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Section 50 Agreement

Minute of Agreement between The Highland Council, Scottish Natural Heritage, Highlands and Islands Enterprise, The Cairngorm Chairlift Company Limited and The Governor and Company of The Bank of Scotland under S.50 of The Town and Country Planning (Scotland) Act 1972 and S.49(a) of the Countryside (Scotland) Act 1967.

(FIRST) The principal purpose of this agreement is to ensure that the Development proposed is managed in such a way that it will not adversely affect the integrity of the said European sites.

(SECOND) For the purposes of this Agreement, the following terms shall have the meanings given to them by this clause:

Agreement unless the context indicates otherwise, includes the approved Visitor Management Plan including the Monitoring Scheme referred to in Clause (SIXTH) and the approved implementation Scheme referred to in Clause (SEVENTH) hereof:-

Associated buildings means the buildings referred to in Recital 2(d) hereof:-

Development refers to the activities granted planning permission in the Decision Notice to be issued under clause (THIRD) hereof:-

Development site means the land which is subject of the planning application number BS/1994/254 referred to in Recital 1 hereof which land is described in that Recital;

Implementation Scheme means the scheme for implementing the development referred to in Clause (SEVENTH) hereof;

Monitoring Scheme means the Monitoring Scheme to be prepared and implemented by the Applicant under the terms of Clause (SIXTH) (a) and (b) hereof;

Non-Skiing Visitors means visitors to the Ski Area at any time of year who come for a purpose other than skiing, snowboarding, tobogganing, ski bobbing and other winter sports activities of a similar nature. The term also includes skiers, snowboarders and others undertaking the afore-mentioned sports who move from the Ski Area to adjoining land in the proposed European Sites;

Ski Area refers to the area of land which is the subject of (FIRST) Lease between Highlands and Islands Development Board and cairngorm Sports Development Limited dated 12th and 22nd January 1974 …etc…including for the avoidance of doubt the solum of the public road leading to the Coire Cas Car Park (in so far as located within the Ski Area) …etc…which area of land is shown delineated in green on the plan annexed and signed as relative hereto and marked “PLAN 2 – Ski Area”;

Ski season refers to the period from 1st November in any year to 30th April in the following year;

Summer season refers to the period from 1st May to 31st October in any year;

Visitor Management Plan means the plan for managing Non-Skiing Visitors to be prepared and implemented by the Applicant under the terms of Clause (SIXTH) hereof. …

(THIRD) On execution of this agreement, the planning authority shall forthwith issue to the applicant, the decision notice in respect of approval of the Application and the Development shall be subject to:- the conditions, until purified, specified in the decision notice; and the conditions, restrictions, obligations, prohibitions and others contained within this Agreement until such time, if ever, as any or all of the restrictions, obligations, conditions or others contained within this Agreement are implemented, modified or discharged.

(FOURTH) The restrictions, obligations, conditions or others contained within this Agreement shall be created real and preferable burdens upon and affecting the ski area and are appointed to be recorded at length or otherwise validly referred to in all future conveyances, dispositions or other such deeds, including leases, relating to the ski area in whole or in part, but declaring that, with the exception of the obligations in clause (FIFTH) they shall not take place until such time as the decision notice is implemented…The obligations in clause (FIFTH) shall take effect immediately on the execution of this Agreement.

(FIFTH) The Applicant will meet the cost of a base line survey the Purpose of which is to document the existing condition of the area shown outlined in red on Plan 3 annexed hereto in relation to soils, habitats, species of birds and levels and patterns of visitor use. The Applicant undertakes to carry out the survey in so far as it relates to the Ski Area. The survey is to cover such matters and is to be undertaken in a manner to be agreed by the Planning Authority and SNH and is to be carried out over a consecutive period of twelve months. No development shall commence on the Development Site, unless otherwise agreed , by the Planning Authority and SNH until that part of the survey to be undertaken by the Applicant has been submitted to and approved in writing by the Planning Authority and SNH. The Planning Authority and SNH will, within twelve weeks of the submission of the said part of the survey for approval, notify the Applicant in writing that they approve the said part of the survey or, alternatively, that they do not approve the said part of the survey for the reasons given in the notice.

(SIXTH)

(a)           Within nine months of the commencement of development on the Development Site, the Applicant will, at its own cost, prepare in consultation with the Planning Authority, SNH and the Proprietor and submit to the Planning Authority and SNH for their approval a final Visitor Management Plan (hereinafter referred to as “the VMP”) for Non Skiing Visitors and the use by the public of the funicular railway shall not commence until such approval has been given- The VMP will define the Applicant’s objectives and its approach to visitor management The Planning Authority and SNH will, within twelve weeks of the submission of the VMP for approval or such longer period as shall be agreed between the parties, notify the applicant in writing that they approve the VMP or, alternatively, that they do not approve the VMP for the reasons given in the notice.

(b)           Amongst other things, the VMP will deal with the preparation and implementation of a monitoring scheme (hereinafter referred to as “the Monitoring Scheme”). The Monitoring Scheme shall include details of the following: –

i)               the matters to be the subject of detailed monitoring, including the monitoring of non-ski use during the ski season;

ii)              the method of monitoring to be adopted and the manner in which it is to be carried out;

iii)             the division of responsibility for carrying out and paying for each aspect of monitoring;

iv)            the identification of suitably qualified persons to undertake the monitoring,

v)             the arrangements for reporting the results;

vi)            the criteria against which the results of monitoring will be tested and measured and the identity of the persons to undertake the testing and measurement;

(c)               The Applicant undertakes to implement, at its own cost, the obligations imposed on it in the approved VMP, including implementation of such aspects of the approved Monitoring Scheme as are its responsibility in accordance with sub-clause (b)(iii) hereof, in the manner and in the time stipulated in the VMP and to the satisfaction of the Planning Authority and SNH;

(d)              A breach of the terms of the approved VMP shall be treated as a breach of the terms of this Agreement;

(e)               The funicular railway shall not be brought into commercial use until such time as those obligations in the approved VMP which are to be implemented prior to that event have been carried out to the satisfaction of The Planning Authority and SNH.

(f)               The Planning Authority and SNH agree that the draft VMP annexed and signed as relative to this Agreement is indicative of the matters which they wish to see covered in the final VMP. The final VMP will, however, require greater detail and precision and the Planning Authority and SNH will require to be satisfied on these matters before giving their approval to the final VMP.

(SEVENTH)

(a)           Prior to commencement of Development on the Development Site, the Applicant will, at its own cost prepare and submit to the Planning Authority and SNH for approval a scheme for implementing the Development (hereinafter referred to as “the Implementation Scheme”) and the Planning Authority and SNH will decide whether to approve the Scheme. The Planning Authority and SNH hereby agree to respond to the Implementation Scheme within twelve weeks of receiving details hereof and will either grant approval hereunder or indicate why approval has been withheld. The Implementation Scheme shall set out details of the timing and manner of implementation of the Development but without prejudice to the foregoing generality, the scheme will include details of:-

i)           the timing and manner of the removal of the existing Coire Cas chairlifts

ii)          the steps to be taken to reinstate the land and to remove materials consequent on the removal of the chairlifts;

iii)         the arrangements for monitoring the results of such reinstatement and for taking remedial action where appropriate;

iv)         the steps to be taken to reinstate the land and to remove materials consequent on completion of the construction works involved in the Development and the arrangements for monitoring the results of such reinstatement and for taking remedial action where appropriate;

v)          the provisions for monitoring the effect on the Development Site of the Development and for remedying any adverse effects

(b)          The Applicant undertakes, at its own cost, to implement the Implementation Scheme in the manner agreed and to the satisfaction of the Planning Authority and SNH. Any breach of the terms of the Implementation Scheme shall be treated as a breach of the terms of this Agreement.

(c)         On receipt of notice of permanent discontinuance, the Proprietor shall have an initial period of twelve months to find an alternative operator to take over the operation of the funicular railway. If, at the end of that period, no alternative operator has been found but the Proprietor wishes to continue the search and satisfies the Planning Authority and SNH with regard to the steps that have and are being taken to find such an operator, the Planning Authority and SNH shall (acting reasonably and taking into account the Proprietor s interest in the Development Site) allow a further period of twenty-four months for the search. Any further extension beyond the total period of three years shall be at the discretion of the Planning Authority and SNH. Whilst the Proprietor is seeking an alternative operator the Proprietor agrees that he will meet with the Planning Authority and SNH on a regular basis and at least once every six months to inform the Planning Authority and SNH of progress in finding an alternative operator.

(d)         Should the Proprietor fail to find an alternative operator in the period allowed, or should the Proprietor notify the Planning Authority and SNH on receipt of the notice referred to in sub-Clause (a) above that it does not intend to seek an alternative operator, the Applicant undertakes, on receipt of written notification of the position from the Planning Authority and SNH, to dismantle the funicular railway and such other associated buildings and works on the Development Site and which the Planning Authority and SNH require to be dismantled and the same shall be removed from the Development Site and the Development Site shall be reinstated within the time specified by and to a standard to be determined by the Planning Authority and SNH in the written notification and the said written notification shall stipulate a day by which such work must commence. Notwithstanding the undertaking by the Applicant, the Proprietor may, in their absolute discretion, choose to undertake such work and, if they choose to do so, they shall first notify the Planning Authority and SNH and such work shall be undertaken by the Proprietor within the time and to the standard specified by the Planning Authority and SNH in the written notification to the Applicant. The immediately preceding sentence shall not apply to Highlands and Islands Enterprise who undertake that in the event of the applicant failing to undertake the works of reinstatement referred to above, they will carry out such works and reinstate the Development Site with all due diligence and Highlands and Islands Enterprise agree to have regard to reasonable requests made by the Planning Authority and SNH in connection with the said reinstatement works. Highlands and Islands Enterprise agree that they shall give prior notice to the Planning Authority and SNH of the nature and extent of the detailed works to be carried out and the time scale for completion and in the event of any dispute arising between the parties on the said matters said dispute shall be referred to the decision of a sole arbiter having appropriate expertise in civil engineering and in techniques for the reinstatement of land where questions of landscape and ecological significance arise. Such arbiter shall be appointed jointly by the parties or in default of agreement shall be appointed by the President of the Law Society for the time being. The decision of such arbiter shall be final and binding.

(EIGHTH)

(a)         The Planning Authority and SNH will after consultation with the Applicant and the proprietor appoint a suitable qualified person or person to provide for them, by the end of November in each year or such other date as may be agreed by the Planning Authority and SNH, at the reasonable cost of the Applicant, an annual report on the Impact of Non-Skiing Visitors using the Coire Cas Car Park and the funicular railway and on the effectiveness of the approved VMP in managing such visitors;

(b)             The Applicant, and the Proprietor in so far as the Proprietor’s consent is required, will permit such person or persons appointed pursuant to sub clause (a) of this clause, or any person duly authorised in writing by such person or persons, access to the Ski Area, to the Development and to other facilities of the Applicant on the Development Site, for the purpose of preparing the annual report;

(c)             The Applicant and SNH (as appropriate) will provide such person, or any person duly authorised by such person, access to all data in their possession arising from the implementation of the Monitoring Scheme referred to in Clause (SIXTH) (b) above.

(NINTH)

(a)         If information arising from the operation of the Monitoring Scheme or from the annual reports indicates to the Planning Authority and SNH that measures additional to or different from those stipulated in the approved VMP may be appropriate for the purposes of the Development as a consequence of the Development’s impact upon the integrity of the proposed European sites referred to in Recital 4 to this Agreement or that remedial work may be required, they shall first consult with the Applicant and the Proprietor about such measures;

(b)         If, following such consultation, the Planning Authority and SNH decide that measures additional to or different from those stipulated in the approved VMP are appropriate, such measures will be implemented by the Applicant at its own cost and within such time and in such manner as determined by the Planning Authority and SNH and the VMP shall be altered accordingly, and the VMP as so altered shall become the approved VMP;

(c)         If, following such consultation the Planning Authority and SNH decide that remedial works are required, such works will be undertaken by the Applicant at its own cost and within such time and in such manner as determined by the Planning Authority and SNH or, if the Planning Authority and SNH so decide, will be undertaken by the Planning Authority and SNH at the cost of the Applicant;

(d)         The Applicant may at any time request the Planning Authority and SNH to review any of the requirements imposed on it by the approved VMP and the Planning Authority and SNH shall review such requirements and may agree to alter the VMP and the VMP as altered shall become the approved VMP. The Applicant shall meet the reasonable costs of the Planning Authority and SNH properly vouched in undertaking such a review.

(TENTH)

(a)           In the event of the Applicant wishing to discontinue the operation of the funicular railway either temporarily or permanently, otherwise than:-

(i)    for the purpose of maintenance or repair

(ii)   as a result of bad weather or

(iii)  as a consequence of the Applicant’s normal and reasonable management of the Ski Area

or in the event of the Applicant being obliged permanently to discontinue the operation of the funicular railway, the Applicant shall forthwith give written notice to the Planning Authority, SNH and the Proprietor, which notice shall indicate whether the discontinuance is temporary (and if so, for how long) or permanent. For the avoidance of doubt, in the event of the Applicant discontinuing the operation of the funicular railway permanently because of an intention to assign its interest in the operation to a new operator, the Applicant will, nonetheless be required to serve written notice under this Clause on the Planning Authority, SNH and the Proprietor.

(b)           On receipt of notice of temporary discontinuance, the Planning Authority and SNH may, after consultation with the Applicant, require steps (including the carrying out of works) to be taken by the Applicant to safeguard the integrity of the said European Sites during the period of closure and shall specify the time within which such steps must be taken and the Applicant, at its expense, will thereupon undertake such steps.

(c)           On receipt of notice of permanent discontinuance, the Proprietor shall have an initial period of twelve months to find an alternative operator to take over the operation of the funicular railway. If, at the end of that period, no alternative operator has been found but the Proprietor wishes to continue the search and satisfies the Planning Authority and SNH with regard to the steps that have and are being taken to find such an operator, the Planning Authority and SNH shall (acting reasonably and taking into account the Proprietor’s interest in the Development Site) allow a further period of twenty-four months for the search. Any further extension beyond the total period of three years shall be at the discretion of the Planning Authority and SNH. Whilst the Proprietor is seeking an alternative operator the Proprietor agrees that he will meet with the Planning Authority and SNH on a regular basis and at least once every six months to inform the Planning Authority and SNH of progress in finding an alternative operator.

(d)           Should the Proprietor fail to find an alternative operator in the period allowed, or should the Proprietor notify the Planning Authority and SNH on receipt of the notice referred to in sub-Clause (a) above that it does not intend to seek an alternative operator, the Applicant undertakes, on receipt of written notification of the position from the Planning Authority and SNH, to dismantle the funicular railway and such other associated buildings and works on the Development Site and which the Planning Authority and SNH require to be dismantled and the same shall be removed from the Development Site and the Development Site shall be reinstated within the time specified by and to a standard to be determined by the Planning Authority and SNH in the written notification and the said written notification shall stipulate a date by which such work must commence. Notwithstanding the undertaking by the Applicant, the Proprietor may, in their absolute discretion, choose to undertake such work and, if they choose to do so, they shall first notify the Planning Authority and SNH and such work shall be undertaken by the Proprietor within the time and to the standard specified by the Planning Authority and SNH in the written notification to the Applicant   The immediately preceding sentence shall not apply to Highlands and Islands Enterprise who undertake that in the event of the applicant failing to undertake the works of reinstatement referred to above, they will carry out such works and reinstate the Development Site with all due diligence and Highlands and Islands Enterprise agree to have regard to all reasonable requests made by the Planning Authority and SNH in connection with the said reinstatement works. Highlands and Islands Enterprise agree that they shall give prior notice to the Planning Authority and SNH of the nature and full extent of the detailed works to be carried out and the time scale for completion and in the event of any dispute arising between the parties on the said matters said dispute shall be referred to the decision of a sole arbiter having appropriate expertise in civil engineering and in techniques for the reinstatement of land where questions of landscape and ecological significance arise. Such arbiter shall be appointed jointly by the parties, or in default of agreement shall be appointed by the President of the Law Society for the time being. The decision of such arbiter shall be final and binding.

(e)           In the event of the Applicant or the Proprietor failing to commence the work as required in Clause (TENTH)(d) above on the stipulated date or otherwise defaulting on the obligation to carry out the work within the time and to the standard specified, the Planning Authority and SNH may immediately take such action as they think fit to carry out and complete the work to the required standard and persons duly authorised in writing by the Planning Authority and SNH may enter the land to carry out and complete the work and the reasonable cost thereof may be recovered from the Applicant directly or in terms of Clause (TENTH) (f) hereof.

(f)           In the event of the Applicant failing to reimburse the Planning Authority and SNH the reasonable cost of work carried out by the Planning Authority and SNH in terms of Clause (TENTH)(e) hereof, the Proprietor hereby undertakes to indemnify the Planning Authority and SNH in respect of such costs. This clause shall not apply while Highlands and Islands Enterprise (or any other successor public body) is the Proprietor but it shall apply to any other successor to the Proprietor’s interest in the Development Site.

(ELEVENTH)

(a)         Any person authorised in writing by the Planning Authority or SNH (such authorisation having first been notified in writing to the Applicant) shall be entitled at any time to enter the Ski Area and any facilities of the Applicant on the Development Site to determine whether the Applicant is fulfilling the obligations imposed on it under this Agreement;

(b)         In the event of a failure by the Applicant to implement or satisfactorily to implement any of its obligations under this Agreement, other than the requirement to carry out work of dismantling, removal and reinstatement referred to in Clause (TENTH)(c) above, the Planning Authority shall, on behalf of itself and of SNH, serve notice in writing by recorded delivery post on the Applicant at its registered office, specifying

(i)                  the failure or failures

(ii)                 the steps required to be taken to remedy the failure or failures

(iii)                the time within which such steps are to be taken

(c)         If the Applicant fails to take, or in the judgement of the Planning Authority and SNH fails adequately to take, the required steps within the time stipulated, any person duly authorised in writing by the Planning Authority or SNH may, where positive steps are required, upon giving the Applicant seven days prior notice in writing and subject to clause TWENTIETH hereof enter the Ski Area and take such steps and recover the reasonable cost of doing so from the Applicant either directly or in terms of Clause (TWELFTH) of this Agreement as appropriate;

(d)            Furthermore, and having regard to clause TWENTIETH hereof, where by the start of any Summer Season the time for compliance with the notice referred to in sub-clause (b) above has passed and the steps required have not been taken or m the judgement of the Planning Authority or SNH have not adequately been taken, the Planning Authority and SNH may, where in their absolute discretion, they consider the failure by the Applicant to be a material failure instruct that commencement of the use of the funicular railway for that and subsequent Summer Seasons be delayed until such time as the notice has been complied with and the use of the funicular railway shall not commence until the Planning Authority and SNH have certified this in writing to the Applicant;

(e)            For the avoidance of doubt the exercise by the Planning Authority and SNH of any of their powers under this Agreement shall be without prejudice to their right to take action at common law to remedy a breach of this Agreement and without prejudice to the right of the Planning Authority to take action under the Town & Country Planning (Scotland) Act 1972, as amended, for a breach of planning control.

(TWELFTH)

(a)         The Applicant shall provide not later than the date of commencement of the Development a Guarantee or Indemnity or Bond from a third party acceptable to the Planning Authority and SNH in the initial sum of SIXTY FIVE THOUSAND POUNDS (£65,000) STERLING, which sum shall be adjusted in line with the Retail Price Index, and on such terms as may be reasonably agreed amongst the parties thereto for the purpose of securing the obligations in this Agreement, other than the reinstatement of the Development Site following upon discontinuance of the operation of the funicular railway as required by Clause (TENTH)(d) above. Such Guarantee or Indemnity or Bond shall be produced to and approved by the Planning Authority and SNH before it takes effect and the Development shall not commence until such time as the said Guarantee, Indemnity or Bond has taken effect. The Guarantee or Indemnity or Bond shall provide that all reasonable costs incurred by the Planning Authority or SNH as a result of the Applicant’s failure to perform its obligations will be reimbursed in full and without adjustment on receipt of evidence of the reasonable expenditure incurred. Subject to sub-clause (b) hereof, the Applicant shall, thereafter maintain sald Guarantee, Indemnity or Bond until the provision of a substitute Guarantee, Indemnity or Bond under Clause (TWELFTH)(c) of this agreement occurring 36 months (or such extended Period as may be allowed by the Planning Authority and SNH in terms of Clause (TENTH) (c)) after a notice of discontinuance is served under clause (TENTH) of this Agreement. Evidence of renewal of the said Guarantee, Indemnity or Bond for a further term shall be produced to the Planning Authority at least three months prior to its term date. The said Guarantee or Indemnify or Bond and the proceeds available there under may be utilised by the Planning Authority and SNH to cover the cost of implementing the obligations in this Agreement. The Applicant further undertakes that, subject to Sub-clause (b) hereof, the value of the Guarantee, Indemnity or Bond shall be maintained at SIXTY FIVE THOUSAND POUNDS(£65,000) STERLING, as adjusted in line with the Retail Price Index, notwithstanding calls upon it from time to time by the Planning Authority and SNH under the terms of this Agreement.

(b)         The sum referred to in sub-clause (a) above shall be reviewed by the Applicant, the  Planning Authority and SNH  every three years and adjusted by the Applicant, to reflect the cost for the time being as determined by the Planning Authority and SNH of securing the obligations in this agreement other than the reinstatement of the development Site following upon discontinuance of the operation of the funicular railway as required by clause (TENTH)(d) above. To assist in this review, the Applicant undertakes to maintain a record, in a manner to be agreed between the Applicant, the  Planning Authority and SNH, of the cost of implementing the obligations in this Agreement and to produce such a record to the  Planning Authority and SNH on request at the commencement of a review.

(c)         In the event of an alternative operator taking over the operation of the funicular railway as provided for in clause TENTH (c) hereof, and on every subsequent occasion on which an alternative operator takes over the operation of the funicular railway, the said Guarantee, Indemnity or Bond shall continue to be maintained by the outgoing operator until such time as as trhe alternative operator has taken out and brought into effect a Guarantee, Indemnity or Bond in like manner and for a like adjustable sum with a third party acceptable to, the  Planning Authority and SNH, which Guarantee, Indemnity or Bond shall be maintained and renewed in like manner.

(THIRTEENTH)

(a)         Subject to sub-clauses (c) and (d) below, the  Planning Authority and SNH shall have equal status in matters requiring a decision to be made or action to be taken by them under this Agreement or in other matters relating to the implementation of this Agreement. Both must agree on the decision to be made or the action to be taken.

(b)         Where action under this Agreement is to be taken by the Applicant to the satisfaction of the  Planning Authority and SNH, each must be satisfied before the Applicant can be taken to have complied with the requirements.

(c)         (i)         Where, under the terms of this Agreement, the  Planning Authority and SNH are initially unable to agree on a decision to be made or action to be taken, the Authority will forthwith notify the Applicant and the Proprietor and provide a copy of the notification to SNH.

(ii)         The Planning Authority and SNH will each have three weeks from the date of the notification to the Applicant and the Proprietor to provide the other with a written statement of their case on the matter. The  Planning Authority and SNH shall each provide a copy of their statement to the Applicant and the Proprietor.

(iii)        Thereafter, the matter in issue will be referred within five weeks from the date of the said notification to a joint committee for consideration. The joint committee will comprise three members appointed by the Planning Authority  and three members appointed by SNH. The quorum of the joint committee will be six. The  decision of the joint committee on the matter will be final and binding on the Planning Authority and SNH. The decision will be communicated to the Applicant and the Proprietor in writing within three days of the date of the meeting.

(iv)        If SNH is of the opinion that the matter in issue concerns or is likely to concern the integrity of the said European Sites, their view on this shall be taken as conclusive and the joint committee shall be chaired by one of the three SNH members. In all other cases, the joint committee shall be chaired by one of the three Planning Authority members. In the event of an equality of votes on the matter in issue, the Chairman shall have a casting vote.

(d)         The Planning Authority and SNH may agree that, in the circumstances of a particular case or with regard to particular matters, the decision to be made or the action to be taken under this Agreement shall be determined by one of them. Such agreement may be subject to such conditions as the Planning Authority and SNH consider appropriate, including a condition allowing for a resumption of jurisdiction in specified circumstances. Such an agreement between the Planning Authority and SNH shall be notified to the Applicant in writing and shall not take effect until such notification has been given.

(FOURTEENTH)

(a)         Subject to Clause EIGHTEENTH hereof, the Planning Authority and SNH shall be the sole arbiters of whether action to be taken by the Applicant under the terms of this Agreement has been satisfactorily taken;

(b)         Any dispute arising between the Parties hereto as to the true intent and meaning of these presents and in particular of any terms and provisions hereof shall be referred to the decision of a sole arbiter appointed jointly by the parties or in default of agreement to be appointed by the President of the Law Society of Scotland for the time being. The decision of such arbiter shall be final and binding on all parties.

(c)         Any dispute between the Parties hereto as to what is reasonable in the context in which that term is used in Clauses EIGHTH (a), NINTH (d), TENTH (e), ELEVENTH (c) and SEVENTEENTH shall be referred to the decision of a sole arbiter appointed jointly by the parties or in default of agreement to be appointed by the President of the Law Society of Scotland for the time being. The decision of such arbiter shall be final and binding on all parties.

(FIFTEENTH) The Proprietor, for itself and its successors in title, hereby agrees that before a new operator takes over the operation of the development from the Applicant or from a successor to the Applicant, that new operator will execute and deliver to the Planning Authority and SNH an Agreement with the Planning Authority and SNH in the form of the draft agreement contained in Annex A hereto. Such new operator will not be permitted by the Proprietor to commence operation of the development until such Agreement has been entered into.

(SIXTEENTH) The Applicant and the Proprietor agree that no entitlement to compensation shall arise against the Planning Authority or SNH as a result of any action competently taken or decision competently made by them under the terms of this Agreement.

(SEVENTEENTH) The Applicant shall meet the reasonable expenses of the Planning Authority and SNH in the preparation and execution of this Agreement, including the Stamp Duty, if any, and the recording and registration dues.

(EIGHTEENTH) Throughout this Agreement, wherever the Planning Authority and SNH are required to give their consent or approval to any action or are each required to exercise their discretion with regard to any of the conditions contained in this Agreement ,the Planning Authority and SNH undertakes not to act unreasonably in the sense in which that term was defined in Associated Provincial Picture Houses v Wednesburv Corporation [1948] 1 KB 223 and to act without any undue delay.

(NINETEENTH) Whenever the Planning Authority and SNH are required to give notice to the Applicant in terms of this Agreement, the Planning Authority and SNH shall also give notice to the Proprietor;

(TWENTIETH) If the Planning Authority has served notice on the Applicant in terms of Clause ELEVENTH (b) hereof and the Applicant has failed or failed adequately to take the required steps within the time stipulated, the Proprietor may, within three days of receiving the notice referred to in Clause ELEVENTH (c) hereof, notify the Planning Authority of the Proprietor’s intention to undertake such steps and the Proprietor shall be given such further period to undertake such steps as the Planning Authority may determine. Should the Proprietor fail to take such steps or fail adequately to take such steps within the further period of time specified, the Planning Authority and SNH may thereupon implement the terms of Clause ELEVENTH (c) hereof.

(TWENTY FIRST) In the event that either:-

(a)                  the funicular railway has ceased to be operated for a continuous period of twelve months other than for repairs or renewal and without the written consent of the Planning Authority and SNH; or

(b)                 in the event of the Applicant being in breach of the obligations to maintain in place a Guarantee, Indemnity or Bond in terms of Clause TWELFTH (a) hereof for a period of three months after the Planning Authority and SNH have given written notice to the Applicant of such breach;

then in either of these events, the Applicant will be deemed to have given notice of permanent discontinuance in terms of Clause TENTH hereof.

(TWENTY SECOND) If, for any reason, the Proprietor becomes the operator of the Development, the Proprietor hereby agrees to fulfil the terms of this Agreement as they apply to the operator of the Development save that Clause TWELFTH (a) shall not apply to Highlands and Islands Enterprise or any other successor public body but such clause shall apply to any other successor in title of Highlands and Islands Enterprise as Proprietor.

(TWENTY THIRD) The Proprietor further undertakes to take any future tenant of the Ski Area, or any part of it, bound by the terms of this Agreement and to produce evidence of this to the Planning Authority and SNH.

(TWENTY FOURTH) Highlands and Islands Enterprise agree that they will not sell or otherwise dispose of the Development Site to any other party who is not under the obligation in s.l4 of the Enterprise and New Towns (Scotland) Act 1990 (or any re-enactment thereof) without first consulting with the Planning Authority and SNH and having regard to the views of the Planning Authority and SNH in relation to the effect any disposal may have on the integrity of the proposed European Sites referred to in recitals 4 and 5 hereof.

(TWENTY FIFTH) If the funicular railway and associated buildings are dismantled and removed and the development site reinstated, all as provided in Clause TENTH, and if there is no outstanding failure by the Applicant to fulfil any of its obligations under this Agreement then the terms of this Agreement shall be discharged save that the parties hereto agree that the planning permission for the Development shall, in those circumstances, be deemed to be discontinued without any liability on the part of the Planning Authority to pay compensation.

(TWENTY SIXTH) The parties hereto consent to the registration hereof for preservation and execution IN WITNESS WHEREOF: these presents, consisting of this and the preceding thirteen pages together with annexes A and B and plans 1. 2 and 3 annexed as relative hereto, and executed as follows: they are subscribed for and on behalf of Scottish Natural Heritage Roger Crofts their Chief Executive before this witness Marion Brunton Whitelaw. Senior Personal Secretary, 12 Hope Terrace, Edinburgh both together at Edinburgh on 17th March 1997; they are sealed with the Common Seal of the Highland Council and subscribed for them and on their behalf by Alan Frank Simpson, Area Manager, Badenoch and Strathspey and authorised signatory at Kingussie on 25th March 1997; they are sealed with the Common Seal of Highlands and Islands Enterprise and subscribed for them and on their behalf by lain Alasdair Robertson, their Chief Executive before this witness, Allan MacLeod, Solicitor. 20 Bridge Street, Inverness both together at Inverness on 25th March 1997; they are subscribed for on behalf of Cairngorm Chairlift Company Limited by Walter Edgar, Company Secretary before this witness, Gordon Moggach, Accountant, 20 Bridge Street, Inverness both together at Inverness on 25th March Nineteen Hundred and Ninety Seven and they are in terns of Act of Parliament, and by authority of the Board of Directors, sealed with the Common Corporate Seal of the Governor and Company of the Bank of Scotland and subscribed for them and on their behalf by lain Malcolm Sword, Senior Manager, Legal Services Department, for and on behalf of the Governor and Company of the Bank of Scotland, before this witness lan Bell Clark, Bank of Scotland. Edinburgh both together at Edinburgh on 26th Mar 1997.

Funicular Railway

Take a spectacular journey on the UK’s highest funicular railway for views at over 3500 feet.

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Snow School

Learn the slopes at our on-site Snow School, where we can offer inclusive packages on-site that include ski passes, equipment hire and lessons all in the one place!

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