SCHEDULE [NUMBER]
On-Site Open Space
Defined terms
In this Schedule, the following words and expressions have the following meanings:
“Dwelling(s)”
those dwelling(s) constructed on the Site as
part of the Development pursuant to the
Planning Permission;
“Management Company”
a limited company with the purpose of
managing the Open Space in accordance
with the Management Plan;
“Management Plan”
a scheme for the future management and
maintenance of the Open Space that
identifies the maintenance requirements for
the Open Space including all ongoing
maintenance
operations,
specifically
identifying the management objective, task
and the timing and frequency of the
operation for all the features of the Open
Space to include hard and soft landscaping,
surfacing
materials,
furniture,
play
equipment, refuse or other storage units,
signs, lighting, boundary treatments, trees,
shrubs and hedge plants and provides
details of who is to undertake the ongoing
future maintenance of the Open Space in
perpetuity;
“Occupation”
beneficial occupation of the Dwellings (and
each or any of them) comprising the
Development but not including occupation
for the purposes of fitting out, marketing,
staff training or site security and
“Occupied”
shall
be
construed
accordingly;
“Open Space”
means the recreational open space and
children’s play facilities, formal open space
and amenity green space which shall be
provided pursuant to the Open Space
Scheme PROVIDED ALWAYS that the total
area of Open Space shall be no less than [
1
] sq m;
“Open Space Scheme”
means a detailed plan and specification for
the Open Space identifying the areas of the
Site to be delivered as Open Space, the
timetable for delivery of such and including
details and specifications for works and
materials, how the Open Space will be
graded, drained, landscaped, seeded,
planted, laid out, fenced and provided safe
and fit for use by the public and specifically
in relation to the play spaces a specification
of the construction method and materials to
be used;
Provision of On-Site Open Space
1.
The Landowner covenants to submit to the Council prior to the Commencement Date
an Open Space Scheme which shall show how the Open Space shall be delivered on
the Site.
2.
The Landowner covenants not to Commence Development unless and until the Open
Space Scheme has been submitted to and approved in writing by the Council.
3.
The Landowner covenants not to permit or allow Occupation of more than 50% of the
Dwellings until the Open Space has been provided in complete accordance with the
approved Open Space Scheme for the entire Development so that it is available and
safe for immediate public use PROVIDED ALWAYS that such restriction on
Occupation of the Dwellings may be varied with the prior written approval of the
Council.
4.
The Landowner covenants not to permit or allow the use of the Open Space or any
part of it until a Royal Society for the Prevention of Accidents (or any successor body
or organisation) post installation inspection written report and evidence of
manufacturers’ warranties of at least 5 years’ duration from the date of installation of
the equipment in relation to any play space has been provided to the Council.
5.
The Landowner covenants not to permit or allow the Occupation of any Dwelling until
the Management Plan has been submitted to and approved in writing by the Council
PROVIDED THAT the Management Plan can be amended at any time with the
Council’s written consent.
6.
The Landowner covenants to maintain the Open Space in accordance with the
Management Plan approved by the Council at all times from Occupation of the
Development to the satisfaction of the Council.
7.
The Landowner covenants to keep the Open Space open, unbuilt upon (save for
permitted play equipment) and available for public recreational use in perpetuity.
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8.
The Landowner covenants to prevent the sale of any Dwelling until a Management
Company has been formed and the Landowner has provided evidence of such
formation to the Council (including a certified copy of the Memorandum and Articles of
Association of the Management Company).
9.
The Landowner covenants not to wind up the Management Company or alter its
constitution without the prior written consent of the Council unless the whole of the
Development shall have been demolished.
10.
The Landowner covenants not to permit or allow the sale, transfer grant of an option,
gift exchange in return for other property, a declaration of trust, assignment, lease or
other disposal of any individual Dwelling until the buyer of such Dwelling has been
granted membership of the Management Company.
11.
The Landowner covenants to procure that the buyer of each Dwelling shall enter into
covenants substantially in the following form direct with the Management Company
under which the buyer shall:i. covenant to pay to the Management Company a pro rata proportion
(according to the number of dwellings comprised in the Development
to be constructed on the Site) of the costs and expenses incurred by
the Management Company in respect of its administration and of
insuring and maintaining, repairing and as necessary renewing the
Open Space in accordance with the Management Plan; and
ii. covenant that upon any subsequent sale of such Dwelling to procure
that the incoming buyer shall enter into direct covenants with the
Management Company in the form of paragraphs 11(i) and 11(ii) of
this Schedule.
12.
The Landowner covenants not to permit or allow the Occupation of more than 75% of
the Dwellings unless and until the freehold interest in the Open Space has been
transferred free from incumbrances (other than as set out below and those already
existing at the date of this Deed) to the Management Company but for the avoidance
of doubt the transfer shall:i. be a transfer of the entire freehold interest of the Open Space;
ii. be free from any pre-emption or option agreement;
iii. be free from any mortgage, charge, lien or other such incumbrance;
iv. include all usual and necessary rights of way with or without vehicles;
v. be subject to rights of reasonable access to the public;
vi. reserve any usual and necessary rights to use existing services and to
lay and use new services together with any rights of entry to inspect,
repair, renew, cleanse and maintain the same;
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vii. declare that boundary structures shall belong to and be maintained by
adjoining owners;
viii. not require consideration in excess of one pound (£1);
ix. contain covenants by the Management Company in favour of the
Council and pursuant to section 33 of the Local Government
(Miscellaneous Provisions) Act 1982 to the effect that the Management
Company shall maintain, repair, replace as necessary and generally
manage the Open Space in strict accordance with the Management
Plan and the principles of good estate management to the intent that
the Open Space remains fit for purpose and available for safe use by
the public at all times during which any part of the Development is
Occupied;
x. include provisions securing the sole use of the Open Space for the
general recreational enjoyment of the public as general amenity open
space; and
xi. include a declaration that no area of the Open Space is dedicated as
public highway nor that any use by the public of any part of the Open
Space shall be taken in any way as an intention by the Owners or the
Developer to dedicate the same as highway
PROVIDED ALWAYS that such restriction on Occupation of the Dwellings may be
varied with the prior written approval of the Council.
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