 2006.

[11] No plan was attached to the District Valuer’s report nor to the formal offer of sale. This was common practice as not all offers of sale were taken up and there was a cost to the preparation of plans.

[12] On receipt of the formal acceptance Technical Services of SBC was instructed to produce a plan to be attached to the formal Disposition. The plan included the subjects. There were negotiations between the respective legal agents principally in regard to a small balcony and the external stairway leading to the subjects. At all times the subjects were included in the plan. The Disposition implementing the missives accordingly included the subjects. The applicants’ title is a registered title (SEL3538) which includes exclusive ownership of the subjects (which are shown tinted pink on the Title Plan).

[13] The title conditions are included in a standard Deed of Conditions executed by the respondents and imposed in any sales in the estate. There were no specific “clawback” arrangements.

[14] For some time after their purchase the applicants made no attempt to occupy the subjects. The respondents continued to maintain the land until the second applicant advised the landscaping contractors that it was now private land. In May 2008 the applicants appointed a Mr Novak, an architect, to act for them in securing planning consent for a new house on the land. Mr Novak was known personally to the applicants. He had previously been employed by the respondents. He was aware of the existence of the Deed of Conditions in all sales of former council houses. He had been surprised when advised by the applicants that the land had been included in their purchase. He had been aware that the land had previously been maintained by the respondents. The applicants told him that when they saw the land on the deed they had been ‘very surprised and chuffed’.

[15] Mr Novak suggested to the applicants that he should approach SBHA regarding the terms of the Deed of Conditions. He contacted both SBC and SBHA. He wrote to Mrs Cambridge of SBHA on 28 June 2008. The letter referred to a variation in the Deed of Condition being possibly required. A copy of the plan supplied by SBC was enclosed. No reply was received. He then went to the headquarters of SBHA and handed in a further copy at reception. He was asked to wait. Mrs Cambridge came to reception to see him. She said that she had e-mailed him a reply and said a further copy would be sent. No e-mail was received by Mr Novak. Mr Novak understood from what she said in this very brief conversation that SBHA would not object and ‘no valuation would be required’, i.e. SBHA would not be seeking any payment.

[16] Subsequently Mr Novak was instructed to draw up plans for a new house. His original design was for a one storey and attic house. The plans were circulated to all affected neighbours, including SBHA. The planners were not happy with the one storey and attic concept. They wanted 2 storeys to be in keeping with the adjoining houses. He drew up revised plans. Neighbours including SBHA were again notified. Only one objection was received but this was resolved. SBHA did not object. Full planning permission was granted on 5 May 2011. No material conditions were imposed. From 2005, the local authority, in accordance with their relevant powers placed a levy on all new residential development to assist in funding the proposed Borders Rail link and the provision of new schooling. A combined levy of £5,538 was imposed and paid by the applicants, who also incurred some legal expense and responsibility for Mr Novak’s costs.

[17] The market for house plots for development in this area softened noticeably between 2006 and 2012. Prices reduced significantly. The open market value of the land in May 2006, without the title condition but with planning consent, was around £50,000; in 2012, £25,000. Without a planning consent, and again without the title condition, the value in May 2006 was around £15,000; and with the title condition, around £1,000. Mortgage finance would be unlikely to be available for the purchase of such land without the benefit of planning consent.

[18] A feature of the estate is the number of open spaces incorporated in its design. Prior to transfer of the estate to SBHA, SBC had reviewed their ownership and excluded from sale any sites which they thought had development potential. The site to the north of 8 Marmion Road was not excluded. In 2003 SBHA produced a paper reviewing their policy on the open spaces they had acquired at this and other estates. This recognised that they had acquired a large amount of ancillary land for which they had 100% maintenance responsibility. All of these costs had to be met from the rents paid by the tenants on the estate. They were legally advised that they were unable to transfer any of these costs onto any purchasers of the houses. The adopted policy was to target divestment of ‘ownership/responsibility’ for as much of the ancillary land as possible. The policy was not intended to maximise the capital receipt for the land. 3 reasons were given:-

“ a) where there is a material “profit” on the sale, SBC has a claim to 95% of it, in terms of the Contract of Sale for SBC’s houses (sic).

b) the real financial benefit to SBHA will come from the reduced risks and management/maintenance costs;

c) in view of (b) above, the value placed on the land being sold should not act as a major disincentive to individuals interested in purchasing areas of ground.”

[19] The paper identified various types of land which would normally be appropriate for sale and those which would not. Included in the appropriate category was land adjacent to a house-owner for inclusion within their property. Land which should not normally be considered for sale was land which had the potential for new development. A procedure was set up whereby all enquiries to buy land resulted in a site inspection and a pro-forma report prepared identifying whether the land had development potential, in which case it was recommended not to be sold, or not, in which case the land could be sold. The policy was reviewed in 2006 but was continued unchanged. The policy was followed by the respondents, who refused a number of requests to purchase areas of ground on the basis that the land in question was deemed to have potential for development.

Authorities referred to

Manz v Butter’s Trs 1973 SLT (Lands Tr) 2
McVey v Glasgow Corporation 1973 SLT (Lands Tr) 15
Strathclyde Police Joint Board v Elderslie Estates LTS/LO/2000/42
Faeley v Doull LTS/TC/2008/40
Watt v Garden 2011 Housing Law Reports 79
Rankine on Property, 4th Ed’n

Parties’ Submissions

[20] Advancing the respondents’ claim for compensation of £14,000, Mr McIlvride submitted that it was not necessary for the respondents to have included an overage clause in the contract of sale, because they relied on the clear, unambiguous and agreed title condition to prevent further development. The purpose of the burden was to protect the interests of the respondents and their tenants and prevent building so that purchasers paid the correct value for future use. The subjects would not have been sold to the applicants at the consideration paid but for the imposition of the title condition. The respondents did not gift the garden to the applicants for no consideration. The condition applied to all the ground conveyed, so that the fact that the respondents did not know that they were including this ground was immaterial. The evidence showed that there would be no question of selling for development. They would not have agreed to sell the property for nil value if there was any anticipation of the garden ground being used for building. That was why the burden was imposed. The evidence supported the difference in price of £14,000. It was ‘just’ to award that sum: the applicants had acquired the ground only a few years ago, knowing about the express stipulation that it could not be built on. In relation to the suggestion that the applicants had incurred expense on the faith of Mr Novak’s conversation with Mrs Cambridge, the evidence at its highest would not entitle the applicants reasonably to believe that she was unequivocally binding the respondents not to seek any payment. In any event, the amount of the payments made by the applicants was not vouched. Further, at 2006 values, paying £14,000 in addition to their expenditure would still have secured a handsome profit: no account could be taken of the subsequent reduction in value, both parties being at risk of the market moving. Any criticism of the respondents’ systems should not be factored in, because they had thought they were protected by the condition. Whatever view on culpability was taken, that had no effect on the values and should not therefore affect this award.

[21] In their written submissions, the applicants pointed out that this ground had never been tenanted or occupied by them and submitted that it was included in the transaction at the instance of the respondents. As far as the applicants were concerned, it was gifted to them for no consideration. The burdens imposed were in the standard format used in the sale of houses by the respondents. Mr Kilshaw concentrated his argument on the question whether Section 90(7)(b) was satisfied on the submission that, on the evidence, the ground had not been sold under the Right to Buy legislation as part of the garden; was not ancillary ground added because the respondents had no further use for it; but had simply been included in error. On that basis, the relevant date must be the date of the DV’s valuation without taking any account of this ground. It therefore could not be the case that the value of the ground, and the price paid, was reduced. The price had not been the subject of negotiation, but fixed by statute, and the open market value so fixed could not have involved any discounting to reflect the effect of the condition on this ground. Therefore, on the evidence, the respondents’ position was unfounded.

[22] Mr Kilshaw also addressed the evidential issue as to what was said in the exchange between Mr Novak and Mrs Cambridge. The clear impression had been given that the application for waiver or discharge would not trigger any requirement to pay, and that had been reported to the applicants. It would be manifestly unjust to require the applicants to pay when the respondents had by inference effectively waived their right. Further, a sum lower than the ‘hope value’ as at May 2006 would be fair, when the price was in fact fixed in September 2005. In the light of the entitlement under the Right to Buy, the maximum should be 46% of any reduction in the price. Again, in arriving at a ‘just’ sum, account should be taken of the 50% reduction in value. The applicants would still be carrying the risk and uncertainty as to the price achievable. Reference should also be made to the reason why the payment was being sought: this had nothing to do with amenity, in which the respondents, who simply wanted to extract money in exchange for a waiver, had no bona fide interest. Reference was made to Watt v Garden, Rankine at page 478, and Strathclyde Joint Police Board v Elderslie Estates. The applicants had simply been presented with a set of conditions.

Tribunal’s Consideration

[23] Although the respondents’ agreement to this application was said to be conditional on their claim for compensation, we are clear that we can be satisfied that the application for discharge of these title conditions is reasonable. There is no opposition to discharge as opposed to variation. The application will be granted. That leaves for consideration the difficult issue, in the circumstances of this case, of compensation.

[24] We should start by explaining our view of certain evidence.

[25] Firstly, while there are gaps in the evidence, in our view the subjects were probably included erroneously in the conveyance to the applicants. Proper application of the respondents’ policy in relation to sales of areas of open ground in this estate would apparently have precluded sale to the applicants, as the evidence suggests that the subjects should have been seen as having development potential. We have found as a fact that the subjects were not included in the applicants’ tenancy, because although there was no formal evidence as to the extent of the tenancy it was clear that the subjects were simply not within the garden ground of the block of flats and were part of the open ground of the estate. So the applicants had no right to buy this land. It was not in our view included in the missives of sale. The very high probability is – and we have found as a fact - that the DV did not include them in his valuation. What is a bit less clear – and simply not covered by the evidence – is whether notwithstanding these things anyone with authority on the respondents’ side realised the position before completing the transaction and so must be taken to have agreed to add this ground in. That seems unlikely, but even if it were the case it would still appear, in the absence of any evidence that it was the subject of any proper consideration by the respondents, an erroneous decision. In any event, the applicants had not asked for this ground. However, the applicants’ registered title to the subjects stands.

[26] Secondly, we did hear evidence from both Mr Novak and Mrs Cambridge about the alleged conversation between them in 2008. Both appeared to us to be honest witnesses. Mrs Cambridge was frank that she could not remember the conversation but acknowledged that she did from time to time come out of her office and speak to people in this way. We are satisfied that there was some brief conversation. We are, however, clear, agreeing with Mr McIlvride’s submission on this, that Mr Novak’s account fell short of justifying the belief that the respondents were agreeing to the plan to build on the subjects and not seeking any payment for waiver of the title conditions. The words which he says Mrs Cambridge used appear to us by no means clear of doubt and, perhaps more significantly, there was nothing in writing. The respondents may well have failed to reply but in that case the matter should have been pursued, whether by Mr Novak or by the applicants’ solicitors, much sooner than in fact happened if any case of, in effect, waiver was to be made out.

[27] Thirdly, we should just make clear that, although this was not formally admitted, we accept Messrs Shepherds’ valuations, in particular of the subjects with and without the title condition, and without planning permission, as at May 2006. Mr Kilshaw suggested that the relevant date might have been earlier, but it is perhaps sufficient to indicate that there was no evidence as to what difference that would have made to the figures.

[28] The particular, somewhat unusual circumstances, of this case make application of Section 90(7)(b) of the Act difficult. Although the respondents apparently still own neighbouring property, there is no question of the discharge of these conditions causing them any loss or disadvantage as such neighbouring owners. However, we have found that the open market value of the plot of ground which forms the subjects of this application, at the date of sale, when the conditions were applied to the subjects, would have been £15,000 in the absence of the condition but with the condition was £1,000. The respondents, in a sense, ‘lost’ £14,000 (or perhaps £15,000).

[29] Section 90(6) enables the Tribunal to award as compensation:-

“such sum as the Tribunal may think it just to award under one, but not both, of the heads mentioned in section 90(7), including:-

“(7)(b) a sum to make up for any effect which the title condition produced, at the time when it was created, in reducing the consideration then paid or made payable for the burdened property.”

Is that requirement satisfied in the particular circumstances of this case?

[30] The facts which we have found present an unusual combination of circumstances including the following:-

(i) The transaction proceeded as an exercise of the statutory right to buy, which does not involve any negotiation of the price;

(ii) At the time when the price was fixed, and when missives were concluded, it was not understood that the subjects (which could not have been included in their tenancy and which the applicants therefore in fact had no right to buy) were even included in the transaction, and they were subsequently included in the conveyance to the applicants in error;

(iii) The conditions were not consciously created with the subjects in mind, but were simply standard amenity burdens within a standard deed of conditions applicable to sales under the right to buy;

(iv) We can infer from the evidence as to the sellers’ policy that if they had set out to sell or transfer this additional ground to the applicants as owners of the adjoining property, it would have been on the basis that the ground had no development prospect and conditions to the same effect would have been imposed, i.e. they would not have sold it at a price reflecting development value.

[31] On a direct approach – looking at what actually happened – we do not see how the statutory test can be said to be met in this case. As there was no explicit consideration of this site, there cannot have been any consideration of its development potential. The respondents’ ‘loss’ of £14,000 (or £15,000) was the result of the erroneous inclusion of this ground and not the title condition. In the particular circumstances, the price which the applicants paid would have been the same whether the conditions were incorporated in the titles or not. No thought was given at all to prohibiting building on the subjects. This is the basis of Mr Kilshaw’s submission on the applicant’s behalf. The respondents, on this argument, are ignoring the fact that, when the price was arrived at, the building prohibition on this land cannot have had any effect on the price.

[32] However, it seems arguable, with a degree of support from the admittedly very few decisions which the Tribunal has previously given on this type of compensation, that Section 90(7)(b) does not require actual proof that, at the time of the transaction in question, a higher price for the property without the condition was reduced because the condition was added. The provision, it may be said, cannot have been intended to exclude cases where the original transaction was simply on the basis that, for example, there would be no building, and the value at the time, without the condition, is only subsequently considered and shown to have been higher. Watt v Garden is an example of such a case, where it could be inferred that the price would have been higher without such restriction even although a transaction on that basis was not considered at the time.

[33] In other words, although the language of the provision appears factual (“produced”) as opposed to conditional (“would have produced”), some hypothesising may be permissible in showing that there was an effect.

[34] Further, there might seem to be no reason why, with the condition imposed, any positive price should have been paid originally. The subjects might be a small strip of land with the “purchaser” being required only to meet the “seller’s” expenses – if the land had a development value at the time, the consideration which would have been payable was reduced, because of the condition, to nil. The fact that the applicants in this case paid nothing for the site, although, with the condition, it was worth £1,000, would not appear to rule out an award. There would also seem to be no reason why there needs to have been any consideration of ‘clawback’ at the time of the original transaction: Section 90(7)(b), if its terms are satisfied, in effect provides that. Nor is it material whether the purpose of the title condition was any such financial purpose or simply, as apparently here, an amenity purpose.

[35] So a deeper view may be required. However, even adopting that approach, it may be difficult to satisfy the requirement where there is no evidence that at the time of the transaction anyone considered any difference in valuation or price. This requires a more complicated analysis in the circumstances of this case, and it seems to us that the respondents in this particular case still face considerable difficulty.

[36] The focus of this statutory test must be the actual transaction, i.e. the applicants’ purchase in 2005/6. The reference to “consideration then paid or made payable for the burdened property” must, we think, be a reference to the actual transaction. In this case, that was a purchase of the whole property and not only of the subjects. Although it is clear that the subjects without the condition would have been worth £14,000 more than with it, there is no evidence that the open market value of the property acquired by the applicants, i.e. the house, its garden ground and the subjects, would have been worth more than the value of £47,000 placed on the house and garden ground. Would a purchaser of the whole property have paid £61,000 or £62,000 for the whole property with the subjects clear of the building prohibition?

[37] The problem goes further than that. This transaction was not, and could not have been, an open market transaction, rather a transaction with only one possible purchaser, viz. the applicants as secure tenants of the house, at the discounted price of £21,620. In referring to the effect which the condition produced, Section 90(7)(b) therefore appears to us to envisage a situation in which the housing association were willing, in the sale to the applicants, to remove the conditions. What has to be considered is a hypothetical removal of the condition in this transaction, rather than a different hypothetical transaction of sale of the subjects, i.e. this plot, in the open market. Even this requires acceptance that there was an intention to include the subjects in the sale to the applicants, but we should perhaps make that assumption, since it was what actually happened in the end even though the respondents’ intention to do so is not at all clear.

[38] Would persons in the position of the applicants have paid more than £21,620, the price at which they were entitled to buy the flat and its garden ground? Would they have paid an additional £14,000 or £15,000 (there being no entitlement to discount on the price of property, i.e. the subjects, which they had no statutory right to buy) if the subjects were not subject to the building prohibition? If not, as there is no other purchaser in the market, there is no basis for concluding that the condition had the effect of reducing the price paid. In our opinion, this is the question which we would have to ask, even on a more liberal construction of the statutory provision, in the particular circumstances of this case, in order to decide whether “the title condition produced” any effect in reducing the price. Put another way, the applicants must in our view be seen as special purchasers, entitled to buy the house and garden at the substantially discounted price. Can it be said that in this restricted market the condition produced a reduction of the value for the subjects?

[39] To an extent, a case such as Watt v Garden also involves a special purchaser, but we think that the circumstances of that case may be differentiated: an owner of some land who buys an adjoining strip without any building restriction may have to pay a price reflecting development value, but that is not this case.

[40] The applicants, the only possible purchasers in this transaction, knew, at least when the transaction was being completed, that they were getting the extra land, subject to the conditions, for nothing. That does not show that, without the condition, the ground would have had this additional value in the context of this transaction. The applicants did, some two years later, form the intention to build on the subjects, which would of course have to be on the basis that they were not prohibited from doing so by the conditions. Can we infer that in 2006 the subjects which the applicants bought, with the burden of this title condition lifted from this plot, would have been worth £14,000 more to them than the price of £21,620 which they paid? We think not. They went through the ‘right to buy’ transaction and, to their surprise, found themselves given this extra ground, to which they had no entitlement, at no extra cost. Purchase of, in effect, a plot of building ground without planning permission, at its value on that basis, is a different matter.

[41] In these circumstances, without holding it against this claim that the respondents would never have sold the subjects on this hypothetical basis (or indeed at all had they known what was happening), we could still not hold it established that the imposition of these conditions preventing building development had the effect of reducing the purchase price paid by the applicants at the time when the title condition was created.

[42] We should add that if we had accepted that the requirement in Section 90(7)(b) was satisfied, we would have considered it ‘just’ to award compensation of £14,000. We agree with the respondents’ submissions in that regard. Again, the particular circumstances are unusual. As it seems to us, particularly when it can be seen that the value of the subjects has been enhanced by the grant of planning permission, the applicants have received something in the nature of a windfall. Admittedly, as matters stand with the very considerable reduction in the value as a result of the recession, their gain has been very considerably reduced: the compensation sought, plus the expenditure which they have incurred, would not be much less than the present value of the subjects with planning permission. However, they have still acquired at no cost a plot which now has planning permission for a house. Consideration of the conduct of the respective parties in the matter does not seem to us to alter that position. We could not accept the inference which Mr Kilshaw invited us to make that the applicants, neither of whom gave evidence, reasonably concluded that they were simply being given this extra piece of ground. Rather, we would infer from the evidence that they did nothing to draw the respondents’ attention at the time to what must have seemed to them to be an error in the title plan. The idea that the respondents ‘gifted’ this ground to the applicants finds no support in evidence. Further, the applicants did not, through Mr Novak or anyone else, obtain a clear record of what they understood to be the respondents’ willingness to waive the condition without payment. On the other hand, the respondents, as well as (presumably) not noticing the error at the time, may have contributed slightly to Mr Novak’s understanding of the position and failed, for some considerable period of time, to make their position clear. None of this, however, seems to us to alter the basic position that if we had been able to be satisfied that the condition had had the effect of reducing the price paid by the applicants, it must follow that they are now obtaining what they would have obtained in 2006 only on paying the appropriate extra consideration. Further, just as we could not, in making such an award, take account of inflation, we do not think that there would be any justification for taking account of the reduction in values which is evident in this case. We would also not have reflected the statutory discount, which would not have applied to any additional consideration payable for this site, which was not within the applicants’ tenancy. The applicants’ other submissions on the fairness of making an award seemed to us to carry no weight.

[43] However, for the reasons given above, we refuse this claim of compensation under section 90(7)(b) of the Act. The Tribunal will now make an order discharging the title conditions in so far as affecting the subjects. If any issue as to expenses arises, this can be disposed of on the basis of written submissions in accordance with the Tribunal’s normal practice.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 13 May 2013

Neil M Tainsh – Clerk to the Tribunal