Given pursuant to Section 106 of the Town and Country Planning Act 1990 relating to land at
Dated 201
BY
(1)[Owner]
(2)[Developer]
[With the consent of]
(3)[Mortgagee]
TO
(4)WAVERLEY BOROUGH COUNCILTHIS UNILATERAL UNDERTAKING is given the day of 201
BY:
- of (“the Owner”)
- Company no. whose registered address is (“the Owner”)
- Company no. whose registered address is (“the Developer”)
- of (“the Developer”)
and with the consent of
- whose registered address is (“the Mortgagee”)
TO:
6.WAVERLEY BOROUGH COUNCIL of The Burys, Godalming, Surrey GU7 1HR(“the Council”)
NOW THIS DEED WITNESSETH as follows:
1. Definitions and Interpretation
1.1In this Unilateral Undertaking (hereinafter referred to as “Undertaking”) the following words and phrases shall unless the context otherwise admits or requires have the following meanings:
“the Act” / the Town and Country Planning Act 1990 as amended"Application" / the application for planning permission for development of the Land and registered by the Council under reference number// or subsequent appeal ref APP/R3650/A//
“Avoidance Strategy” / Guidance to developers contained in the Wealden Heaths Phase II Special Protection Area Hindhead Avoidance Strategy 2011 adopted by the Council,in relation to applications for planning permission for new residential development which may have an adverse effect on the SPA
“Commencement Date”
"Commencement of Development" / Means the date on which the development is to commence or commences by the carrying out on the Land a material operation pursuant to the Permission
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)the carrying out of operations the commencement will be when those operations are begun
(b)a change of use the commencement will be when the new use is implemented
(c)both carrying out of operations and change of use the commencement will be the earlier of the times in paragraphs (a) and (b) above
"Development" / the development of the Land consisting of
in accordance with the Application
“Default Interest Rate”
“Due Date” / five percentum (5%) per annum above the Bank of England Base Rate
The date which is the date of the Commencement of Development
“Dispose” / The completion of a tenancy agreement lease licence or transfer in respect of any one or more Dwellings
“Dwelling” / A house flat or apartment or maisonette (and its curtilage) forming part of the Development and “Dwellings” means more than one of the same
“Habitats Regulations” / The Conservation of Habitats and Species Regulations 2010
“Index”
"the Land" / All Items Index of Retail Prices issued by the Office for National Statistics
All that piece or parcel of land at registered at HM Land Registry under title number and shown edged red on the Plan
“Legal Costs”
“Mortgage” / mean the Legal Costs of the Council necessarily and reasonably incurred in reviewing and completing this Undertaking
a legal charge dated made between the Owner (1) and the Mortgagee (2) as the same is registered at entries andof the Charges Register of title number SY
“Occupy”
"Parties" / 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
the Owner and Developer
"Permission" / a valid planning permission for the Development granted pursuant to the Application and shall apply 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 Unilateral Undertaking/ Planning Agreement under Section 106 of the Act to be executed
"Plan" / the plan annexed to this Undertaking
“Planning Obligation” / the obligations conditions and stipulations set out in the First Schedule
“Relevant Area”
“SAMM Contribution”
“SPA” / all that part of the Council’s administrative area as described in the Hindhead Concept Statement Appended to the Avoidance Strategy
A total sum of £ for the access management and monitoring identified by Natural England
the Wealden Heaths Phase II Special Protection Area classified as a Special Protection Area in accordance with Article 4 of the EC Directive on the Conservation of Wild Birds (79/409/EEC) and given SPA EU code UK9012131
“SPA Contribution” / the total cost of (£) pounds and pence sterling to be paid by the Parties to the Council towards the promotion of alternative routes, education programmes and improvement of measures to discourage waste tipping
1.2The references to the Parties or any other legal or natural person named in this Undertaking shall include the successors in title heirs and assigns of the Parties and in the case of any Local Authority shall include any successor in function
1.3Unless otherwise stated references to clause numbers are references to clauses in this Undertaking
1.4Unless otherwise stated references to schedules and paragraph numbers of schedules are references to the schedules and paragraphs of schedules in this Undertaking
1.5The singular includes the plural and vice versa
1.6Reference to the masculine gender the feminine or neuter genders includes reference to both other genders
1.7References to persons includes natural persons and partnerships firms and unincorporated bodies corporate bodies and all other legal persons of whatever kind and however constituted
1.8References to Acts of Parliament statutory instruments or Government circulars or sections or paragraphs of any such acts statutory instruments or Government circulars include any re-enactments amendments or replacements of them
1.9Save as expressly provided by this Undertaking covenants and obligations given by any of the Parties shall attach to the Land and each and every part of it and shall bind their successors in title and assignees or any persons claiming by under or through them without limit of time
2.Recitals
Words and phrases appearing in these recitals have the meanings ascribed to them inclause 1 of this Undertaking
2.1The Ownerand/or Developer is/are the registered proprietor/sof the Land with title absolute under title number subject to the Mortgage
2.2The Developer has the benefit of an Option Agreement/Agreement for Lease/Contract for Sale/Deed of Trustdated to acquire the Land
2.3The Council is the Local Planning Authority for the purposes of Part III of the Act for the area in which the Land is situate is the local planning authority by whom this unilateral undertaking is enforceable and is a Competent Authority for the purposes of Part I of the Habitats Regulations
2.4 The Land is located within the Relevant Area
2.5Natural England as the Appropriate Nature Conservation Body for the purposes of the Habitats Regulations has advised that residential development which will lead to a net increase in the number of Dwellings within the Relevant Area should not be permitted without avoidance measures to offset the pressure on the SPA’s conservation interests of additional population within the Relevant Area
2.6The Council has produced the Avoidance Strategy to provide for such avoidance measures through the payment of contributions towards the promotion of alternative routes, education programmes and improvement of measures to discourage waste tipping
2.7The Owner and/or Developer is/are willing to make a contribution in accordance with the Avoidance Strategy as outlined above if Permission is granted
2.8The Owner and/or Developer has/have indicated a willingness to enter into such obligations upon the terms set out in this Undertaking
2.9The Mortgagee has consented to the Owner and Developer entering into this Undertaking
3.Statutory Authority
3.1This Undertaking is made in pursuance of:-
3.1.1Section 106 of the Act and the obligations contained herein are planning obligations for the purposes of that Section
4.No Restriction
Nothing in this Undertaking shall be construed as restricting the exercise by the Council of any powers exercisable by it under the Act or under any other Statutory enactment or instrument PROVIDED ALWAYSTHAT this Undertaking shall remain in full force and effect notwithstanding the terms and conditions of any planning permission which may be or has been issued by the Council or any other appropriate person or Authority pursuant to the provisions of that Act
5.Liability
No person or company shall be liable for any breach of this Undertaking after he or it shall have parted with all interest in the Land SAVE for any subsisting breach of covenant prior to parting with such interest
6.Operative Date
This Undertaking shall take effect on the completion hereof PROVIDED ALWAYS THAT if the Permission shall expire or shall be quashed in any legal proceedings or be revoked or otherwise withdrawn or (without the consent of the Owner) modified by any statutory procedure before Commencement of Development then this Deed shall (insofar only as it has not been complied with) forthwith determine and cease to have effect
7.Covenants
The Parties covenant with the Council and undertakes for themselves and their successors in title with the intention of binding the Land and each and every part therefore, to observe and perform the Planning Obligations in relation to the Land and the stipulations and restrictions set out in this Undertaking
8.Indexation
The SPA Contribution shall be linked to changes in the Indexfrom the date hereof until the dateon which such sum is paid by application of the formula in the Second Schedule
9Interest and Statements of Account
9.1Without prejudice to any other right remedy or power herein contained or otherwise available to the Council If the SPA Contributionhas not been paid to the Council by the Due Date, the Parties shall pay interest on the SPA Contribution for the period from the Due Date to and including the date of payment at the Default Interest Rate
9.2If any payment of any sum referred to herein shall have become due but shall remain unpaid the Parties shall pay on demand to the Council the Default Interest Rate thereon from the date when the same became due until the date of payment thereof
10.Third Parties
The provisions of the Contracts (Rights of Third Parties) Act 1999 are excluded from the terms of this Deed
11.Nature of This Undertaking
This Undertaking is a Local Land Charge and shall be registerable as such by the Council in its Register of Local Land Charges in accordance with the provisions of the Local Land Charges Act 1975 and Section 106 (11) of the Act
12.Legal Costs
The Parties covenant and undertake to pay on the date hereof the legal costs of the Council necessarily and reasonably incurred in the preparation and completion of this Undertaking
13.Mortgagee
13.1The Mortgagee hereby agrees that this Undertaking shall take effect as if it were executed by the Partiesand the Council and registered as a local land charge immediately prior to the Mortgage
13.2The Mortgagee shall not be liable for the observance performance or non-performance of the covenants in this Undertaking unless and until it becomes a Mortgagee in possession
13.3If the Mortgagee becomes a mortgagee in possession any liability as such will cease once it has parted with its interest in the Land
14.Scope of Covenant
Any covenant by the Parties not to do any act or thing includes a covenant not to permit nor allow the doing of that act or thing
15.Severability
It is agreed that if any part of this Undertaking shall be declared unlawful or invalid by a Court of competent jurisdiction then (to the extent possible) the remainder of this Undertaking shall remain in full force and effect
16.Waiver
No waiver (whether express or implied) by the Council of any breach or default by the Parties in performing or observing any of the terms or conditions of this Undertaking shall constitute a continuing waiver and no such waiver shall prevent the Council from enforcing any of the said terms or conditions or from acting upon any subsequent breach or default in respect thereof by the Parties
17.Warranties
The Parties warrant that:-
17.1they have a legal interest in the Land and full authority to give this Undertaking
17.2No person or body other than the Parties [and mortgagee] has an interest in the Land
17.3they have investigated as necessary all matters of title to the Land and know of no impediment to the validity of this Undertaking
17.4they shall make good any loss to the Council as a result of a breach of this warranty within seven days of a request to do so
18. Dispute Provisions
18.1In the event of any dispute or difference arising between theParties 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 suchperson shall act as an expert whose decisionshall be final and binding on theparties in the absence of manifesterror and any costs shall be payable by theparties to the dispute in such proportion as the expert shall determine and failingsuch determination shall be borne by the Parties in equal shares
18.2The provisions of this clause shall not affect the ability of the Council to apply for and be granted any of the following: declaratory relief, injunction, and specific performance, payment of any sum, damages, and any other means of enforcing this Undertaking and consequential and interim orders and relief
19Jurisdiction
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.
FIRST SCHEDULE
Owners and Developer’s Covenants
The Ownerand the Developer hereby jointly and severally covenant with the Council
1to give written notice addressed to the Council’s Head of Planning Service quoting reference number // of its intention to Commence Development not later than 28 days before Commencement of Development
2to pay to the Council the SAMM Contribution and SPA Contribution on or before the Due Date
3not to Commence Development nor cause or permit Commencement of Development until the SAMM Contribution and SPA Contribution has been paid to the Council
4to pay Interest in Default on the SAMM Contribution and SPA Contribution calculated from the Due Date or the date on which payment was due to be made under the terms of this Undertaking up to and including the date of payment
5not to Dispose of any Dwelling without having paid the SAMM Contribution and SPA Contribution
6not to occupy nor allow occupation of any Dwelling without having paid the SAMM Contribution and SPA Contribution
7to pay to the Council on written demand and on a full indemnity basis all costs fees and expenses incurred or to be incurred by the 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.
IN WITNESS whereof the parties hereto have executed this Undertaking as a Deed the day and year first before written
SIGNED as a DEED by OWNER)
in the presence of:-)
Witness
Address
Occupation
SIGNED as a DEED by OWNER)
in the presence of:-)
Witness
Address
Occupation
EXECUTED as a DEED by DEVELOPER)
acting by )
Director
Director/Secretary
EXECUTED as a DEED by the said MORTGAGEE)
In the presence of:)
Authorised Signatory
1