Andrew and Annabella Yule (Applicants) v Michael Tobert (Respondent)

1. This is a motion for expenses by the respondent following our decision of 13 November 2015. We have refused the application for variation of a title condition. This Note should be read in the light of that decision.

2. The respondent refers to section 103 of the Title Conditions (Scotland) Act 2003 which 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 any opposition to the application, is successful.”

3. The respondent contends that he has been successful and accordingly we should find him entitled to expenses. He makes the point that the applicants should not have come to the Tribunal until condition 2 of the planning permission had been relaxed. Since the application to vary condition 2 of the planning permission was refused by Fife Council’s decision of 15 May and the Reporter’s decision of 19 October 2015, the application to the Tribunal had been unnecessary.

4. The applicants submit that in the unusual circumstances of the case there should be no finding of expenses due to or by either party. Had the Reporter’s decision relaxed the planning condition and thereby allowed the respondent to increase the usage of the access, the Tribunal would have granted the application subject to compensation. The Tribunal application was lodged on 1 May 2015 and was pursued throughout a period in which there was a stated intention of the respondent to use the right of access for commercial purposes. It was lodged prior to the decision by Fife Council and prior to the planning appeal which was still live at the time of the Tribunal hearing. Accordingly the question of prospective commercial use of the access was live from the point when the application was made and remained live at the time of the proof. The planning history required the applicants to act and had the respondent’s planning application or appeal been successful, then the applicants would have immediately been exposed to a material increase in the burden, preventable only by an application to the Tribunal.

5. We agree that the general rule is that expenses follow success, and this is underlined by section 103. However, we also agree that this is an unusual case and there are particular circumstances which point away from an award of expenses being made.

6. In the first place, section 103 directs us to have regard to the extent to which the application is successful. We expressed the view that had the respondent’s planning appeal been successful, the Tribunal application would have had merit. In that event we would have varied the title condition in order to maintain, as it were, the status quo of the existing usage of the access. For our part we were unable to foresee any change in the planning picture in the future following upon the Reporter’s decision. Nevertheless we envisage that our finding will be of some comfort to the applicants as owners of the burdened property should relevant circumstances change. Looking at the matter purely in terms of the end result, we think it is fair to say that the applicants have achieved some measure of success.

7. At the hearing the respondent’s conduct of the various planning applications was described as tenacious. This description is not unfair. We were somewhat troubled by the respondent’s change in position in the planning process which we discuss at paragraph [23] of our opinion and which was not explained in any of the oral evidence. We can readily see why the applicants felt they had to act prior to the conclusion of the planning process since there was no certainty of outcome. Had the respondent considered that the application to the Tribunal was precipitous or unnecessary, he could have sought postponement of the hearing until the planning appeal was determined.

8. In the unusual circumstances we will make no finding of expenses due to or by either party.

Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 4 December 2015

Neil M Tainsh – Clerk to the Tribunal