Issue - meetings

That BHAL’s application to amend the Permitted User Clause in the Lease be refused and appropriate funds to fight any tribunal case be set aside.

BHAL had formally requested their intention to seek to modify the definition of “Permitted User” in clause 1.8 of the Lease. They had requested that the Council approved the modification, but should the Council not decide to approve it then pursuant to their rights under section 84 of the Law of Property Act 1925 (“LPA 1925”) they would apply to the Upper Tribunal (Lands Chamber) to determine such a change.

In introducing the item, the Portfolio Holder for Resources, Commissioning and Contracts Management made the following comments and highlighted the following points from the discussion at the Executive, Resources and Contracts PDS Committee on 23 November 2022:

1. The letter from BHAL dated 24^th October demanded a response within 28 days, so this was not an item that could be deferred;
2. The legal advice the Council received indicated that the Council had strong grounds to resist challenge to the current Permitted User Clause (PUC);
3. The Council had a duty to behave reasonably in respect of any requests made by BHAL in its capacity as tenant;
4. Any amendment of the existing PUC could undermine the principle of no fare-paying passengers upheld by the Court of Appeal in 2002;
5. The lease had been set up partially to protect residents on environmental grounds; and
6. The 28-day deadline set by BHAL had, similar to the request last year, given the Council and Bromley residents relatively little time for discussion.

The Portfolio Holder noted that the letter dated 24^th October received from BHAL contained the following sentence: “Please confirm that the Council agrees to BHAL’s above proposed modification of the definition of the Permitted User in the Lease”. This was followed by “However, having taken all of the above steps, if this still does not result in an agreement over the proposed modification then BHAL will have to make such an application and will refer the Tribunal to this correspondence”. It was noted that under property law Bromley Council as landlord of the airport was required to consider any requests to amend the lease received from BHAL as tenant. Bromley Council was acting within its legal obligations as landlord by considering this request; it would also be entirely within its legal rights as landlord to refuse, providing this was done on reasonable grounds.

Executive heard that the existing permitted user clause, upheld by the Court of Appeal in 2002, did not permit fare-paying passengers. The original intention of this clause and the lease in general, as amended by the deed of variation and related documents in 2016, was to permit the operation and development of Biggin Hill airport for business aviation, flight training and private flying, as well as one air fair or display each year. It was drafted explicitly to preclude the possibility of fare-paying passengers from using the airport, as the resulting increase in aircraft movements would likely result in an unacceptable loss of amenity for residents living in the southern part of the borough.

The Portfolio Holder recognised that the  ...  view the full minutes text for item 99