Appendix 14
Draft 07 Apr 2010
Amended M&R 15 July 2010
BJF 4001861-0010
78872327_1.doc
DATED
2010
HOLLANDS SHERINGHAM LIMITED
(1)
DEED OF UNDERTAKING
Pursuant to Section 106 of the Town and Country
Planning Act 1990 (as amended)
Relating to Greenhouse Community Project,
Weybourne Road Sheringham
(14.1)
Appendix 14
THIS
DEED
[
OF
UNDERTAKING
is
made
on the
[
]
day
of
] 2010
AND IS GIVEN BY:
(1) HOLLANDS SHERINGHAM LIMITED (Co Reg Number 6767867) of Abbey Farm, the
Street, Weybourne, Norfolk NR25 7SZ (the “Owner”)
TO:
NORTH NORFOLK DISTRICT COUNCIL of Council Offices, Holt Road, Cromer Norfolk
NR27 9EN (“the Council”) and
NORFOLK COUNTY COUNCIL of County Hall, Martineau Lane Norwich Norfolk NR1 2DH
WHEREAS:
(A)
The Council is the local planning authority for the purposes of the Act for the area
within which the Site is situated.
(B)
The County Council is also a local planning authority for the said purposes for the
said area and is the local highway authority for the said area
(C)
The Owner is the registered proprietor of the Site
(D)
The Planning Application has been made to the Council and the Council is minded to
grant the Planning Permission on the basis that the Owner has agreed to execute
this deed of undertaking
NOW THIS DEED WITNESSES:
1
Definitions and Interpretation
1.1
In this Deed where the context so admits the following expressions shall have the
following meanings:
“Act”
means the Town and Country Planning Act 1990 (as amended);
“Commencement of
means the date upon which any material operation, as defined in
Development”
Section 56(4) of the Act, in connection with the Development has
begun to be carried out PROVIDED THAT the following matters
shall not constitute a material operation and consequently shall
not individually or together constitute Commencement of
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(14.2)
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Development:
(a)
demolition;
(b)
site clearance and site preparation;
(c)
the provision of infrastructure
(d)
boreholes
(e)
works of remediation
(f)
development permitted by the Town and Country
Planning General Development Order 1995 or any
amendment or replacement thereof;
(g)
construction of temporary accesses to facilitate the
carrying out of the Development;
(h)
archaeological investigations and digs;
(i)
ecological surveys investigations or assessments
(including for avoidance of doubt, any surveys,
investigations or assessments relating to bats or
voles) and ay other survey as may be required for
nature conservation purposes;
(j)
works and operations to enable any of the foregoing to
take place;
(k)
geotechnical investigation works;
and the term “Commencement of Development” shall be
construed accordingly.
Cycle Way
means the sum of £70,000 or such lesser sum as the County
Contribution
Council shall agree for the purposes of the County Council
providing a 3m wide cycle path/pedestrian link from the Site to
Sheringham town centre
“Development”
means the development of the Site for the erection of A1 (retail
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(14.3)
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supermarket) and D1 (Norfolk Food Academy ) with associated
kitchen garden, parking, landscaping and infrastructure
Electric Bus Service
means a public bus service using a bus powered by electricity
and operating between the Site, Sheringham town centre, Upper
Sheringham and Beeston Regis
Electric Bus Scheme
means a scheme for the operation of the Electric Bus Service
which shall be agreed with the Council or in the event of the
Council failing to act reasonably in considering or agreeing such
a scheme then a scheme proposed by the Owner which scheme
in any event shall include;
a) proposals for annual review of the service frequency in
consultation with a user group
b) details and membership of the user group
c) operation and terms of reference of the user group
d)
proposals for securing the service for an initial minimum
period of 5 years subject to demand
e) the routing and frequency of the Electric Bus Service
Highways Agreement
means an agreement under section 278 of the Highways Act
1980 (which may also be made under other powers within the
said act) upon reasonable terms in common use in relation to
such agreements
Occupy
means occupy for the purposes of selling goods to the public but
excluding occupation for the purposes of construction, fitting out,
security or staff training
Pedestrian Crossing
means the sum of £70,000 for the purposes of the County
Contribution
Council providing a pelican or toucan crossing on Weybourne
Road in the vicinity of the Site
“Planning Application”
means
the
application
for
planning
permission
for
the
Development submitted to the Council and given reference
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(14.4)
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number 20090777
“Planning Permission”
means planning permission granted by the Council authorising
the carrying out of the Development substantially in the form set
out in Appendix 1 to this Deed as changed if at all pursuant to
any subsequent application made pursuant to section 96A of the
Act
“Site”
means the land at Weybourne Road, Sheringham being in 2
parcels both shown edged red on the plan attached to this Deed
as is registered at the Land Registry as to part with title number
NK395259 and as to the remainder together with other land with
title number NK285588
Store
means that building forming part of the Development which is
proposed for A1 retail use
2
Interpretation
2.1
Headings appearing in this Deed are for ease of reference only and shall not affect
the construction of this Deed.
2.2
References in this Deed to clauses, sub clauses, paragraphs, sub paragraphs and
schedules are references to those contained in this Deed.
2.3
References to a statute includes any amendment, modification, extension,
consolidation or re-enactment of it and any statutory instrument, regulation or order
made under it which is for the time being in force.
2.4
Insofar as any clause or clauses of this Deed are found (for whatever reason) to be
invalid illegal or unenforceable then such invalidity illegality or unenforceability shall
not affect the validity or enforceability of the remaining provisions of this Deed
3
Limitations
3.1
No person shall be liable for breach of any provision contained in this Deed after it
shall have parted with all of its interest in the Site or part thereof in respect of which
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(14.5)
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the obligation relates but without prejudice to the liability of such person for any
subsisting breach of this Deed prior to parting with such interest.
3.2
No waiver (whether express or implied) by the Council or as the case may be the
County Council of any breach or default by the Owner or its successors in title in
performing or observing any of the covenants, undertakings, obligations or
restrictions contained in this Deed shall constitute a continuing waiver and no such
waiver shall prevent the Council or as the case may be the County Council from
enforcing any of the said covenants, undertakings, obligations or restrictions or from
acting upon any subsequent breach or default thereof.
3.3
This Deed shall come into effect upon the grant of the Planning Permission save for
paragraphs 1, 2 and 3 of the Schedule which shall not take effect until
Commencement of Development
3.4
If the Planning Permission is quashed, revoked or modified by any statutory
procedure or is withdrawn or expires before it has been implemented this Deed shall
cease to have any effect.
4
Planning Obligation
4.1
This Deed is made pursuant to section 106 of the Act
4.2
The covenants contained in clauses 5 and 6 are
planning obligations for the
purposes of section 106 of the Act and shall be enforceable by the Council and as
the case may be the County Council against the Owner and persons deriving title
from the Owner’s in relation to the Site and each and every part thereof
5
Undertaking with the Council
5.1
Subject as herein provided the Owner undertakes to the Council to observe and
perform the obligations set out in paragraph 1 of the Schedule
6
Undertaking with the County Council
6.1
Subject as herein provided the Owner undertakes to the County Council to observe
and perform the obligations set out in paragraphs 2, 3 and 4 of the Schedule
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(14.6)
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7
Contracts (Rights of Third Parties) Act 1999
7.1
The Parties intend that no terms of this Deed may be enforceable pursuant to the
contract (Rights of Third Parties) Act 1999 and that the undertaking herein contained
shall only be enforceable by the Council and the County Council (as herein provided)
IN WITNESS WHEREOF these presents have been duly exercised as a Deed by the parties
hereto the day and year first above written
Executed as a deed by HOLLANDS
)
SHERINGHAM LIMITED acting by:
)
Director’s name
Director’s signature
Director’s[/Secretary’s] name
Director’s[/Secretary’s] signature
)
)
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(14.7)
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Schedule
1
Bus Service
(a)
Not to Occupy the Store until there has been provided and is brought into
use an Electric Bus Service in accordance with the Electric Bus Scheme
(b)
2
To operate the Electric Bus in accordance with the Electric Bus Scheme
Subject to paragraph 4 and unless otherwise agreed with the County Council to pay
to the County Council the Cycle Way Contribution on the later of;
(a)
Commencement of Development; and
(b)
The completion of a Highways Agreement between the Owner and the
County Council in relation to the same in which agreement the County
Council agrees to use the Cycle Way Contribution for the purposes set out in
the definition of that term
3
Subject to paragraph 4 and unless otherwise agreed with the County Council to pay
to the County Council the Pedestrian Crossing Contribution on the later of;
(a)
Commencement of Development; and
(b)
The completion of a Highways
County Council
Agreement between the Owner and the
in relation to the same in which agreement the County
Council agrees to use the Pedestrian Crossing Contribution for the purposes
set out in the definition of that term
4
In the event that following the grant of the Planning Permission but no later than 6
months following Commencement of Development the County Council shall seek to
enter into a Highways Agreement with the Owner imposing obligations on the Owner
or other persons to carry out works in relation to either or both of the purposes
identified in paragraphs 2 and 3 and shall provide to the Owner a form of Highways
Agreement together with written confirmation from the County Council’s Head of Law
and Monitoring that the County Council is willing to enter into such a form of
Highways Agreement then the Owner shall not Occupy the Development until the
said Highways Agreement shall be executed by the Owner and any other said
persons and delivered to the County Council’s Head of Law and Monitoring and upon
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(14.8)
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such delivery the obligation in either or both of paragraphs 2 and 3 as the case may
be shall cease to have effect
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(14.9)
Appendix 14
Appendix 1
Draft Planning Permission
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(14.10)