Biggin Hill Airport Ltd v London Borough of Bromley

Contractual user clauses are construed objectively, by reference to the language read as a whole and the factual matrix reasonably available to both parties. Background evidence cannot substitute subjective intentions for the meaning of the agreement. A general phrase following specific permitted activities ordinarily operates as a sweep-up clause for ancillary or connected uses, rather than making the specific activities redundant. Thus, “other airport and aviation related uses” does not ordinarily permit every form of aviation. “Business aviation” focuses on the operator’s business purpose. It includes aircraft operated by a business for its own purposes, including qualifying air taxis and helicopters, but excludes unrestricted scheduled carriage of individual fare-paying passengers. A limited scheduled service expressly contemplated elsewhere in the lease was nevertheless permitted.

Biggin Hill Airport Ltd appealed from declarations made by Mr Nicholas Strauss QC, sitting as a deputy judge of the Chancery Division, concerning the meaning of the permitted-user clause in a 125-year lease of Biggin Hill Airport.

The clause permitted facilities for business aviation, flight training, private flying and other airport and aviation-related uses. The lower court held that limb A included scheduled or chartered services predominantly carrying passengers travelling for business purposes, and that limb D included any other chartered or scheduled service, air-taxi or helicopter flight. The central questions were whether BHAL could withdraw a pleaded concession, whether limb D permitted unrestricted flying, how “business aviation” should be construed, and whether Bromley was estopped from relying on the proper construction.

1. Appeal allowed; cross-appeal dismissed. The court directed that a new declaration be made, with the form of declaration adjourned generally.
2. BHAL was entitled to withdraw its pleaded construction concession. Bromley could not establish detriment without relying on the contents of without-prejudice negotiations. Even if an estoppel had been pleaded, it had no real prospect of success on the material available.
3. “Business aviation” had no established special technical meaning. It was construed objectively against the relevant factual matrix. The phrase focuses on the purposes of the operator of the aircraft, meaning the person using it whether or not the owner. It includes aircraft owned or chartered by a company or other business and operated for that business’s purposes, including carriage for its employees, customers or suppliers where undertaken for the business. It excludes a business whose business is carrying passengers for reward and excludes individual fare-paying passengers carried under a published timetable. Air taxis and helicopters were included.
4. The phrase “other airport and aviation related uses” was a sweep-up clause. The word “related” indicated ancillary or connected uses, such as aircraft-maintenance facilities, rather than aviation itself. Limb D therefore did not authorise every scheduled or chartered service or every other form of flying.
5. The lease was read as a whole. Schedule 3’s reference to extending opening hours to permit an operator based at the airport to operate a scheduled service to France permitted the existing Le Touquet service, but did not enlarge limb D into a general permission for scheduled services. The option to hold a public-use licence did not itself enlarge the permitted-user clause.
6. Bromley was not estopped. Its officers’ silence did not amount to a representation on the material facts, and the terminal extension was undertaken without the written landlord’s consent required by the lease. Although an indication that consent would be a formality and expenditure of nearly £0.5 million favoured BHAL, BHAL could have pursued the missing documentation and Bromley lost the opportunity to investigate the matter properly. It was therefore not unconscionable for Bromley to rely on the lease.

Lord Justice Dyson and Lord Justice Pill agreed with Lady Justice Arden.

• Court of Appeal (Civil Division): appeal from the order of Mr Nicholas Strauss QC, sitting as a deputy judge of the Chancery Division, dated 21 November 2000. Appeal allowed and cross-appeal dismissed.