PLANNING INFRASTRUCTURE CONTRIBUTION- LANDOWNER NO MORTGAGE
Unilateral Undertaking pursuant to Section 106 of the Town
and Country Planning Act 1990 relating to land at
Dated
(Landowner)
given to
Waverley Borough Council
201
Contents
1
Definitions
1
2
Recitals
3
3
Statutory Authorities
3
4
Conditionality
3
5
Planning Obligations
4
6
Interest and Statements of Account
4
7
Obligations after Disposal of Whole or Part
4
8
Notices
4
9
VAT
5
10
General
5
11
Local Land Charges
6
12
Dispute Provisions
6
13
Jurisdiction
6
14
Contracts (Rights of Third Parties) Act 1999
6
15
Costs
6
Schedule 1 - The Application Site
7
Schedule 2 - The Plan
8
Schedule 3 - Planning Obligation
9
Schedule 4 - The Landowner
10
Contents (ii)
This Undertaking is
Dated
201 and
Given by
(1) The Landowner as defined in Schedule 4
To
(2) Waverley Borough Council of Council Offices, the Burys, Godalming Surrey, GU7
1HR (the Borough Council)
It is agreed:
1
Definitions
In this Deed the following expressions shall apply:
Act means the Town and Country Planning Act 1990 (as amended).
Application for Planning Permission means the application submitted by the
Landowner with reference number WA/
/
or subsequent appeal ref
APP/R3650/A/
/
seeking permission for development of
on the
Application Site.
Application Site means the site the subject of the Application for Planning
Permission more particularly described in Schedule 1 of this Deed.
Calculation Sheet means the Calculation Sheet annexed to Schedule 3 detailing
how the Planning Infrastructure Contributions are calculated.
Commencement Date means the date on which the Development is to commence or
commences by the carrying out on the Application Site the first Material Operation
pursuant to the Planning Permission.
Commencement of Development means the carrying out of a material operation as
defined in Section 56(4) of the Act in respect of the Development and the words”
Commence Development” shall be construed accordingly and in accordance with
Section 56 (1) of the Act where the development consists of :(a)
(b)
(c)
the carrying out of operations the commencement will be when those
operations are begun
a change of use the commencement will be when the new use is implemented
both carrying out of operations and change of use the commencement will be
the earlier of the times in paragraphs (a) and (b) above
Commercial Buildings means any commercial floorspace, which the Landowner
intends to build on the Application Site.
Default Interest Rate: five percentum (5%) per annum above the Bank of England
Base Rate.
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Development means the development the subject of the Application for Planning
Permission.
Dispose means the completion of a tenancy agreement lease licence or transfer in
respect of any one or more buildings.
Due Date the date which is the Commencement Date
Dwellings mean any residential units which the Landowner intends to build on the
Application Site.
Index-Linked means the Planning Infrastructure Contributions increased in
accordance with the formula contained in Schedule 3 of this Deed.
Legal Costs Sum means the Legal Costs of the Borough Council necessarily and
reasonably incurred in reviewing preparing or completing this Deed.
Material Operation means a material operation pursuant to the Planning Permission
on the Application Site the subject of this Deed pursuant to Section 56(4)(a)-(e) of the
Act provided that for the avoidance of doubt a Material Operation shall be deemed not
to have taken place for the purposes of this Deed by any surveying ground
investigation archaeological investigations structural or advanced planting site
clearance demolition and decontamination works site preparation including earth
moving laying of sewers and services the erection of fences and hoardings and the
creation of a site compound. The undertaking of a Material Operation is considered
to be the Commencement of Development pursuant to the Planning Permission.
Occupation and Occupied mean occupation for the purposes permitted by the
Planning Permission but not including occupation by personnel engaged in
construction, fitting out or decoration or occupation for marketing or display or
occupation in relation to security operations.
Parties mean (1) the Landowner.
Plan means the plan annexed at Schedule 2.
Planning Infrastructure Contributions means the sum stated in the Calculation
Sheet being
pounds
pence (£
) Index-Linked as set out at
Schedule 3 of this Deed comprising contributions towards the infrastructure detailed
in the Planning Infrastructure Contributions SPD.
Planning Infrastructure Contributions SPD means the Planning Infrastructure
Contributions Supplementary Planning Document adopted by the Borough Council on
22nd April 2008.
Planning Permission means a planning permission for the Development granted
pursuant to the Application for Planning Permission and shall apply to any planning
permission granted on appeal against refusal of the Application for Planning
Permission and to any planning permission subsequently granted (“Subsequent
Permission”) under section 73 or 73A of the Act which permits non-compliance with
any of the conditions attached to the Permission and the Permission shall be
construed to include the Development as stated in the Subsequent Permission
PROVIDED THAT with regard to the Subsequent Permission no new material
planning considerations have arisen since the granting of the Permission that requires
a Deed of Variation to be executed in respect of the Planning Obligation(s) or a new
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Unilateral Undertaking/ Planning Agreement under Section 106 of the Act to be
executed.
2
Recitals
A The Borough Council is the local planning authority for the purposes of Section 106 of the
Act for the area within which the Application Site is situated.
B The Landowner is registered as the freehold owner of the Application Site with title
absolute at HM Land Registry under title number SY
.
C The Application for Planning Permission has been made by the Landowner to the
Borough Council to develop the Application Site.
D The Borough Council is minded to grant the Planning Permission subject to the prior
completion of this Deed.
E The Landowner has agreed that the provisions herein contained should have effect in
order to secure the proper tariff in accordance with the Planning Infrastructure
Contributions SPD. This Deed reflects the form of agreement that the Borough Council
intends to enter into in relation to all relevant sites.
3
Statutory Authorities
3.1
This Deed is made pursuant to Section 106 of the Act Section 111 of the Local
Government Act 1972 and Section 2 of the Local Government Act 2000.
3.2
The obligations contained in Clause 5 and Schedule 3 of this Deed are planning
obligations for the purposes of Section 106 of the Act and are enforceable by the
Borough Council.
3.3
The obligations contained in Clause 5 and Schedule 3 of this Deed are entered into
by the Parties with the intention that these provisions should bind their interests in
the freehold of the Application Site as provided by Section 106 of the Act.
3.4
Save where otherwise indicated and where possible pursuant to the relevant
statutory provision the covenants in this Deed shall be binding on the Parties and
their successors in title to the land stated to be bound.
4
Conditionality
4.1
The obligations contained in Clause 5 and Schedule 3 of this Deed will not have
effect unless:
4.1.1
this Deed has been duly executed and dated;
4.1.2
the Planning Permission has been granted;
4.2
If the Planning Permission shall expire prior to the carrying out of a Material
Operation or shall at any time be revoked or modified without agreement this Deed
shall forthwith determine and cease to have effect.
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4.3
5
If the Planning Permission is quashed before the carrying out of a Material
Operation then this Deed shall absolutely determine and become null and void but
without prejudice to the rights of any Party against the other.
Planning Obligations
5.1
5.1.1
The Parties accept the restrictions and requirements in this Clause and:
will comply with the planning obligations set out herein and in Schedule 3 of this
Deed; and
5.1.2 will serve a notice upon the Borough Council’s Head of Planning Service twenty eight
(28) days in advance of the first Material Operation taking place; and
5.1.3 confirm that no person other than the Parties hold an interest in this Land.
6
Interest and Statements of Account
6.1
Without prejudice to any other right remedy or power herein contained or otherwise
available to the Borough Council If the Planning Infrastructure Contributions have
not been paid to the Borough Council by the Due Date, the Parties shall pay interest
on the Planning Infrastructure Contributions for the period from the Due Date to and
including the date of payment at the Default Interest Rate.
6.2
If any payment of any sum referred to herein shall have become due but shall
remain unpaid the Parties shall pay on demand to the Borough Council the Default
Interest Rate thereon from the date when the same became due until the date of
payment thereof.
7
Obligations after Disposal of Whole or Part
7.1
The Parties shall cease to have any obligation or liability under the terms of this
Deed in relation to the Application Site or any part thereof once it shall have parted
with all its interest in the Application Site or that part thereof but without prejudice to
liability for any subsisting breach of covenant prior to parting with such interest.
7.2
Subject to Clause 7.3, notwithstanding the foregoing sub-clause the obligations
under this Deed shall not be enforceable against the persons who purchase
(including purchasers of long leases) for their own occupation by themselves or their
lessees tenants or others individual Dwellings or Commercial Buildings erected or to
be erected on the Application Site but shall not be enforceable against any statutory
undertaker or public authority which acquires any part of the Application Site or an
interest in it for the purposes of its statutory undertaking or functions (other than
housing functions).
7.3
If the Parties permit the occupation of any Dwelling or any part of any Commercial
Building in circumstances that would be a breach of the obligation in Schedule 3 of
this Deed and such obligation shall not be enforceable against the purchaser then,
on notice from the Borough Council, all further development on the Application Site
shall cease until the breaches have been remedied to the satisfaction of the
Borough Council
8
Notices
8.1
Any notice to be given hereunder shall be in writing and shall either be delivered
personally or sent by first class pre paid post. The addresses for service on the
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Parties and the Borough Council shall be those stated in this Deed or such other
address in England for service as the Parties or Borough Council may have
previously notified in writing.
8.2
9
Each notice served in accordance with sub-clause 8.1 hereof shall be deemed to
have been given or made and delivered if by delivery when left at the relevant
address or if by letter forty eight (48) hours after posting.
VAT
9.1
All consideration given in accordance with the terms of this Deed shall be exclusive
of any VAT properly payable.
9.2
If at any time VAT is or becomes chargeable in respect of any supply made in
accordance with the terms of this Deed then to the extent that VAT has not been
charged in respect of that supply the person making the supply shall have the right
to issue a VAT invoice to the person to whom the supply was made and the VAT
shall be paid accordingly.
10
General
10.1
The headings appearing in this Deed are for ease of reference only and shall not
affect the construction of this Deed.
10.2
Words importing the singular meaning where the context so admits include the plural
meaning and vice versa.
10.3
Words of the masculine gender include the feminine and neuter genders and words
denoting actual persons include companies, corporations and firms and all such words
shall be construed interchangeable in that manner.
10.4
For the avoidance of doubt the provisions of this Deed (other than those contained
in this sub-clause) shall not have any effect until this document has been dated.
10.5
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.
10.6
Wherever there is more than one person named as a party and where more than
one party undertakes an obligation all their obligations can be enforced against all of
them jointly and severally unless there is an express provision otherwise.
10.7
Any covenant in this Deed by which the relevant Party is not to do an act shall be
construed as if it were a covenant not to do or permit or suffer to be done such act.
10.8
Any covenant contained herein whereby the relevant Party is not to omit to do an act
or thing shall be construed as if it were a covenant not to omit or permit or suffer to
be omitted such act.
10.9
References to statutes by-laws regulations orders and delegated legislation shall
include any statute by-law regulation order or delegated legislation re-enacting or
made pursuant to the same.
10.10 References to the Parties include references to their successors in title as owners of
the Application Site or any part thereof and this Deed shall bind such successors in
title of the Application Site or any part thereof.
Page 5
10.11 Nothing in this Deed shall prohibit or limit the right to develop any part of the
Application Site in accordance with a planning permission (other than the Planning
Permission) granted (whether or not on appeal) after the date of this Deed but this
Deed shall apply to any planning permission subsequently granted on appeal
against the Borough Council’s refusal of the Planning Application and to any
planning permission subsequently granted (“Subsequent Permission”) under section
73 or 73A of the Act which permits non-compliance with any of the conditions
attached to the Planning Permission and the Planning Permission shall be construed
to include the Development as stated in the Subsequent Permission
11
Local Land Charges
This Deed is a Local Land Charge and shall be registered as such by the Borough
Council in the Local Land Charges Register provided that if the Planning Permission
expires unimplemented, or is revoked, or if all obligations under this Deed have been
discharged then the registered charge shall be treated as having ceased to have
effect under rule 8 of the Local Land Charges Rules 1977 or any statutory reenactment thereof and the registration shall be cancelled.
12
Dispute Provisions
12.1
In the event of any dispute or difference arising between the Parties to this Deed in
respect of any matter contained in this Deed such dispute or difference shall be
referred to an independent and suitable person holding appropriate professional
qualifications to be appointed (in the absence of an agreement) by or on behalf of
the president for the time being of the professional body chiefly relevant in England
with such matters as may be in dispute and such person shall act as an expert
whose decision shall be final and binding on the parties in the absence of manifest
error and any costs shall be payable by the parties to the dispute in such proportion
as the expert shall determine and failing such determination shall be borne by the
parties in equal shares.
12.2
The provisions of this clause shall not affect the ability of the Borough Council to
apply for and be granted any of the following: declaratory relief, injunction, specific
performance, payment of any sum, damages, and any other means of enforcing this
Deed and consequential and interim orders and relief.
13
Jurisdiction
This Deed is governed by and interpreted in accordance with the law of England and
Wales and the parties submit to the non-exclusive jurisdiction of the courts of England
and Wales.
14
Contracts (Rights of Third Parties) Act 1999
The Parties do not intend that the provisions of this Deed shall be enforceable solely
by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not
party to this Deed.
15
Costs
On the completion of this Deed the Parties shall pay to the Borough Council the Legal
Costs Sum
Page 6
Schedule 1 – The Application Site
All that piece or parcel of land comprising
, outlined red for identification purposes only
on the Plan being land in respect of which the Application for Planning Permission is made.
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Schedule 2 – The Plan
Page 8
Schedule 3 – Planning Obligation
The Parties covenant with the Borough Council so as to bind the Application Site:1
No later than 28 days before Commencement of Development to give written notice to
the Borough Council’s Head of Planning Service quoting reference number
WA/
/
of the date Development is to Commence.
2
to pay to the Borough Council on or before the Due Date the Planning Infrastructure
Contributions as at the date of this Deed calculated according to the following formulae:
Amount payable = the Planning Infrastructure Contributions x (A/B) where:
A= the figure for the Retail Prices Index (All Items) that applied immediately
preceding the date of actual payment.
B= the figure for the Retail Prices Index (All Items) that applied when the index
was last published prior to the date of this deed.
3
not to Commence the Development nor cause or permit Commencement of the
Development until the Planning Infrastructure Contributions have been paid to the
Borough Council.
4
not to Dispose of any Dwelling until the Planning Infrastructure Contributions have been
paid to the Borough Council.
5
not to occupy nor allow occupation of any Dwelling until the Planning Infrastructure
Contributions have been paid to the Borough Council.
6
to give written notice to the Borough Council no later than 28 days after the expiry of
the Planning Permission that the Planning permission has expired prior to the carrying
out of a Material Operation.
7
to pay to the Borough Council the Default Interest Rate on any sum due under this
Deed from the Due Date (in the case of the Planning Infrastructure Contributions)or the
date on which payment was due to be made (in the case of any other sums payable
under this Deed) up to and including the date of payment.
8
to pay to the Borough Council on written demand and on a full indemnity basis all
reasonable costs fees and expenses incurred or to be incurred by the Borough Council
in enforcing or otherwise securing compliance with this Undertaking in the event of any
breach non-observance or non-performance thereof by the Parties or anyone acting on
behalf of the Parties or by their successors in title.
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This page has been left blank intentionally.
Please replace with calculation sheet before submitting the undertaking
Page 10
Schedule 4 – The Landowner
Landowner
Name:
Address:
Company number (if applicable):
Land Registry Title Number:
SY
Landowner
Name:
Address:
Company number (if applicable):
Land Registry Title Number:
SY
Page 11
Executed as a deed and delivered on the date appearing at the beginning of this Deed
Signed by the said
)
)
)
)
In the presence of
)
Witness
)
Address
)
)
)
)
Occupation
)
Signed by the said
)
)
)
)
In the presence of
)
Witness
)
Address
)
)
)
)
)
Occupation
Signed by the said
)
)
)
)
In the presence of
)
Witness
)
Address
)
)
)
)
)
Occupation
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*** The Council strongly recommends that all parties take independent legal advice before
entering into this Undertaking ***
Page 13