Agenda item

Report CSD21048

Biggin Hill Airport Limited (BHAL) had formally requested to modify the definition of “Permitted User” in clause 1.8 of their lease. They had requested that the Council approve the modification, but should the Council not agree this change then, pursuant to their rights under section 84 of the Law of Property Act 1925 they could apply to the Upper Tribunal (Lands Chamber) to determine such a change. Further information was set out in a part 2 report.

The report had been scrutinised by the Executive, Resources and Contracts PDS Committee on 25^th May 2021 and the Chairman, Councillor Christopher Marlow, provided a summary of the Committee’s debate. Councillor Marlow began by commenting that there had been no consultation with ward members in the southern part of the borough whose residents were disproportionately affected by the airport. He had written to members in eight wards and members from six wards had responded to him indicating considerable local interest. He recognised that decisions about the airport also needed to be made in the interests of the whole borough, but he requested that in future the ward members in Bromley Common and Keston, Petts Wood and Knoll, Farnborough and Crofton, Chelsfield and Pratts Bottom, Darwin and Biggin Hill wards should be consulted on proposals relating to the Airport with a noise impact; the Leader stated that he had already agreed that this should happen.

Councillor Marlow summarised the issues considered by the PDS Committee, and set out the main areas of concern. The first issue was trust and the Council’s overall relationship with the airport – it was considered that the application was a breach of previous commitments and a “red line” for most members; it was also contrary to the Court of Appeal judgement in 2002.  There was a feeling that the Airport was trying to achieve its aims by a salami-slicing approach. Members had received hundreds of emails about the application; all the members from Farnborough and Crofton, Petts Wood and Knoll and Darwin had written against the proposals, as had individual members from Bromley Common and Keston and Chelsfield and Pratts Bottom. It was recognised that the Airport brought employment and economic benefits to the Borough, and that the Council received rental income from the Airport. There was concern about noise from residents and ward members in the southern wards, but also more widespread concern about the broader environmental impact of increased activity at the Airport and the potential adverse impact on national and local carbon reduction targets. The Committee had also considered the legal advice in Part 2. The Committee had voted 9:2 (with 2 abstentions) against agreeing the Airport’s proposal.

Having heard Cllr Marlow’s presentation and studied their reports, the Leader asked Members of the Executive whether anybody present wished to make the case for granting BHAL’s application. No Member wished to do so at which point the Leader moved from the Chair that the request be declined, a proposal seconded by  Councillor Graham Arthur, Portfolio Holder for Resources, Commissioning and Contract Management,  who commented that it was reasonable for a tenant to ask its landlord for a change to its lease, and it was not surprising that this should happen in an evolving industry such as aviation over the course of a long lease. However, he considered that the alteration requested would lead to a fundamental change in the way that the Airport operated. The legal advice was that it was reasonable for the Council to uphold the current position, and he considered  that the Council should not give in to the threat of challenge.  He expressed disappointment that the matter had not been raised at an earlier stage at the Airport Consultative Committee.

Before moving to the vote, the Leader invited Councillor Angela Wilkins to address the meeting as Labour Group Leader. She referred to a letter from the Airport’s solicitors on the part 2 agenda, which had been discussed by the PDS Committee and perceived as threat of taking the issue to a Tribunal. She suggested that a tenant would not normally resort to such a threat lightly, and therefore questioned when the Council had become aware of the Airport’s intentions. The Airport had informed her that it had been trying for two years to have a positive relationship with the Council as its landlord, and had raised the issue of fare-paying passengers with Council officers the previous autumn - they viewed their letter as a last resort. Councillor Wilkins questioned whether the Council had fulfilled its duty to have a constructive relationship with the Airport as its tenant and had acted reasonably as a landlord.

The Chief Executive responded that he did not agree with view of the Council’s relationship with the Airport put forward by Cllr Wilkins. Officers had been in conversation with the airport – he was aware of six or seven meetings and about eight letters - and had been working since the previous autumn to get to a position where the proposals could be put to Members for decision with a detailed report. Other Members commented that the proposals had not been raised at the Biggin Hill Airport Consultative Committee until very recently.

Following her contribution, the Leader asked Cllr Wilkins how she would be minded to vote on the item were she in a position to do so to which she replied that she was unsure that she had all the facts to decide how to vote.

The Leader then invited Councillor Julian Benington to address the meeting on behalf of the Independent Group. He agreed with Councillor Wilkins’ comments, but accepted the response made by the Chief Executive. He wanted more information on what discussions had been held with the Airport, and at what level. He was concerned that the Council should give the Airport, as a major tenant and local employer, a fair hearing and he suggested further negotiation on the proposal. He added that he had lived in Downe near the Airport for many years, and his perception was that, with occasional exceptions, aircraft noise had reduced considerably in that time. Following his contribution, the Leader then asked Cllr Benington how he would be minded to vote on the item were he in a position to do so to which he replied that the Independent Group considered that there should be further discussion with the Airport so that both sides could understand each other’s positions without incurring the costs of going to court.

On being put to the vote it was unanimously RESOLVED that the proposal from Biggin Hill Airport Limited to modify the definition of “Permitted User” in clause 1.8 of their lease be refused and the any application to the Upper Tribunal (Lands Chamber) be contested.