Site – developer – legal ref.
DATED 2014
[D R A F T]
DEED OF AGREEMENT
between
HART DISTRICT COUNCIL
and
STATUTORY POWERS
Under (inter alia) Sections 106 of the Town and Country Planning Act 1990 (as amended)
DEVELOPMENT:
PLANNING APPLICATION NO:
Lisa Kirkman
Head of Commissioning and Governance
Shared Legal Services
Basingstoke and Deane Borough Council and Hart District Council
Civic Offices
London Road
Basingstoke
Hampshire
RG21 4AH
TABLE OF CONTENTS
1.DEFINITIONS
2.CONSTRUCTION OF THIS DEED
3.LEGAL BASIS
4.OWNERSHIP OF SITE
5.MISCELLANEOUS
6.WAIVER
7.INDEXATION
8.INTEREST
9.VAT
10.JURISDICTION
11.DELIVERY
12.MORTGAGEE’S CONSENT
13.NHTS CONTRIBUTION
14.LEISURE AND OPEN SPACE
15.EDUCATION
16.SPECIAL PROTECTION AREA
17.STRATEGIC ACCESS MANAGEMENT AND MONITORING
18.COMPLIANCE
CONTACT DETAILS
Subject Area / ContactPlanning Requirements / (Case Officer)
Leisure & Open Space / Carl Westby (01252) 774076
SPA / (Case Officer)
Compliance / Sharon Whittaker (01252) 774418
NHTS / Andy Savill (01252) 774218
.
THIS DEED OF AGREEMENT is made theday ofTwo thousand and Fourteen BETWEEN:
HART DISTRICT COUNCIL of CivicOffices Harlington Way Fleet Hampshire GU51 4AE ("theCouncil")[ ] (Company Registration Number [ ]) whose registered office is situate at (“the Owner”)
[(Company Registration Number [])] whose registered office is situate at [] (“the Mortgagee”)
INTRODUCTION
- The Council the Local Planning Authorities for the purposes of the Act for the area in which the Site is situated.
- The County Council is the Local Highway Authority for the area in which the Site is situated
- For the purposes of this Deed and in particular securing the contribution towards NHTS payable pursuant to clause [14] of this Deed the Council is acting as agent for the County Council
- The Owner is the freehold owner of the Site
- [The Mortgagee has the benefit of the charge referred to at clause 4.1 in respect of the Site delete as appropriate]
- Written application was made to the Council for permission to develop the Site in the manner and for the uses set out in the plans and particulars deposited with the Council and described in the Application
- This Deed is a Planning Obligation for the purposes of Section 106 of the Act
NOW THIS DEED WITNESSES AS FOLLOWS:
1.DEFINITIONS
1.1For the purposes of this Deed the following expressions shall have the following meanings:NB delete as appropriate
"the Act" / The Town and Country Planning Act 1990 (as amended)"Application" / Application reference No. [ ]for [ ]
“Commencement of Development” / The date on which any material operation (as defined in Section 56(4) of the Act) forming part of the Development begins to be carried out other than (for the purposes of this Deed and for no other purpose) operations consisting of site clearance, archaeological investigations, investigations for the purpose of assessing ground conditions, remedial work in respect of any contamination or other adverse ground conditions, diversion and laying of services, erection of any temporary means of enclosure, the temporary display of site notices or advertisements and “Commence Development” shall be construed accordingly.
"Compliance Officer" / Such Officer from time to time appointed by the Head of Regulatory Services to monitor and enforce compliance with this Deed and with the conditions attached to the Planning Permission
“Current Financial Year” / The financial year during which the contribution towards NHTS payable pursuant to this Deed is determined by the Council
“Development” / The Development of the Site as set out in the Application
“Director of Children’s Services” / Director of Children's Services for the time being to the County Council or such other officer or officers as may from time to time be primarily responsible for the provision of Children's Services to the Council.
“Education Contribution” / The amount set out in clause [15] of this Agreement as a contribution to primary and secondary education facilities
“Head of Finance” / The Head of Finance for the time being to the Council or such other officer or officers who may from time to time be primarily responsible for the financial and property affairs of the Council
“Head of Governance & Monitoring Officer” / The Head of Governance & Monitoring Officerfor the time being to the Council or such other officer or officers as may from time to time be primarily responsible for the provision of legal advice to the Council
“Head of Regulatory Services” / The Head of Regulatory Servicesfor the time being to the District Council or such other officer or officers as may from time to time be primarily responsible for the District Council’s powers duties functions and responsibilities under the Act.
“Hitches Lane SANG Land” / Land identified by the Council as suitable alternative green space (SANG) at Hitches Lane, Fleet, Hampshire
“NHTS” / North Hampshire Transport Strategy or such successor strategy and where applicable the Fleet Town Access Plan
“Relevant Index” / In respect of:
a) The education contributions the relevant index shall be the Public Sector Index (Non Housebuilding) (PUBSEC) published by the Department for Business Innovation and Skills
b) The transport contributions the relevant index shall be the “All Items” Index for Retail Prices published by the Office for National Statistics
c) The remaining contributions the relevant index shall be the All In Tender Price Index published by the Building Cost Information Service of the Royal Institution of Chartered Surveyors or any successor organisation
or in the event that all or any of the relevant indices shall be no longer published or the basis thereof be materially altered then the relevant index shall be such replacement index as the Council and/or the County Council shall specify
“Interest” / Interest at four per cent above the base lending rate of the National Westminster Bank Plc from time to time.
“Plan” / The plan annexed hereto identifying the Site
"Planning Permission" / The planning permission to be granted pursuant to the Act and pursuant to the Application
“SAMM” / The Strategic Access Management and Monitoring tariff as set out in the Thames Basin Heaths Strategic Access Management and Monitoring Project Tariff Guidance (Natural England 2010)
“SPALand” / The land designated on 9 March 2005 under the Wild Birds Directive (Council Directive 79/409/EEC or any successor statutory designation) as a Special Protection Area (SPA) to protect three species of breeding birds: Woodlark, Dartford Warbler and Nightjar being a fragmented area of European importance in the counties of Surrey, Hampshire and Berkshire
"the Site" / All that piece or parcel of land known as [ ]shown more particularly delineated and edged red on the Plan
2.CONSTRUCTION OF THIS DEED
2.1Where in this Deed reference is made to any clause, paragraph or schedule or recital such reference (unless the context otherwise requires) is a reference to a clause, paragraph or schedule or recital in this Deed.
2.2Words importing the singular meaning where the context so admits include the plural meaning and vice versa.
2.3Words 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.
2.4Wherever 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 against each individually unless there is an express provision otherwise.
2.5Any reference to an Act of Parliament shall include any modification, extension or re-enactment of that Act for the time being in force and shall include all instruments, orders, plans regulations, permissions and directions for the time being made, issued or given under that Act or deriving validity from it.
2.6References to any party to this Deed shall include the successors in title to that party and to any deriving title through or under that party and in the case of the Council the successors to its statutory functions.
2.7For the purpose of such parts of this Deed as may be subject to the rule against perpetuities the perpetuity period applicable to this Deed shall be eighty years from the date hereof
3.LEGAL BASIS
3.1This Deed is made in pursuance of Section 106 of the Act, Section 111 of the Local Government Act 1972, Section 120 of the Local Government Act 1972, Section 2 of the Local Government Act 2000, Sections 8, 9 and 609 of the Housing Act 1985 and Section 33 of the Local Government (Miscellaneous Provisions) Act 1982 and all other powers so enabling
3.2The covenants, restrictions and requirements imposed upon the Owner under this Deed create planning obligations pursuant to Section 106 of the Act and are enforceable in respect of the Site by the Council as local planning authority against the Owner
4.OWNERSHIP OF SITE
4.1The Owner HEREBY CONFIRMS AND WARRANTS that the Owner is [the registered proprietor of the Site under Title No. HP[] at the Weymouth District Land Registry] [ the owner in fee simple in possession of the Site] [subject to a Mortgage dated the [] day of [] and made between the Owner and the Mortgagee but otherwiseamend as appropriate] free from encumbrances
4.2The Owner agrees to give the Council immediate written notice of any change in ownership of any of its interests in the Site occurring before all the obligations under this Deed have been discharged such notice to give details of the transferee’s full name and address and if a company the registered office together with the area of the Site or unit of occupation purchased by reference to a plan.
5.MISCELLANEOUS
5.1The Owner shall pay to the Council on completion of this Deed the costs of the Council incurred in the negotiation, preparation and execution of this Deed.
5.2No provisions of this Deed shall be enforceable under the Contracts (Rights of Third Parties) Act 1999
5.3This Deed shall be registrable as a local land charge by the Council.
5.4Any notices shall be deemed to have been properly served if sent by recorded delivery to the principal address or registered office (as appropriate) of the relevant party.
5.5All approvals certificates consents agreements satisfactions confirmations or calculations (or anything of a similar nature) that may be requested by the Owner and/or given by the Council or its officers in accordance with this Deed shall be in addition to any other approvals consents agreements or confirmations that may be required by the Act or by any other statute or regulations, and all such approvals consents agreements satisfactions confirmations or calculations (together with all determinations as to whether for the purposes of this Deed dwellings have been occupied and/or completed) shall be at the sole discretion of the Council or its relevant officers whose decisions shall be final
5.6Following the performance and satisfaction of all the obligations contained in this Deed the Council shall upon the Owner’s written request effect the cancellation of all entries made in the Register of Local Land Charges in respect of this Deed.
5.7Insofar 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.
5.8This Deed shall cease to have effect (insofar only as it has not already been complied with) if the Planning Permission shall be quashed, revoked or otherwise withdrawn or (without the consent of the Owner) it is modified by any statutory procedure or expires prior to the Commencement of Development.
5.9No person shall be liable for any breach of any of the planning obligations or other provisions of this Deed after it shall have parted with its entire interest in the Site but without prejudice to liability for any subsisting breach arising prior to parting with such interest.
5.10Nothing in this Deed shall prohibit or limit the right to develop any part of the Site in accordance with a planning permission (other than the Planning Permission) granted (whether or not on appeal) after the date of this Deed.
5.11This Deed may be varied only by deed between the parties hereto or their respective successors in title and assigns.
6.WAIVER
6.1No waiver (whether expressed or implied) by the Council [(or the Owner)] of any breach or default in performing or observing any of the covenants terms or conditions of this Deed shall constitute a continuing waiver and no such waiver shall prevent the Council [(or the Owner)] from enforcing any of the relevant terms or conditions or for acting upon any subsequent breach or default.
7.INDEXATION
7.1Any payment due under this Deed shall be increased by an amount equivalent to the increase in the Relevant Index from the date hereof until the date on which such sum is paid.
8.INTEREST
8.1If any payment due under this Deed is paid late, Interest will be payable from the date payment is due to the date of payment.
9.VAT
9.1All consideration given in accordance with the terms of this Deed shall be exclusive of any value added tax properly payable.
10.JURISDICTION
10.1This Deed is governed by and interpreted in accordance with the law of England and Wales.
11.DELIVERY
11.1This Deed shall take effect on the date hereof.
12.MORTGAGEE’S CONSENT
12.1The Mortgagee acknowledges and declares that this Deed has been entered into by the Owner with its consent and that the Site shall be bound by the obligations contained in this Deed and that the security of the mortgage over the Site shall take effect subject to this Deed PROVIDED THAT the Mortgagee shall otherwise have no liability under this Deed unless it takes possession of the Site in which case it too will be bound by the obligations as if it were a person deriving title from the Owner.
13.NHTS CONTRIBUTION
13.1No Commencement of Development shall take place upon the Site unless and until the Owner has paid to the Council the sum of [ ] pounds (£ ) as a contribution towards NHTS
14.LEISURE AND OPEN SPACE
14.1No Commencement of Development shall take place upon the Site unless and until the Owner has paid to the Council the sum of [ ] pounds (£ ) as a contribution towardsDistrict leisure and open space
15.EDUCATION
15.1No Commencement of Development shall take place upon the Site unless and until the Owner has paid to the Council the sum of [ ] pounds(£ ) as a contribution towards the provision of primary education
15.2No Commencement of Development shall take place upon the Site unless and until the Owner has paid to the Council the sum of [ ]pounds (£ ) as a contribution towards the provision of secondary education
15.3If the Education Contribution is required to be expended other than as defined in this Agreement in order to meet the education needs of the Development the Director of Children’s Services shall be entitled in his sole discretion to apportion the Education Contribution as necessary to such educational needs
16.SPECIAL PROTECTION AREA
16.1No Commencement of Development shall take place upon the Site unless and until the Owner has paid to the Council the sum of [ ] pounds (£ ) as a contribution towards the maintenance improvement and management of the [Hitches Lane SANG Land/Blackwater and Hawley Meadows SANG Landdelete as appropriate]and access management and monitoring of SPA Land in order to mitigate the impact of the Development on SPA Land
17.STRATEGIC ACCESS MANAGEMENT AND MONITORING
17.1No Commencement of Development shall take place upon the Site unless and until the Owner has paid to the Council the sum of [ ]pounds (£ ) as a contribution towardsSAMM
18.COMPLIANCE
18.1The Owner hereby AGREES and DECLARES that permission shall be granted to authorised Officers and the Council upon reasonable notice and request and at all reasonable times (except in an emergency) and subject to any instructions which any contractor may give to ensure safety for Officers of the Council (or their nominated representatives) to gain access to the Site in order to monitor compliance with the terms of this Deed
18.2No works of construction or development whatsoever shall take place both upon the Site unless and until a meeting has been held between the Compliance Officer the developer of the Site its site agent and its contractors to (inter alia and without prejudice to the generality of the foregoing):-
18.2.1confirm and emphasise the need to comply with this Deed and the conditions attached to the Planning Permission
18.2.2confirm and explain the required mechanisms for compliance with this Deed and conditions as aforesaid
18.3The Owner agrees to give the Compliance Officer written notice at least 5 working days before Commencement of Development
IN WITNESS whereof the parties hereto have executed this Deed on the day and year first before written.
THE COMMON SEAL of HART DISTRICT COUNCIL was hereunto affixed and this document was thereby executed as a deed in the presence of: / ))
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Authorised Signatory
EXECUTED as a deed by [] acting by two directors or one director and the secretary / )
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Director
Director/ Secretary
SIGNED and DELIVERED as a DEED by the said [] in the presence of:
Witness Signature: .…………………….
Witness Name:.…………………….
Witness Address: .………………….....
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Witness Occupation: ………………….... / )
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