OPINION

Primrose Young v Mark Markey and Another
(Compensation; Expenses)

Introduction and Summary

[1] In this application under Section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”), as our Note of 25 October 2013 records, the respondents agreed to discharge of a servitude right of vehicular and pedestrian access (and certain other title conditions), reserving a claim for compensation under Section 90(6) and (7) in relation to the discharge of that servitude. This claim for compensation has been the subject of a further hearing, followed by the Tribunal’s site inspection. The expenses of the proceedings have also been considered.

[2] In summary, the Tribunal has decided as follows:-

(i) the respondents are entitled to compensation amounting to £2730;

(ii) the applicant is entitled to the expenses of the application, on the ‘party and party’ basis, from the date of intimation of the respondents’ Answers up to and including 22 October 2013;

(iii) the expenses of the application from 23 October 2013, in so far as related to the claim for compensation, are meantime reserved; and

(iv) there will be no expenses due to or by either party in so far as related to the hearing on 19 December 2013 of their respective motions for expenses.

[3] Final procedure in relation to the award of compensation and the Tribunal’s Order discharging the title conditions is as set out in Para [56] below.

Procedure

[4] The issues of compensation and expenses were considered at an oral hearing on 19 December 2013. The applicant was represented by Mr Archibald, Solicitor, of Shepherd & Wedderburn, Edinburgh. The respondents were represented by Mr Carlin, Solicitor, of Friels, Uddingston. The respondent Mr Markey and Kenneth Hill, a health and safety consultant with HSE Solutions Ltd, and Alex Young, husband of the applicant, gave oral evidence in relation to the issue of compensation. Parties also lodged documentary productions and written submissions. The Tribunal carried out an unaccompanied site inspection.

Authorities referred to:-

British Railways Board v Ross and Cromarty CC 1974 SC 27
George Wimpey East Scotland Limited v Fleming & Ors, LTS/LO/2004/19, 5.5.2005
West Coast Property Developments Limited v Clarke & Ors, LTS/TC/2005/21, 6.10.2006
McKie v Scottish Ministers 2006 SC 528
Douglas Cassidy & Anr v Hugh McAdam & Ors, LTS/TC/2008/33, 21.1.2009
G v A, LTS/TC/2009/13, 10.2.2010
Cope & Ors v X, LTS/TC/2012/02, 6.6.2013
McNab v Smith, LTS/TC/2011/24, 7.12.2012
Bruce Smith & Anr v Martin Alan Properties Limited, LTS/TC/2012/14, 12.7.2013
Paul Franklin & Anr v David Lawson, LTS/TC/2012/23, 15.7.2013

Compensation: the facts summarised

[5] The applicant owns 3 Eastwoodmains Road, Giffnock, Glasgow, a substantial detached villa apparently built in the early years of the nineteenth century, and resides there with her husband. Like the neighbouring property at 5 Eastwoodmains Road, the applicant’s property formerly had large garden grounds. The eastmost portion of the grounds, including the former coach house, was sold in 1993, to become No 3A. The purchasers were granted a servitude right of access enabling them to enjoy shared vehicle and pedestrian access over the eastmost part of the original driveway of No 3, this being at that time the only access to No 3A from the road.

[6] The applicant purchased No 3 in around 2007. The respondents purchased No 3A in around 2008. The respondents have extensively redeveloped their property, in particular erecting a new dwellinghouse in place of the former coach house. They also purchased an area of adjoining land which was formerly the westmost part of the garden grounds of No 5. They used part of this land as a substantial addition to the grounds of No 3A. In particular, they formed a new driveway with a new entrance gate on the east side of their property. The garden grounds of No 3A were extensively landscaped. A monoblocked driveway extends up from the new gate to the front of the new house and a short distance beyond, where it presently links with the shared drive of No 3. In a statement supporting one of the respondents’ planning applications, reference was made to removing the need to share the existing driveway and to the proposal alleviating a potential problem from shared driveways. The applicant’s solicitors intimated her request for a discharge of the access right by letter dated 10 January 2013. Parties have a separate ongoing boundary dispute involving prolonged sheriff court proceedings, but the present application does not involve any such issues.

[7] There is presently no gate or barrier between the respondents’ property and the shared portion of the applicant’s driveway. The present shared driveway is gravelled, with no separate footpath. There was formerly a gate at the exit from that driveway into the road, but this was removed by the applicant. Eastwoodmains Road is a busy single carriageway urban road.

[8] The new vehicle entrance to No 3A has a metal framed wooden gate operated electronically from within No 3A and also by personal key fobs operated from within their cars. Although it has a camera entryphone and could be used by pedestrians calling at the house, it was not designed as a pedestrian access and lacks certain safety features which best standards would require for pedestrian access. It would represent a safety hazard to unsupervised young children inside the gate, especially when operated by the driver of a car opening the gate to enter the drive, as injury could be caused in a number of ways. This entrance has occasionally been used by pedestrians. For example the respondent Mr Markey uses it to take a refuse bin out to the street. However, pedestrian access to No 3A is at present normally taken by exercising the access right over No 3’s driveway. Deliveries to No 3A are generally made using that driveway. The entrance to the house is on this west side. A postbox for No 3A is situated close to the boundary with No 3, at the end of the shared driveway. The respondents keep the electric gate closed throughout the day. Other nearby gates, electric or manual, in the street are mostly left open during the day.

[8] The respondents, having consented to discharge of the access right (under reservation of their claim for compensation), and there being presently no other entrance apart from the electric gate which they do not normally use for pedestrian access, have obtained estimates for proposed works involving the creation of a new pedestrian gateway and footpath leading towards the house, together with consequential landscaping alterations. The new gate would be close to the boundary with No 3. The footpath would be routed around and following the shape of a circular lawn and putting green which they have developed in their front garden. A portion of the monoblocking leading to the start of the shared access would be removed and replaced partly by a new lawn and partly by sandstone flags matching an area of flagging at the side of the house. The respondents also propose installing a Video Entry System upgrade, apparently a new system incorporating a pedestrian gate entry panel and fob entry vehicular panel. The estimated cost of these works is £15,975.06. The respondents incurred a cost of £7,675.32 in respect of the installation of monoblocking which would now be removed.

[9] The applicant has obtained estimates for a simpler pedestrian gateway and path using and widening an existing monoblock path beside the hedge which separates the driveway within No 3 from the garden of No 3A. That would lead directly to the area at the front of the house at No 3A. These works were costed at £1480 (creation of new single access gateway), £1250 (linking monoblocking) and £383 (pedestrian gate).

[10] There was no evidence of any diminution in the value of the respondents’ property in consequence of the discharge.

Submissions: Compensation

[11] The respondents’ compensation claim is stated at £23,650.38, i.e. the total costs of their proposed works plus the amount of the ‘abortive’ costs installing monoblocking.

[12] It was submitted on the respondents’ behalf that they had enjoyed the use of the vehicular and pedestrian access over the shared driveway. Although they had created the additional access, this was almost entirely confined to vehicular access. Pedestrian access should be from the west side of their property which afforded the most pleasing elevation aspect. They had not foreseen removal of the shared access – if they had known about that, they would have considered the merits of different house designs. This would also have prevented costly expenditure on abortive hard landscaping. They had conceded the discharge after considering the position about security, the applicants having removed the original gate without consultation so that the respondents’ property was not securely gated or fenced. They had two small children who had regular friends visiting and the property was not secure to the very busy road and was accessible to strangers. They intended to secure their property with a wall. There had also been some confrontation with the applicant’s husband when a van delivering to their house had been parked in the shared driveway and when another vehicle had driven beyond the shared access: the respondents wished to eliminate such incidents. The current operating controls of the electric gate were not best suited for pedestrian access. The main concern was the safety of children. The respondents had consulted planners about a new pedestrian access from the street. The relevant costs had been provided. The original electric gate had cost £11,520 (not part of claim). The respondents would not have monoblocked the full area had they known of the application to withdraw the access right. They had decided to remove the additional monoblocking and replace it with grass to create a clearly defined pedestrian access to the doors of the house, complementing the existing soft and hard landscaping. They had taken professional advice as to how this should look. There were questions about the adequacy of the applicant’s proposed alternative. The electric gates would require more than minor adjustment for use for pedestrian access. There had not been as much attention to detail in the planning submission as there should have been.

[13] The applicant submitted that the respondents had not suffered any substantial loss or disadvantage in consequence of the discharge; alternatively, that they had not proved such a loss; alternatively, in the event that the Tribunal was persuaded that some award of compensation should be made, the estimates provided by the applicant produced a more reasonable solution on the basis of a more limited scope of work at costs totalling £3,211.

[14] It was first submitted that the discharge would not result in any ‘substantial loss or disadvantage’. The respondents had started with a combined vehicle and pedestrian access and that remained the position. Any loss of pedestrian access resulted from the manner in which the respondents chose to operate the new gate. Applying the decision in George Wimpey East Scotland Limited, any such loss was de minimis, causing only minor and occasional inconvenience - c.f also McNab v Smith. If anything, the respondents were now in a better position, having their own exclusive access.

[15] Alternatively, the primary basis for considering a claim of compensation was the negative effect of discharge on capital value - c.f. G v A. No such evidence had been provided.

[16] Alternatively, in the event that compensation should be awarded on the basis of cost-based options, there was a risk that such an award would result in substantial betterment. There was no indication that such expenditure would increase the value of the respondents’ property, so an award of the whole costs claimed would enrich the respondents by a figure bearing no relationship to the diminution in the value of their property as a consequence of the discharge. The applicant had provided cost estimates totalling £3,211 for a more reasonable solution, although an award in that amount would result in a windfall benefit, compared to the position from which the respondents started, as they would then have their existing “new” access, which they chose to use primarily for vehicular access but which was perfectly useable also for pedestrian access, as well as a bespoke pedestrian access. The respondents had ended up back where they started. It was their choice to create a new access. Difficulties with the electric gate were of their own creation.

Tribunal’s Consideration: Compensation

[17] Although compensation under Section 90(7)(a) of the Act (‘any substantial loss or disadvantage suffered … in consequence of the discharge’) is more normally based on diminution in capital value, the Tribunal does occasionally recognise that it may be appropriate as well as competent to make an award based on the cost of providing a reasonable alternative to the right lost. This is an alternative way of assessing an amount to compensate for a substantial loss or disadvantage: if, on a reasonable view, a property owner is having to incur the cost of replacing a permanent access right which is being removed on the basis of the Tribunal’s jurisdiction, it may be ‘just’ to award compensation. This can be the position even although the discharge has no effect on the capital value of the property losing the right, as was clearly demonstrated in the particular circumstances of McNab v Smith and as may very well be the position in this case. The provision of the reasonable alternative might also not have any effect on the capital value. Each case will depend on its own circumstances. We would particularly reject comparison of this case with George Wimpey East Scotland, the issue in which does not appear to us in any way comparable. We should, however, not forget the requirement to show substantial loss or disadvantage. Further, any such award should not exceed the cost of providing a reasonable alternative, as otherwise it will be betterment which it would not be just to award.

[18] In the present case, we note first that there is no claim in relation to the loss of vehicular access. The respondents apparently accept that the loss of what has become a second vehicular access does not cause them any substantial loss or disadvantage. Their claim relates to the loss of the pedestrian access, which they say was a substantial benefit to them despite their development of a new access which could possibly be used for pedestrians.

[19] Our award in this case is based on accepting that the respondents are losing the advantage of pedestrian access over the driveway of No 3 and should be compensated in the cost of providing a reasonable alternative.

[20] Although the applicant has been able to point to some pedestrian use of the electric gate, we do not think that it was seriously disputed that the respondents have normally been using the shared driveway for pedestrian access. We have therefore gone on to consider whether it was reasonable for them to do so or whether, following the creation of another entrance gate, this was simply a matter of their choice because they could perfectly well use the electric gate for pedestrians.

[21] We accept Mr Hill’s evidence that there is a child safety issue with electric gates, and in particular with these electric gates which appear not to have been designed particularly for pedestrian use. We do not, however, regard this as a particularly strong factor in this dispute because it seems to us that that risk is already present: very young children playing unsupervised in the vicinity of these gates might already be at risk if the gates are operated from outside. In any event, the street outside is a busy through route from which very young children should be protected and are not protected under the existing access arrangements, so we do not consider this a material factor in this case.

[22] That leaves, however, the more general issue as to whether the discharge results in a reasonable need for a new pedestrian gate and access route. The applicant argues that this need only arises because of the respondents’ choice to instal such electric gates and use them only for vehicles. To that the applicants add that the respondents can be seen to have envisaged removal of the shared access because they referred to that possibility in at least one planning application. It was also argued that the respondents could either adapt the electric gate to leave it partially open for pedestrians or simply leave it open, at least during the day. We have some sympathy with these points, but the fact remains that the respondents, when they developed the new access in the way they did, had the benefit of the permanent access right over No 3’s drive. It is not suggested that the respondents were aware of the applicant’s wish to discharge this servitude before they installed the electric gate.

[23] The question here is not whether the electric gates, with separate pedestrian access, were reasonably required as a result of the discharge. Rather, it is whether, having regard to the way in which they have developed their property, the respondents, on losing the shared access, now reasonably require a new pedestrian access. It does not seem to us possible to categorise the respondents’ present use of the electric gate for vehicles only, with pedestrians continuing to use the shared driveway, as unreasonable. In our view, the loss of the access right makes a new pedestrian access reasonably necessary.

[23] We conclude that there is a substantial disadvantage in the loss of the pedestrian access and this is not de minimis. The respondents should be compensated in the reasonable cost of replacement of this facility.

[24] We should mention that we have given no weight to the respondents’ argument based on the aesthetic attraction of pedestrian approach from the west side. Although the main entrance to the house is on the west side, making the walk from the new gateway slightly longer, we see no aesthetic distinction between different sides of the respondents’ garden. Any slight preference to approach from one side would not in our view add anything of weight to the claim of loss or disadvantage.

[25] There is, however, another factor to be borne in mind, which is that it did appear that the electric gate could almost certainly, at some cost, be adapted to bring it to the standard required for regular pedestrian use. If the reasonable cost of a new pedestrian access far outweighed the cost of such adaptation, that might alter the balance of reasonableness. The extent of adaptation required was not fully explored, but it clearly went some way beyond simply altering controls and settings. We have kept this in mind when considering the amount of the respondents’ claim.

[26] In our opinion, agreeing with the applicant, the respondents’ claim far exceeds the reasonable cost of replacement of the pedestrian access which is being removed. To compensate for loss of the existing facility of walking up a gravel drive, the respondents do require to open a new pedestrian gateway, but they do not in our view require anything more than a simple pedestrian route to reach the point reached by use of the shared access. The applicant’s costings for a gateway and linking monoblock path appear to us sufficient to provide that, whether or not the route envisaged in the applicant’s costings is followed.

[27] The respondents did not previously have a gate in the pedestrian access route. They appeared slightly aggrieved by the applicant’s removal of the gate at the entrance to the street, but they had no entitlement to such a gate: it was their option whether to erect a gate or barrier at the entrance to their own property and they did not do so.

[28] We can appreciate that the respondents may wish to provide a more attractive path, but that would clearly be betterment. We can also not see any reasonable need, arising from the discharge, to re-jig the monoblocking in front of the house.

[29] Similarly, the cost of £5,238 (included in the overall costs of £15,975) for a video entry system upgrade, appears to us unrelated to the discharge. The respondents had no such entry system under the shared access arrangements.

[30] We also cannot allow the claim for reimbursement of previous monoblocking costs as ‘abortive’. Even if we had accepted replacement of this landscaping as reasonably necessary, it would not follow that its historic cost would also be recoverable. In this connection, it may be worth noting that it was not claimed that removal of the shared access so as to leave this part of the landscaping which was apparently developed to make use of the vehicular access right, would reduce the value of the property. The respondents appear to us to be left with a serviceable area of monoblocking in front of their house. If they choose to upgrade that area, that is in our view a matter for personal choice and is, again, not related to any loss or disadvantage caused by the discharge.

[31] In the result, therefore, we accept the respondents’ claim in so far as covering the cost of a new gateway and linking path, but uphold the applicant’s submissions in relation to the standard of the gateway and path, the provision of a new gate, the landscaping alterations around the house, the video entry system upgrade, and reimbursement of ‘abortive’ costs.

[32] We have also borne in mind that, as the respondents themselves have pointed out, the shared access was less advantageous in relation to security and the potential for discord with the neighbouring owners. This does not obviate the need for an alternative but it is another reason to guard against the possibility of an award producing betterment.

[33] For these reasons, we award compensation of £2730 in line with the applicant’s costing of the new gateway and linking path.

Submissions: Expenses

[34] There are three issues on expenses. Again, parties had lodged written submissions on which they elaborated at the oral hearing.

[35] Firstly, the applicant sought an award of expenses of the application up until and including 22 October 2013, the date on which the respondents withdrew their opposition on the merits of discharge. The respondents opposed that. The Tribunal heard the respondents first on this issue, as the application clearly appeared to have been successful on the merits. On behalf of the respondents, Mr Carlin referred to the Tribunal’s discretion under Section 103(1) of the Act. Referring primarily to the access over the shared driveway (two other matters covered by the application being of a minor nature), he summarised the respondents’ answers on the merits. The respondents had conceded on the merits on the morning of the hearing because “the relationship between the parties had completely disintegrated”, Mr Young having on two occasions spoken to persons visiting the respondents using the shared driveway. A settlement meeting on the day before the hearing had not resulted in agreement. The Tribunal should not award expenses as the removal of the access right was to the applicant’s gain. The applicant had not been entirely successful in relation to discharge of a separate pedestrian access, in respect of which she had provided an undertaking that access for maintenance and repair would be granted on reasonable notice.

[36] The Tribunal did not require the applicant to respond to these submissions.

[37] Secondly, in the event that she was entitled to expenses, the applicant sought an award on an ‘agent/client, client paying’ (or indemnity) basis. Mr Archibald referred to McKie v Scottish Ministers and British Railways Board v Ross and Cromarty County Council. He submitted that, having regard to the criteria referred to by Lord Hodge in McKie, the respondents’ conduct of the proceedings had been incompetent or unreasonable. The applicant had set out her position in January 2013, prior to lodging the application. The reply had been that the application would be “vigorously resisted”. The respondents had contended that they required to retain both the vehicular and the pedestrian rights of access but it could be seen that it would be difficult if not impossible for them to sustain many of their arguments in respect of matters of fact. They had sought to delay matters by raising preliminary issues which were without merit. They had lodged no authorities addressing the substantive issues in dispute in advance of the hearing on the merits. They had intimated, but not advanced any grounds for, reliance on Article 8 of the European Convention on Human Rights. They had not responded to an invitation to discuss the extent to which matters of fact might be agreed. It was clear from the outset that the application had very strong prospects of success. The respondents had opposed on the basis of assertions of fact which, it was apparent (and the Tribunal would be able to judge at a site inspection), were without foundation. There had been no serious challenge to the applicant’s version of events. Even if there were some stateable arguments, the respondents’ position on other matters was unsupportable. The adequacy of the respondents’ preparation, the weakness of their position on the merits and the way in which they conducted the proceedings were all relevant circumstances. The applicant had been put to the expense and trouble of proving matters when “… there had never been, and could never have been, any dispute” (c.f. British Railways Board). The respondents and their agents had failed to engage with the applicant and her agents in any meaningful way to focus issues and avoid unnecessary expense. There was no good explanation for conceding only on the morning of the hearing. The applicant had been put to the trouble of obtaining evidence and proving matters.

[38] Mr Carlin for the respondents opposed this part of the motion. The respondents’ conduct in the proceedings was not incompetent or unreasonable. They had had a stateable defence on reasonableness, on which it was for the tribunal to decide. Their concession of the merits was anything but unreasonable and saved further time and expense. Expenses should only be awarded on this basis if there was clearly no defence. There was nothing unreasonable in not referring to any further authorities than those intimated by the applicant, where every case turns on its own facts.

[39] Thirdly, the respondents sought the expenses of the compensation claim if compensation was awarded. The applicant sought expenses if no award was made, but also indicated that a sealed offer had been lodged and intimated. They accordingly reserved the right to make further submissions in the event of any compensation being awarded.

Tribunal’s Consideration: Expenses

[40] As the claim for compensation was only advanced, in accordance with procedure agreed at an earlier hearing, after the hearing at which the respondents conceded on the merits, the expenses of the two stages, merits and compensation, can in this case be considered separately.

[41] As regards the first issue, entitlement to expenses on the merits, i.e. up to and including 22 October 2013, the Tribunal did not require to hear Mr Archibald because we could not see any substance in any of Mr Carlin’s submissions against the applicant’s motion for expenses. Under Section 103(1) of the Act (which required the Tribunal to depart from its previous approach), the Tribunal under this jurisdiction is required to proceed on the general principle that expenses follow success. In other words, despite the respondent starting with the legal right, if they choose to oppose an application under this jurisdiction, they take the risk of an award of expenses if they lose, on the basis that by opposing they have caused the applicant the expense of proceeding with the application. This is so even although they may have had a stateable argument on reasonableness. The Tribunal does, as Mr Carlin said, retain a discretion but has to exercise it against the background of the general principle. Nothing which Mr Carlin said in this case persuades us to exercise this discretion against the applicant. Put shortly, the application set out the applicant’s case on reasonableness very fully and clearly; there was nothing in any way unreasonable about the applicant’s conduct of this case; and no relevant reason has been advanced for the respondents maintaining their resistance, which they eventually gave up, to the application. There was some reference to their recognition of a security issue, and to confrontations with Mr Young, but neither of these matters in any way argued in favour of the respondents’ position. Reference was made to a late attempt at settlement but there is no suggestion that the applicant acted in any way unreasonably in relation to the possibility of settlement: to the contrary, the applicant pointed to a letter dated 14 May 2013 to which there was no substantial response. It is correct that in their Answers the respondents raised the issue, in relation to the third title condition, of their requirement for access for maintenance purposes, the applicant initially resisted on this point but subsequently offered an undertaking about it. This, however, is a very small part of the picture, the main dispute being in connection with the shared access over the driveway of No 3.

[42] We are therefore clear that the applicant is entitled to expenses in relation to the merits of the application. However, that award runs only from the date of intimation of the respondents’ Answers, in accordance with our normal practice, because in this type of case the benefited proprietor cannot be regarded as having caused the expense of the initial application .

[43] The second issue, the applicant’s claim that expenses should be awarded on the ‘agent and client, client paying’ basis, as opposed to the normal ‘party and party’ basis, is more difficult. Mr Archibald relies on the following authoritative guidance as to circumstances in which an award on this basis might be made, by Lord Hodge in McKie v Scottish Ministers:-

“… thirdly, where one of the parties has conducted the litigation incompetently or unreasonably, and thereby caused the other party unnecessary expense, the court can impose, as a sanction against such conduct, an award of expenses on the solicitor and client scale. Fourthly, in the consideration of the reasonableness of a party’s conduct of an action, the court can take into account all relevant circumstances. Those circumstances include the party’s behaviour before the action commenced, the adequacy of a party’s preparation for the action, the strengths or otherwise of a party’s position on the substantive merits of the action, the use of a court action for an improper purpose, and the way in which a party has used court procedure, for example to progress or delay the resolution of the dispute.”

[44] We of course accept that guidance. We note that the standard of reasonableness referred to is not ‘wholly unreasonable’, so we can look at the overall picture rather than examining the respondents’ conduct at every stage. However, there is of course a range of reasonableness.

[45] Mr Archibald also referred to British Railways Board v Ross and Cromarty County Council. That appears to us to have been a rather different situation in which defenders had apparently taken a view (which was found to be indefensible) that they required to put pursuers to proof of matters about which there could never have been any dispute.

[46] We can accept Mr Carlin’s submission that there was nothing unreasonable about conceding on the merits, but the issue is really about the length of time for which, and the way in which, the respondents maintained resistance when, it is claimed, their position was unsupportable. A defence on the issue of unreasonableness under this jurisdiction may be properly stateable on a party’s behalf but lack any reasonable factual basis. Mr Archibald recognised that where a case has not proceeded to a hearing, it may be difficult to reach such a conclusion. On the other hand, in this case the further procedure on the claim for compensation, together with the site visit, affords some assistance.

[47] On this central issue alone, we would not accept the argument that the respondents’ position was so unsupportable as to justify expenses on the indemnity basis. We can see some force in the applicant’s position in relation to the issue of vehicular access. So far we can see, with the benefit of the pleadings together with what we saw on the ground, the suggestion that it was reasonable to maintain the access right because of difficulty in turning does seem extremely weak if not perhaps unstateable. The respondents maintained, but then abandoned, opposition on that basis. In their claim for compensation, we do not understand them to have suggested that removal of this right of vehicular access caused them any substantial loss or disadvantage. The original access right must have involved either turning or reversing out. Against that, the respondents had actually been using the shared vehicular access: this was not an attempt to retain an obsolete or redundant right. Further, our decision in relation to compensation involves acceptance of the view that the pedestrian access right was not only used but also of some real benefit to the respondents, and we did not accept the applicant’s view on that. It is slightly difficult to maintain that opposition to discharge of a title condition is unreasonable when it is found that the loss of the right results in some substantial loss or disadvantage.

[48] However, the applicant had further submissions about the respondent’s actual conduct of the proceedings. There would seem to be two main aspects: delaying the proceedings, for example by a misguided (as the applicant sees it) attempt to have this case sisted pending the outcome of the sheriff court action; and, if not in the end putting the applicant to actual proof, putting her to the expense of preparing to rebut unsupportable factual averments, for example in relation to turning space, and this in the face of an invitation from the applicant’s solicitors to get together in agreeing facts.

[49] At an oral hearing on 20 September 2013, the Tribunal was unpersuaded by arguments on the respondents’ behalf to, in effect, delay the proceedings. On an overall view, however, it does not seem to us that the respondents could be criticised for unduly delaying the course of this application, which was received by the Tribunal on 21 March 2013 and which was ready for hearing on the merits on 22 October. The respondents lodged Answers on 23 April; the applicant adjusted on 15 May; the respondents adjusted on 6 June; and the applicant adjusted finally on 28 June.

[50] We have reviewed the averments in the respondents’ adjusted Answers on the merits. In the light of our site inspection, some averments appear stronger than others. It is not difficult to agree that had the matter gone to a hearing, the applicant had the stronger case. We do not, however, find it possible, looking at these averments, to conclude that the applicant’s conduct in maintaining opposition to the application on the basis of these averments was unreasonable.

[51] We also agree with Mr Carlin that failure, in a case of this sort, to lodge supporting authorities does not advance this argument. We cannot discern any dispute on the legal approach which required such references. Beyond that, as Mr Carlin submitted, each case depends on its own facts and circumstances. Para 3.15 of the applicant’s submission on expenses suggests that the applicant may have been putting rather too much weight on decisions in other cases on different facts (as opposed to principles which could be deduced).

[52] The applicant also refers to “the adequacy of the Respondents’ preparation for the action.” On reviewing the respondents’ pleadings and productions, including affidavits, we do not consider that their preparation can be categorised as incompetent or unreasonable.

[53] It would of course have been preferable if the respondents had reached their final position of conceding on the merits, while reserving their claim for compensation, earlier. On an overall view of the applicant’s submission, however, we have reached the view that she has not made out this argument to the required standard. We shall not grant this part of her motion and shall award expenses in her favour on the normal, party and party, basis.

[54] The third expenses issue relates to the claim for compensation. Both parties claim expenses in the event of success. The respondents have obtained an award, but the applicant also refers to a sealed offer which, of course, the Tribunal has not yet seen. In that situation, we cannot at present decide this issue of expenses. Hopefully, the normal practice in relation to the effect of judicial tenders can apply so that there will be no need for further argument on the matter. However, either party can apply to the Tribunal again if necessary.

[55] There would appear to the Tribunal to have been divided success on the expenses issues. The Tribunal will accordingly find no expenses due to or by either party in relation to the present procedure in so far as it relates to issues of expenses.

Disposal

[56] As the Tribunal has found the respondents entitled to compensation, Section 90(9) of the Act now applies, i.e. the applicant has now to consent to pay the compensation awarded in order to obtain the Tribunal’s Order discharging the title conditions in question. Rule 6(2) of the Lands Tribunal for Scotland Rules 2003 further provides that the discharge will not be effective until compensation is paid or the respondents have agreed to the order taking effect.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 6 February 2014

Neil M Tainsh – Clerk to the Tribunal