South Lakeland District Council (1)
DATED 201*
SOUTH LAKELAND DISTRICT COUNCIL (1)
and
[****************************](2)
and
[*******************************] (3)
and
[************************************] (4)
PLANNING OBLIGATION
made pursuant to Section 106 of the
Town and Country Planning Act 1990
relating to land at [************************************]
Debbie Storr
Director of Policy and Resources (Monitoring Officer)
South Lakeland House
Lowther Street
Kendal
Cumbria
LA9 4UQ
THIS DEED is made the day of 201*
BETWEEN
(1) SOUTH LAKELAND DISTRICT COUNCIL of South Lakeland House, Lowther Street, Kendal, Cumbria, LA9 4UQ (“the Council”); and
(2) [*****************] of [***********************](“ Owner”); and
(3) [*****************] of [***********************] (“the Applicant”); and
(4) [*****************] of [***********************] (“the Bank”)
RECITALS [to be amended as appropriate]
(A)The Council is the Local Planning Authority for the purposes of the Act for the area within which the Site is located and by which the planning obligations herein contained are enforceable.
(B)The Owner is the freehold owner of the Site registered under HM Site Registry Title Number *******.
(C)The Applicant ********.
(D)The Bank has the benefit of a registered charge over the Site.
(E)The Application has been submitted to the Council by the [Owner] [Applicant]for planning permission for the Development.
(F)The Council has resolved to grant planning permission for the Development subject to the completion of this Deed.
NOW THIS DEED WITNESSES AS FOLLOWS
1. Definitions
1.1. In this Deed the following words shall have the meanings respectively assigned to them unless the context requires otherwise:
“Act” / means the Town and Country Planning Act 1990 as amended“Affordable Price” / mean as follows:
(a) on the first Disposal it shall be the Initial Price as set out in Part One of the Second Schedule to this Deed save that where the South Lakeland District Council of the Affordable House Price for the Affordable Sale Unit at the time of Practical Completion differs from that set out in part one of the Second Schedule to this Deed then the Affordable Price shall be the South Lakeland District Council Affordable House Price of the Affordable Sale Unit applicable at the date of Practical Completion; and
(b) on each and every subsequent Disposal the Affordable Price of the Affordable Sale Unit (as improved altered or modified as the case may be) shall not exceed the Appropriate Percentage of the Open Market Value of the Affordable Sale Unit applicable at the date of the contract for such Disposal; and
AND for each Disposal the certificate from a Valuer of the calculation of the Open Market Value and the Affordable Price shall be submitted to the Council’s Housing Strategy and Delivery Manager (or equivalent post) for approval (such approval not to be unreasonably withheld or delayed) prior to completion of the Disposal
“Affordable Rent” / means a rent to be no greater than the lower of 80% of the market rent or the local housing allowance (as may be updated, replaced or substituted from time to time) as approved by the Council (such approval not to be unreasonably withheld or delayed) and as may be increased annually on 1st April with the Council’s approval
“Affordable Rent Housing” / means, Affordable Rent housing which is provided to eligible households whose needs are not met by the market and which
(a) meets the needs of eligible households including availability at a cost low enough for them to afford, determined with regard to local incomes and local house prices and
(b) includes provision for the home to remain at an Affordable Rent for future eligible households
“Affordable Rented Units” / means (*) (number) dwellings as listed in Part 2 of the Second Schedule to this Deed and identified on the Plan 2 attached to this deed to be constructed in accordance with the Planning Permission or any one of such dwellings as appropriate with the Relevant Plot number, Type and Approximate Gross Internal Area as is set out in the part 2 of the Second Schedule to this Deed and to be used as provided for in the First Schedule of this Deed or any one of such dwellings as appropriate
“Affordable Sale Units” / means **** (number) dwellings as identified on the Plan 2 to this deed to be constructed in accordance with the Planning Permission to be used as provided for in the First Schedule of this Deed or any one of such dwellings as appropriate with the Relevant Plot number, Type and Approximate Gross Internal Area in respect of each of the Affordable Units as is set out in the part 1 of the Second Schedule to this Deed
“Affordable Units” / means the Affordable Sale Units and the Affordable Rented Units (or any of them)
“Application” / Means the planning application reference number SL/***** submitted to the Council on ****** to carry out the Development of the Site
“the Appropriate Percentage” / is in respect of each of the Affordable Sale Units shall mean the relevant percentage shown in the table in part one of the Second Schedule to this Deed
“Commencement Date” / Means the date of the Commencement of the Development
“Commencement of the Development” / the carrying out of a material operation in relation to the Development as defined in Section 56(4) of the Act other than (for the purposes of this Deed and for no other purpose) operations consisting of site clearance, demolition works, archaeological investigations, investigations for the purpose of assessing ground conditions, remedial work in respect of any contamination or other adverse ground conditions, erection of any temporary means of enclosure, the temporary display of site notices or advertisements and “Commence Development” shall be construed accordingly
“Development” / means the development of the Site by [******************************] in accordance with the Application
“Disposal” / means the sale of the freehold or the grant of a lease or underlease of twenty one years or more or the assignment of a lease or underlease with more than twenty one years left to run and “Dispose” shall be construed accordingly and for the sake of clarity the term “Disposal” and “Dispose” shall not include the creation of mortgages or charges
“District” / means the administrative area of the South Lakeland District Council
“Full Market Value Units” / means any of the residential units to be constructed as part of the Development which do not comprise Affordable Units, such units to be sold on the open market
“Housing Need” / means a situation where, in the opinion of the Council, a person or household (as defined in section 113 of the Housing Act 1985) does not have available to them and cannot afford to buy suitable accommodation at open market value (in relation to the Affordable Sale Units) or cannot afford to rent suitable accommodation at market rent (in the case of the Affordable Rented Units) prevailing within the Locality and:
(a) Needs to move from accommodation which is in disrepair, shared, temporary or overcrowded, or
(b) Needs to be rehoused as a result of leaving tied accommodation, or
(c) Is or includes an elderly or disabled person who needs to move due to medical conditions, or
(d) Needs to move due to special circumstances as determined by the Council’s housing allocation policy
“Initial Price” / in respect of each of the Affordable Sale Units shall mean the relevant price shown in the table in part one of the Second Schedule to this Deed
“Locality” / means the parishes of *******************************************
“Notice of Commencement of Development” / means written notification given by the Owners to the Council’s Housing Strategy and Delivery Manager (or equivalent post) of the Commencement Date
“Notice of Occupation” / means written notification given by the Owners to the Council’s Housing Strategy and Delivery Manager (or equivalent post) of first occupation of the Development
“Notice of Sales Release Date” / means written notification given by the Owners to the Council’s Housing Strategy and Delivery Manager (or equivalent post) of the date on which it proposes to release the Affordable Sale Units for sale
“Open Market Value” / means the best price as determined by a Valuer at which a Disposal of the interest in an Affordable Sale Unit might reasonably be expected to have been completed unconditionally for cash consideration on the date of valuation assuming:
(i) A willing seller and buyer;
(ii) That prior to the date of the valuation there has been a reasonable period (having regard to the nature of the Affordable Sale Unit and the state of the market) for the proper marketing of the interest for the agreement of price and terms and for the completion of the Disposal;
(iii) That the state of the market level of values and other circumstances were on any earlier assumed date of exchange of contracts the same as on the date of valuation;
(iv) That an independent valuation is carried out on the marketing of the property as new build;
(v) That any extras such as higher specification fittings are disregarded when the property is first marketed as new build;
(vi) That the restrictions imposed upon the Affordable Sale Units in or by reason of this Deed are disregarded; and
(vii) That an independent valuation is carried out three (3) months prior to the sale of the Affordable Sale Unit
“Plan 1” / means the plan annexed to this Deed marked ‘Plan 1’
“Plan 2” / means the plan annexed to this Deed marked ‘Plan 2’
“Planning Permission” / means the Planning Permission granted or to be granted in respect of the Development pursuant to the Application and the expression “Planning Permission” shall include all approvals granted thereunder
“Practical Completion” / means the date of issue of a certificate of completion of works by the Building Control Group of the Council (or equivalent) in respect of an Affordable Unit
“Qualifying Person(s)” / means a person having local connections and proven or identified Housing Need which shall be conclusively presumed in the case of a person who:
(a) has immediately prior to designation been continuously resident in the Locality for three (3) years; or
(b) has, immediately prior to designation, been “permanently employed” for a minimum of 16 hours per week in the Locality or has a firm permanent job offer for a minimum of 16 hours per week in the Locality (“permanent employment /permanently employed” includes for all purposes of the definition of a Qualifying Person contracts for a minimum of one year’s continuous employment and self-employment on provision of evidence of a viable business); or
(c) is currently in the Armed Forces and in accommodation whose location is beyond his or her control, and immediately before moving to such accommodation, had lived in the Locality for at least three (3) years; or is an existing or former member of reserve forces and suffering from a serious injury, illness or disability which is wholly or partly attributable to their service; and immediately before moving to this type of accommodation they had lived in the Locality for at least three (3) years; or
(d) is a bereaved spouse or civil partner of those serving in the regular forces and is no longer entitled to reside in Ministry of Defence accommodation and the death of their spouse or civil partner was wholly or partly attributable to their service and immediately before moving to this type of accommodation they had lived in the Locality for at least three (3) years; or
(e) is currently in prison, in hospital or similar accommodation whose location is beyond their control, who, immediately before moving to such accommodation, had lived in the Locality for at least three (3) years; or
(f) has previously lived in the Locality for a period of at least 3 years and who wishes to return to the Locality having completed a post-secondary (tertiary) education course within the previous 3 years; or
(g) needs to live in the Locality either because he/she is ill and/or needs support from a relative who lives in the Locality, or because he/she needs to give support to a relative who is ill and/or needs support and who lives in the Locality (note that, for the purposes of this qualification, proof of illness and/or need of support will be required from a medical doctor or relevant statutory support agency); or
(h) has lived in the Locality for most of his/her life and left the Locality less than 10 years ago (note that, for the purposes of this qualification, “most of his/her life” is to be interpreted as meaning over half of his/her life up to the point that he/she left the Locality, or a continuous period of 20 years up to the point that he/she left the Locality); or
(i) has lived continuously in the Locality for two(2) years or more prior to being accepted as homeless under the Homelessness Act 2003 and who has been placed in any form of temporary accommodation outside of the Locality for up to a maximum of 2 years; or
(j) has spent at least ten(10) years of their school education in the Locality;
(k) on the advice of an appropriate professional it is clear that he/ she needs to live in the Locality due to reported domestic violence, harassment and/or hate crime at a previous locality within the District and moving to the Locality will reduce the risk of harm to him/her and to enable support and/or his/her employment and educational needs to be met
PROVIDED THAT :
(i) if no persons are forthcoming as Qualifying Persons following the reasonable marketing through a local estate agent (evidence of such marketing to be supplied by the applicant and approved by the Council’s Property Services Manager or equivalent post) of an Affordable Sale Unit for a period of twelve weeks or the advertisement of an Affordable Rented Unit for a period of one month, then this definition is extended to include all persons who meet one of the above criteria (a to k) but in relation to the District rather than Locality and could not afford to acquire a home suitable for its needs at normal market values prevailing in the Locality;
(ii) if no persons are forthcoming as Qualifying Persons following advertisement of an Affordable Unit for a further period of eight weeks, then this definition is extended to include any person notwithstanding that the person does not meet any of the above criteria
PROVIDED ALWAYS for the sake of clarity that such relaxations of the definition shall apply only to that particular sale of that particular Affordable Unit and does not apply in respect of any subsequent sales of the same or any other Affordable Unit unless the circumstances in (i) or (ii) apply.
“Registered Provider” / has the meaning set out in the Housing and Regeneration Act 2008 as may be amended or replaced from time to time and any successor organisations thereto
“Residential Units” / means the Affordable Units and the Full Market Value Units (or any of them)
“Site” / means the Site against which this Deed may be enforced and being the site at ********************* as shown for identification purposes only edged red on Plan 1
“South Lakeland District Council Affordable House Price” / means the maximum initial sale prices for new affordable homes which is published and reviewed annually by South Lakeland District Council
“Valuer” / means a chartered member of the Royal Institution of Chartered Surveyors
1.2. The headings throughout this Deed are for convenience only and shall not be taken into account in the construction and interpretation of this Deed.
1.3. Reference to any clause appendix or schedule without further designation shall be construed as a reference to the clause, appendix or schedule to this Deed so numbered (as the case may be) unless a contrary intention is expressed.
1.4. Save where a contrary intention appears references to a statute or order shall include any statutory extension or modification or re-enactment of such statute or order and any regulations or others made under such statute.
1.5. 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.
1.6. Any 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 it deriving validity from it.
1.7. All references in this Deed to the identification of the Site or parts thereof by colour delineations or colourings on the Plan shall be for the purposes of identification only.
1.8. Words importing the singular meaning where the context so admits include the plural meaning and vice versa.
1.9. Words of the masculine gender include the feminine gender.
1.10. References to any party of this Deed shall include the successors in title to that party and to any person deriving title through or under that party and in the case of the Council the successor to its statutory functions.
2. planning obligations
2.1. This Deed is made pursuant to Section 106 of the Act and all enabling powers.
2.2. The covenants, restrictions and requirements imposed on the Owner under his Deed create planning obligations pursuant to Section 106 of the Act and are enforceable by the Council as local planning authority against the Owner.
3. Conditionality
3.1. This Deed is conditional upon the grant of the Planning Permission save for the provisions of clauses 2,3,5.1,6.1,6.2,6.4,6.6,6.7,6.8,6.9,6.10,6.11and 6.12 which shall come into effect immediately on completion of this Deed.
4. Planning Obligations
4.1The Owner [and the Applicant] covenant[s] with the Council as set out in the First Schedule and the Second Schedule PROVIDED THAT in the event of the sale of (an) Affordable Unit(s) pursuant to and/or as required by:
(i) an Act of Parliament;
(ii) the Homes and Communities Agency or any statutory successors or replacement body to its role as the regulator of social housing pursuant to the Housing and Regeneration Act 2008; or
(iii) an order of the court
the planning obligations created in paragraphs 1, 2 and 3 of the First Schedule to this Deed shall cease to have effect in respect of such Affordable Unit(s) and the following planning obligation in respect of such Affordable Unit(s) shall be substituted for the planning obligations created in paragraphs 1, 2 and 3 of the First Schedule:
"The Affordable Unit shall be occupied as the sole or main residence of a person who requires accommodation in the District by reason either of his/her existing residence or employment or through an established link within the District or his/her being a relative of such a person and who has been approved by the Council as having established such a link such approval not to be unreasonably withheld or delayed PROVIDED THAT if the Council does not give confirmation of whether the person is approved within 28 days of service of a written request for such approval, approval shall be deemed to have been given."