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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Biggin Hill Airport Ltd v London Borough Of Bromley [2002] EWCA Civ 1752 (18 October 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1752.html Cite as: [2002] EWCA Civ 1752

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
(MR STRAUSS QC sitting as a
deputy Judge of the Chancery Division)

		Royal Courts of Justice Strand London, WC2 Friday, 18 October 2002

1. LORD JUSTICE PILL: Lady Justice Arden will give the first judgment.
2. LADY JUSTICE ARDEN: A lengthy, and it seems intractable, dispute has arisen over the form of order in this case since this court gave judgment on 11 July 2001.
3. On that occasion the court adjourned the matter to enable the parties to agree an appropriate form of declaration and order. The parties have been in discussion and large numbers of points were in dispute. They have been reduced in number, but one area of debate remains. At this stage, in my judgment, the court has no jurisdiction to re-write the contract which the court is asked to construe, and did construe in its judgment. It can only make a declaration to give effect to its judgment. I am happy to say that there is not now any dispute as to what the court decided in this case; we are merely concerned with the way in which the court's conclusion should be expressed in the form of order.
4. Mr Michael McClaren QC appears on this occasion for BHAL (those were the initials used in the judgment). Mr McClaren did not appear on the appeal or at the trial. We are indebted to him for his submissions and also for keeping the court informed of the reduction in the areas of dispute between the parties. Mr McClaren has made a number of submissions because of the effect of the court's findings in its judgment.
5. BHAL wish the final form of order to provide that, for the avoidance of doubt, certain activities are to be taken to fall within the user clause of the lease with which the court was concerned. I do not propose to summarise the court's judgment on the last occasion, but simply to state that one of the principal issues the court had to resolve was the interpretation of the expressions "business aviation" and "other airport and aviation uses", being expressions used in clause 1.8 of a lease dated 6 May 1994, made between BHAL and Bromley.
6. The specific activities which Mr McClaren wishes to have listed in the provision to which I have just referred, are:

(1) flights in aircraft more than 35 years old and/or flights in aircraft commencing and/or terminating at Biggin Hill Airport without any intermediate landing;

(2) flights landing at or taking off from the airport as a result of an emergency or precautionary diversions from another airport;

(3) flights for the carriage of mail;

(4) flights for the carriage of cargo (whether or not for reward) provided that the cargo is not carried pursuant to a published timetable; and

(5) other activities permitted to be carried out under the terms of leases predating 6 May 1994 to businesses at the airport.

7. Mr McClaren has put the matter very fairly on the basis that these activities are not within the definition of business aviation within the user clause as construed by this court. However, he submits that BHAL had always anticipated that the lease would permit the activities and that they were activities which were conducted at the airport prior to the grant of the lease with which we were concerned. He submits that it would be unfair by the terms of this order to shut BHAL out from contending that these matters were permitted by the lease. He submits that the proper course would be for this court to make an order which states that such activities are permitted.
8. He has pointed out that the order will lead to possible prejudice to lessees at the airport. Bromley granted leases to operators at the airport prior to 1994, but BHAL took over those leases. The restriction on activities in those leases was by reference to an operating agreement and would subsequently be read as references to the lease, with the result that the restriction in the lease would also apply to those operators. Mr McClaren is concerned for the activities of those operators.
9. Mr McClaren points out that without the clause for which he contends, there is likely to be a substantial adverse effect on BHAL's, and he says Bromley's, activities at the airport with obvious financial implications. He submits that Bromley must have known about these activities because they owned the airport and received reports as to the activities at the airport. They agreed airport policy and, moreover, granted leases to the operators to whom I have referred. Moreover, he contends that BHAL purchased the existing business at the airport from Bromley without there being any mention of the curtailment of activities in accordance with the user clause as we have construed it to be.
10. Mr McClaren accepts that some of the activities listed in his proposed list of further activities to be stated, in order to be permitted within the lease, already fall within the definition "business aviation"; for instance some activities within the first category I have mentioned, and some activities concerning mail and cargo would already be within business aviation as construed. I can leave on one side the question of diversions within the second category.
11. In his helpful submissions, Mr McClaren was, nonetheless, unable to point to an exact juridical basis for saying that these activities were permitted beyond saying that BHAL believed that they were covered and that there was a possibility of proceedings for rectification.
12. Mr Stephen Moriarty QC appears on this application for Bromley and so appeared at the appeal. He submits that the question of what the activities at Biggin Hill were prior to the grant of lease was central to BHAL's argument on construction and such activities were relied upon in support of their construction. In that regard he referred us to paragraph 116 of the judgment, which sets out the court's conclusions on those activities so far as they were in evidence before it. Since the judgment, BHAL has uncovered some new evidence and placed it before the court on this application as to new sorts of pre-existing use. In its evidence it has referred to the knowledge of Bromley, but Bromley has not had the opportunity to investigate those matters.
13. I will next deal with the question of diversions. That is one of the categories with which the list of activity deals. Bromley is, in principle, agreeable to the landing and taking off of aircraft, provided they have had to land at Biggin Hill as a result of an emergency in circumstances where there is a risk of safety to the aircraft or its passengers. Bromley has explained to the court that it is unwilling to provide as wide a permission as BHAL seeks, as this would permit Biggin Hill Airport to be used as an airport of choice or convenience in the event of difficulty at landing at the airport at which the plane is destined to land.
14. As a result of discussion through counsel, we were shown the operative part of a letter which Bromley proposes to write to BHAL to reflect the terms of its permission. It states that:

"Even though the flight may not be for the purposes of business aviation, flight training or private flying within the terms of cl 1.8 of the Lease between London Borough of Bromley ("Bromley") and Biggin Hill Airport Limited ("BHAL"), Bromley confirms that it will not treat BHAL as being in breach of the Lease if an aircraft lands at Biggin Hill Airport (and subsequently taking off) as a result of a diversion where the aircraft has had to land for reasons of safety of the aircraft of its passengers."

15. Mr Moriarty has confirmed that although the matter did not arise out of the judgment, his clients were proposing to write a letter to the effect that Bromley would be content to give an undertaking in the terms I have just quoted. In my judgment that undertaking should be accepted and disposes of the second category of activity to which Mr McClaren refers.
16. I now turn to the remaining activities. In my judgment the court can only make a declaration to give effect to the judgment. The matters which are raised by these activities are matters which it is accepted are not business aviation. That was the issue, so far as relevant for present purposes, which the court had to determine. It is not open to the court now to go on to decide that further activities were also within the lease, although not within the user clause. In my judgment, therefore, it would not be right to make the form of order which Mr McClaren invites the court to make.
17. I gave consideration as to the question of whether or not the form of order should be expressed to be without prejudice to various contentions which BHAL may hereafter make, but I do not consider that would be right to do that either for two reasons. First, in the light of Mr Moriarty's submission that pre-existing activities were central to the argument on construction, it must be open to considerable argument that any further claim as to the meaning of the user clause is not now open to BHAL. For this court to make a reservation in this form of order might be thought to be expressing some view on that point. Accordingly, it seems to me not right to include that reservation. Secondly, it is not clear what basis BHAL has for any such claim, and no proceedings have yet been issued. For that reason also it seems to me wrong to make a reservation of the type to which I have just referred and mentioned in argument.
18. For all those reasons, the form of order which, in my judgment should be made, is that preferred by Bromley with the exclusion of the clause put forward by BHAL, but with the undertaking that Bromley has offered about diversions and which the court will now accept.
19. LORD JUSTICE DYSON: I agree.
20. LORD JUSTICE PILL: I also agree and acknowledge the work done by the parties to narrow their differences and to define and place clearly before the court the remaining issues.

Order: Appeal allowed. Appellants to have 75% of their costs to be subject to detailed assessment, if not agreed. Counsel to provide draft minute of order.