[(Note 1) ]
Dated
[(Note 2)]
(Applicant)
[(Note 3)]
(Landowner)
[(Note 3) ]
(Mortgagee)
given to
Mole Valley District Council
Contents
Definitions
Statutory Authorities and Liabilities
Conditionality
Planning Obligations
Interest and Statements of Account
Obligations after Disposal of Whole or Part
Notices
VAT
General
Local Land Charges
Contracts (Rights of Third Parties) Act 1999
Schedule 1 – The Application Site 5
Schedule 2 – The Plan 6
Schedule 3 - Planning Obligation 7
Schedule 4 – The Landowner [and Mortgagee] 8
Schedule 5 – The Application for Planning Permission 9
Attestation 10
Notes on the completion of the this Undertaking 11
Contents (1)
This Undertaking is
Dated 201and
Given by
(1)[(Note 4) ] (the Applicant)
[of (Note 5)]
[registered in England with number []
whose registered office is at[] whose principal place of business is at [ ]; [and]
(2)The Landowner as defined in Schedule 4(Note 3)[and]
(3)The Mortgageeof the Landowner as defined in Schedule 4(Note 3)
To
(4)Mole Valley District Council of Pippbrook Dorking Surrey RH4 1SJ (the Council)
Recitals
AThe 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.
BThe [Applicant] [and] [Landowner][is] [are](Note 6)registered as the freehold owner of the Application Site with title absolute at HM Land Registry under title number(s) [(Note 7) ].
C[The Applicant [has][does not have] an interest in the Application Site](Note 8)
DThe Application for Planning Permission has been made by the Applicant to the Council to develop the Application Site.
EThe Parties have agreed that the provisions herein contained should have effect in order to secure a contribution towards the provision of affordable housing in the Council’s district in accordance with the Council’s Supplementary Planning Document - Affordable Housing. This Deed reflects the form of undertaking that the Councilwill require landowners or developers to enter into in relation to all relevant sites
It is agreed:
1Definitions and Interpretation
1.1In this Deed the following expressions shall apply:
Act means the Town and Country Planning Act 1990 (as amended).
Affordable Housing meansaffordable housing as defined in Annex 2 of the National Planning Policy Framework (March 2012) or any policy revoking replacing or amending that Policy.
Affordable Housing Contribution means the sum of [(Note 10)] POUNDS and [ ] pence (£[ ]) being a contribution to the Council towards the provision of affordable housing in the Council’s district and calculated in accordance with the Supplementary Planning Document – Affordable Housing.
Application for Planning Permission means the application submitted by the Applicant on [(Note 9) ][and registered with the Council on ] seeking permission for development as described in Schedule 5 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.
Commercial Buildings means any commercial units or floorspace which the Applicant intends to build or construct on the Application Site.
Development means the development the subject of the Application for Planning Permission.
Dwellings means any residential units which the Applicant intends to build on the Application Site.
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.
Parties means (1) [the Applicant][and](2) [the Landowner][and] (3) [the Mortgagee] (Note 6)
Plan means the plan annexed at Schedule 2.
Planning Permission means a planning permission for the Development granted pursuant to the Application for Planning Permission.
Supplementary Planning Document - Affordable Housing means the document referred to in paragraph 2 of Schedule 3.
1.2 Where the context so admits words importing the singular number shall include the plural number and vice versa.
1.3Where the Parties comprise more than one person or body or where the Parties comprise one person or body but more than one person or body becomes the successor in title or otherwise derives title under that person or body of the whole or any part of the Application Site the planning obligations hereunder shall be enforceable against them jointly and severally.
2Statutory Authorities and Liabilities
2.1The obligations contained in Clause 4 and Schedule 3 of this Deed are planning obligations for the purposes of Section 106 of the Act and are enforceable by the Council.
2.2The obligations contained in Clause 4 and Schedule 3 of this Deed are entered into by the Parties with the intention that these provisions should bind its or their interests in the freehold of the Application Site as provided by Section 106 of the Act.
2.3The covenants in this Deed shall be binding on the Parties and their successors in title to the Application Site stated to be bound.
2.4The Mortgagee (if any) consents to the Applicant/Landowner entering into this Deed and acknowledges that this Deed is binding on the Application Site. The Mortgagee shall only be liable for any breach of this Deed if it has itself caused the breach whilst mortgagee in possession and it shall not be liable for any pre-existing breach (Note 6).
3Conditionality
3.1The obligations contained in Clause 4 and Schedule 3 of this Deed will not have effect unlessthe Planning Permission has been granted; but:
3.2If 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.
3.3If 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 (including in this instance the Council) against the other or others.
4Planning Obligations
4.1[The Applicant][and][the Landowner] accept(s) the restrictions and requirements in this Clause and (Note 6):
4.1.1will comply with the planning obligations set out herein and in Schedule 3 of this Deed; and
4.1.2will serve a notice upon the Council fourteen (14) days in advance of the first Material Operation taking place; and
4.1.3confirm(s) that no person other than [the Landowner][and][the Applicant] [and] [the Mortgagee] holds an interest in the Application Site; (Note 6)
4.1.4confirm(s) that the terms of this Undertaking shall apply to any subsequent planning permission granted by the Council following a determination of the Planning Permission (granted pursuant to the Application for Planning Permission) on an application made under Section 73 of the Town and Country Planning Act 1990 (or any provision revoking and re-enacting or replacing that provision).
5Interest and Statements of Account
5.1Without prejudice to any other right remedy or power herein contained or otherwise available to the Council if any payment of any sum referred to herein shall have become due but shall remain unpaid for a period exceeding thirty (30) days the Parties shall pay on demand to the Council interest thereon at the rate of five percentum (5%) above the Bank of England Base Rate from the date when the same became due until payment thereof.
6Obligations after Disposal of Whole or Part
6.1The 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 or they shall have parted with all its or their interest in the Application Site or that part in respect of which such breach occurs but without prejudice to liability for any subsisting breach of covenant prior to parting with such interest.
6.2Subject to Clause 6.3, 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 of individual Dwellings or Commercial Buildings erected or to be erected on the Application Site nor 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) only.
6.3If the Applicant or Landowner permits the occupation of any Dwellings or any part of any Commercial Buildings 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 Council, all further development on the Application Site shall cease until the breaches have been remedied to the satisfaction of the Council
7Notices
7.1Any 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 Applicant, the Landowner, and the Council shall be those stated in this Deed or such other address in England for service as the party to be served may have previously notified in writing.
7.2Each notice served in accordance with sub-clause 7.1 hereof shall be deemed to have been given or made and delivered if by personal delivery when left at the relevant address or if by letter forty eight (48) hours after posting.
8VAT
8.1All consideration given in accordance with the terms of this Deed shall be exclusive of any VAT properly payable.
8.2If 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.
9General
9.1The headings appearing in this Deed are for ease of reference only and shall not affect the construction of this Deed.
9.2For 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.
9.3Any covenant in this Deed by which the relevant Partiesare 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.
9.4Any covenant contained herein whereby the relevant Parties are 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.
9.5References 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.
9.6References to the Landowner and the Applicant 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.
10LocalLand Charges
This Deed is a Local Land Charge and shall be registered as such by the 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 re-enactment thereof and the registration shall be cancelled.
11Contracts (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.
Executed as a deed and delivered on the date appearing at the beginning of this Deed(Note 14)
Schedule 1 – The Application Site
All that piece or parcel of land at [or known as] [(Note 11) ] outlinedin red for identification purposes only on the Plan being land over which the Application for Planning Permission is made.
Schedule 2 – The Plan
(Note 12)
Schedule 3 – Planning Obligations
1.The Parties covenant with the Council so as to bind the Application Site to pay the Affordable Housing Contribution to the Council prior to the carrying out of any Material Operation.
2.The Affordable Housing Contribution is calculated in accordance with the criteria set out in the Council’s Supplementary Planning Document - Affordable Housing: A Guide for Applicants on Core Strategy Policy CS4 – February 2010 (a copy of which has been made available to the Parties)and (without prejudice to clause 5) shall be increased by an amount equivalent to the increase in the Land Registry Housing Price Index (Surrey based) from the date of this Deed until the date the payment is made.
Schedule 4 – The Landowner[and Mortgagee]
(Note 13)
Name:[ ]
Address: [ ]
Company number (if applicable): [ ]
Land Registry Title Number: [ ]
Name:[ ]
Address: [ ]
Company number (if applicable): [ ]
Land Registry Title Number: [ ]
Name:[ ]
Address: [ ]
Company number (if applicable): [ ]
Land Registry Title Number: [ ]
Name:[ ]
Address: [ ]
Company number (if applicable): [ ]
Land Registry Title Number: [ ]
Name:[ ]
Address: [ ]
Company number (if applicable): [ ]
Land Registry Title Number: [ ]
Schedule 5 – The Application for Planning Permission
1.The Application for Planning Permission is that submitted by the Applicant applying for planning permission or approval for [(Note 15) ]
2.The Application for Planning Permission[(Note 6).will be allocated a reference number by the Council commencing “MO/20../…. “ once it has been registered by the Council] [has been registered with the Council under reference number MO/20 / ]. An alternative description of theDevelopment may be agreed in writing by the Applicant and the Council at any time.
(Note 14)
THE COMMON SEAL of(name of company)
was affixed to this Deed in the presence of:
......
Director
…………………………………………………
Director/ Secretary / Common seal of the company
EXECUTED as a DEED by
(name of company)
acting by a Director and its Secretary or two Directors.
……………………………………………….
Director
………………………………………………..
Director/Secretary
SIGNED as aDEED and delivered )
by …………………………………….(name) )
in the presence of: )
W Signature: .……………………………….
I Name.: ...... ………………………………..
T Address: …….…………………………….
N …….………………………………………..
E …….………………………………….…….
S.
S Occupation: …………………………….. / …………………………………………
Signature
SIGNED as a DEED and delivered )
by …………………………………… (name) )
in the presence of: )
W Signature: ……………………………….
I Name: ...... ………………………………..
T Address: ………………………………….
N ……………………..………………………
E ……………………..……………….……...
S
S Occupation: …………………………….. / …………………………………………
Signature
Notes on the completion of the Unilateral Undertaking
*** The Council strongly recommends that all parties take independent legal advicebefore entering into this Undertaking ***
Note 1Insert the address of the Application Site.
Note 2Insert the fullnames of the Applicant for planning permission.
Note 3Insert the fullnames of all those registered as the owner of the Application Site at the Land Registry, if different to the Applicant. This should include all those with an interest in land to which Section 106 of the Town and Country Planning Act 1990 applies (including mortgagees). If the Applicant is the only landowner, delete this box. Please supply up to date Land Registry Office Copy Entries and a filed plan for all the registered titles within the Application Site. Delete references to “the Mortgagee” if there is no mortgage secured on the Application Site.
Note 4Insert the name of the Applicant for planning permission.
Note 5If the Applicant is an individual, insert his/her address after “of”. If the Applicant is a registered company, insert the company number, registered office address and (if different) the principal place of business. Delete the boxes which are not applicable.
Note 6Delete as appropriate (if the Applicant is also the sole Landowner, references to “the Landowner” can be deleted throughout)
Note 7Insert the Land Registry title number(s) for each title to the land comprising the Application Site.
Note 8This recital should be amendedto show whether or not the Applicant has a legal interest in the title or part of the title to the Application Site where the Applicant is not also the Landowner.
Note 9Insert the date that the Application for Planning Permission was submitted to the Council and the date it was registered by the Council – delete the second part if the application has not been registered yet.
Note 10Insert the total amount of the contribution in words and in figures.
Note 11Insert a description of the Application Site (i.e. its address or location).
Note 12After this page insert a plan showing, edged in red, the boundary of the Application Site for which planning permission is being sought (sometimes referred to as the “red-line” plan).
Note 13Include the name, address, company number (if applicable) and relevant Land Registry title number for each Landowner with an interest in the Application Site. If there is a mortgage over the Application Site or any part of it, the Mortgagee should be included in Schedule 4.
Note 14The Applicant, each Landowner and the Mortgagee listed in Schedule 4 must execute this Undertaking as a Deed:
- If a party is a company then either:
(i) it can affix its common seal; or
(ii)opt not to affix its seal (or if it does not have a seal); and
in each case the Undertaking must be signed by two directors or one director and the company secretary.
- If a party is an individual, he or she should sign the undertaking in front of an independent witness. The witness should then sign his/her name next to that of the party and then print his/her full name, address and occupation.
Note 15Describe the nature of the Development including the number of residential units, together with the number of bedrooms in each, and/or the amount of new commercial floor space, as appropriate.
Page 1