SOUTH HOLLAND DISTRICT COUNCIL LINCOLNSHIRE ......DATED 2016 SOUTH HOLLAND DISTRICT COUNCIL AND...
Transcript of SOUTH HOLLAND DISTRICT COUNCIL LINCOLNSHIRE ......DATED 2016 SOUTH HOLLAND DISTRICT COUNCIL AND...
DATED 2016
SOUTH HOLLAND DISTRICT COUNCIL
AND
LINCOLNSHIRE COUNTY COUNCIL
AND
ASHLEY JOHN KING
PLANNING OBLIGATION by Deed of Agreement
under Section 106 of the Town and Country Planning Act 1990
Relating to land at Manor Farm Holbeach and Planning Application
reference HO9-0521-14 Commented [SC1]: Inserted for clarity
Date 2016
BETWEEN
(1) SOUTH HOLLAND DISTRICT COUNCIL of Council Offices, Priory Road, Spalding,
PE11 2XE (“the District Council”); and
(2) LINCOLNSHIRE COUNTY COUNCIL of County Offices, Newland, Lincoln,
Lincolnshire LN1 1YQ (“the County Council”)
(3) ASHLEY JOHN KING of Tudor Lodge, Holbeach, Lincolnshire, PE12 8QD (“the
Owner”)
INTRODUCTION
(A) The District Council is the Local Planning Authority for the purposes of the Act for
the area within which the Land is situated.
(B) The County Council is the Education Authority and the Highways Authority for the
purposes of this Deed for the District within which the Land is located
(C) The Owner is the freehold owner of the Land registered under title numbers
LL239744, LL220146 and LL171271.
(D) The Owner applied to the District Council for outline planning permission for the
Land under reference H09-0521-14 for residential development for up to 900
Dwellings
(E) The District Council resolved on 1 July 2015 to grant Planning Permission for the
Development in accordance with the Application subject to the Owner entering this
Planning Agreement without which Planning Permission for the Development would
be refused
(F) The District Council and the County Council are satisfied that the planning
obligations contained in this Deed are necessary to make the Development
acceptable in planning terms fairly and reasonably relate in scale and kind to the
Development and fairly and reasonably relate in scale and kind to the Development
in accordance with regulation 122 and regulation 123 of the Community
Infrastructure Regulations 2010 as amended and may secure other planning
benefits
NOW THIS DEED WITNESSES AS FOLLOWS:
1. DEFINITIONS
For the purposes of this Deed the following expressions shall have the following
meanings:
“Act” means the Town and Country Planning Act 1990 as
amended
“Affordable Dwellings” means those Dwellings within the Development
comprising Affordable Housing being a minimum of
33% of the total number of Dwellings to be provided
as part of the Development as required by Policy HS8
of the South Holland Local Plan (July 2006)
“Affordable Housing” means affordable housing as described in Annex B of
the National Planning Policy Framework dated March
2012, or any Legislation Planning Policy Statement,
Guidance Notes or Circulars which may supersede it
or supplement it
“Affordable Housing Provider” means (a) a body whose function or aim is to provide
and manage Affordable Housing (including Affordable
Housing of the type and amount proposed within the
Development) (b) a provider (pursuant to Part 2 of the
Housing and Regeneration Act 2008) registered with
the Homes and Communities Agency or (c) an
alternative affordable housing provider (including but
not limited to a housing trust or company, a
community land trust or an almshouses society) which
has been approved by the District Council in writing
(such approval not to be unreasonably withheld or
delayed)
“Affordable Housing Scheme” means a scheme to be submitted to and approved in
writing by the District Council detailing the quantum,
tenure, mix, size and location of the Affordable
Housing for each Phase which shall have an initial
target tenure split of 70% Affordable Rent Dwellings
(which may include an element of Social Rent
Dwellings if approved in writing by the Council) and
30% Intermediate Dwellings unless otherwise agreed
between the District Council and the Owner.
“Affordable Rent Dwelling” means an Affordable Dwelling rented to an Eligible
Household by a local authority or an Affordable
Housing Provider subject to rent controls that require a
rent of no more than 80% of the local market rent
(including service charges, where applicable) and
“Affordable Rent” shall be construed accordingly
“Application” means the application for outline planning permission
validated by the District Council on 18 June 2014 for
the Development and allocated reference number
H09-0521-14
“CallConnect Bus” means a bus to serve the Development which does
not have a fixed timetable but responds to passenger
requests
“CallConnect Bus Contribution” means (subject to clause 10) the sum of forty
thousand pounds (£40,000) to be paid to the County
Council for the provision of a CallConnect Bus
“CallConnect Bus Maintenance
Contribution”
means (subject to clause 10) the sum of £290,000
(two hundred and ninety thousand pounds) to be paid
to the County Council to provide for the ongoing
operation and maintenance of the CallConnect Bus
service and if appropriate the improvement of fixed
route services and flexible services to serve the Land
“Chargee” means any mortgage or chargee of the Affordable
Housing Provider or the successors in title to such
mortgagee or chargee or any receiver or manager
(including an administrative receiver) appointed
pursuant to the Law of Property Act 1925
“Commencement of
Development”
means 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 access, site clearance,
demolition work, archaeological investigations,
investigations for the purpose of assessing ground
conditions, remedial work in respect of any
contamination or other adverse conditions the laying
or diversion of services, the erection of hoardings or
other temporary means of enclosure and the
temporary display of site notices or advertisements
and “Commence Development” shall be construed
accordingly
“Commencement Notice” means written notice to the District Council and the
County Council of the intended date of
Commencement of Development
“Development” means the residential development of the Land of up
to 900 Dwellings, with access off Hall Gate and Fen
Road, including primary school, public open space,
drainage infrastructure, landscaping, including
demolition of two dwellings and agricultural buildings
(but not listed Manor Farm and adjacent outbuildings)
pursuant to the Planning Permission.
Development Costs means the costs (including all finance and interest
charges) reasonably and properly incurred by the
Owner in the construction of the Development and
disposal of the Dwellings excluding any taxes AND
where any costs are not yet realised reasonable
estimates shall be provided
“District” means the District of South Holland
“Dwelling” means any unit of residential accommodation
constructed pursuant to the Planning Permission.
“Eligible Household” means a household whose housing needs are not met
by the market at a cost low enough for them to afford.
Determined with regard to local incomes and local
house prices and who will be proposed as the owners
and/or occupiers of an Affordable Dwelling in
accordance with a Nomination Agreement
Gross Sales Receipts means the total consideration in money or moneys
worth received for the sale of each Dwelling AND
where any Dwelling has not yet been sold the
anticipated sale price for that Dwelling shall be
included
“Homes and Communities means the Homes and Communities Agency
Agency” established under the Housing and Regeneration Act
2008 or any successor body
“Index” means All in Tender Price Index published by the
Building Cost Information Service of the Royal
Institution of Chartered Surveyors or any successor
organisation or if such index no longer exists such
other index as is agreed between the parties
“Indexation” means indexed as set out in clause 10 of this Deed
“Interest” means interest at the base rate of Barclays Bank PLC
plus 4%
“Intermediate Dwellings” means homes for sale or rent provided at a cost above
social rent but below market levels to Eligible
Households whose needs are not met by the market.
These can include shared equity (shared ownership
and equity loans) and intermediate rent, but not
Affordable Rent Dwellings.
“Land” means the land as described in Schedule 1 against
which this Deed may be enforced as shown edged red
on Plan A
“Management Company” means a company or other body approved in writing
by the District Council (such approval not to be
unreasonably withheld or delayed) who will take over
responsibility for the future maintenance of the Open
Space
“Manor Farm House” means the buildings shown shaded dark red on Plan B
“the Manor Farm House Scheme” means a scheme to be submitted and approved by the
District Council detailing the restoration of Manor Farm
House and its use as a community facility including
the timetable, plans, drawings and specifications of
the restoration project.
“the Manor Farm House
Restoration”
means the restoration of Manor Farm House in
accordance with the Manor Farm House Scheme
“Market Dwelling” means a dwelling forming part of the Development
which is general market housing for sale or rent on the
open market and which is not Affordable Housing
“the Nomination Agreement” means an agreement negotiated between the District
Council and the Affordable Housing Provider which
guarantees the Affordable Rental Dwellings will be let
on the Council’s Housing Register, either via a choice
based lettings system or some alternative route
“Occupation” and “Occupied” means 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.
“Open Space” means the open space land to be provided within each
Phase in accordance with the relevant Open Space
Scheme
“Open Space Scheme” means a scheme approved by the District Council for
the delivery and management of the Open Space
which includes details submitted and approved as part
of any reserved matters application
“Peppermint Junction
Roundabout”
means the roundabout to be constructed at the
Peppermint Junction located on the A17/A151 link
road in Holbeach and as showed shaded grey and
blue on Plan C
“Peppermint Junction
Roundabout Contribution”
Means (subject to clause 10) the sum of One Million
Pounds (£1,000,000) to be paid to the County Council
with the intention that it will be used by the County
Council towards the cost of construction of the
Peppermint Junction Roundabout
“Phase” means any Phase to be identified in the Phasing Plan
“Phasing Plan” means the plan to be submitted to and approved in
writing by the District Council as part of the discharge
of planning conditions and the submission and
approval of the reserved matters associated with the
Planning Permission
“Plan A” means the plan attached to this Deed showing the
Land and marked “Plan A”
“Plan B” means the plan attached to this Deed showing Manor
Farm House and marked “Plan B”
“Plan C” means the plan attached to this Deed showing
Peppermint Junction and marked “Plan C”
“Planning Permission” means the outline planning permission subject to
conditions to be granted by the District Council
pursuant to the Application a draft of which is
attached hereto at schedule 2
“the Primary School” means a one form entry primary school to be provided
within the Land in a location to be determined as part
of a reserved matters application.
“the Primary School Contribution” means (subject to clause 10) the sum of two million
one hundred and fifty nine thousand nine hundred and
twenty pounds (£2,159,920.00)
“the Primary School Land” means an area of land comprising 1.1 Hectares in a
location within the Land to be determined as part of a
reserved matters application
“Practical Completion” means the completion of a Dwelling or the Primary
School to a standard which is wind and watertight and
fit for its intended use in terms of heating, plumbing,
electrics and sanitation and “Practically Complete”
shall be construed accordingly
“Protected Person” means a person who:
1.1 has exercised the right to acquire pursuant to
the Housing Act 1996 or any statutory
provision for the time being in force (or any
equivalent contractual right) in respect of a
particular Affordable Dwelling;
1.2 has exercised any statutory right to buy (or
any equivalent contractual right) in respect of
a particular Affordable Dwelling;
1.3 has been granted a shared ownership lease
by the Affordable Housing Provider (or similar
arrangement where a share of the Affordable
Dwelling is owned by the tenant and a share
is owned by the Affordable Housing Provider
or other body or organisation) in respect of a
particular Affordable Dwelling and the tenant
has subsequently purchased from the
Affordable Housing Provider all the remaining
shares so that the tenant owns the entire
freehold or leasehold of the Affordable
Dwelling.
“Serviced Site Standard” means a site remediated to an appropriate standard
for use as a site for the Primary School and without
the presence of contamination or protected species
with all necessary and safe access rights (including
free and uninterrupted construction access and to
enable the secure passage of people on opening),
gas, electricity, potable water, foul and storm
drainage, telecommunications, broadband internet and
any other services of infrastructure appropriate (to an
adoptable standard where applicable) to the extent
necessary to supply the Primary School (including
necessary to supply a sprinkler installation ) together
with surface water drainage provided to accommodate
the 1 in 30 year design flow with attenuation up to 1 in
100 year plus climate change provided within the
overall development site and where any utilities are to
be adopted together with an executed agreement (if
required) with the relevant body and transferred with
confirmation that the relevant infrastructure will be
adopted without further payment to the relevant body
“Social Rent Dwelling” means an Affordable Dwelling that is “social rented
housing” as described and defined in National
Planning Policy Framework dated March 2012 or any
Planning Policy Statement Guidance Notes or
Circulars which may supersede it
“Town Centre Regeneration
Competition”
means a competition for the design of a regeneration
scheme for Holbeach Town Centre
"Town Centre Regeneration
Competition Contribution"
means (subject to clause 10) the sum of five thousand
pounds £5,000 to be paid to the District Council
towards the funding of the Town Centre Regeneration
Competition
“Traffic Signal Improvement
Contribution”
means (subject to clause 10) the sum of one hundred
and fifty thousand pounds (£150,000.00) to be used
by the County Council to provide for improvements to
the existing traffic signals and pedestrian crossing
facilities in the centre of Holbeach
Valuer means a valuer agreed in writing by the District
Council and the Owner employed by the valuation
office agency or an expert recommended by the
Homes and Communities Agency or such other
suitable and independent body approved in writing by
the District Council
Viability Review means details of the Gross Sales Receipts and the
Development Costs with full supporting documentation
prepared and certificated by the Owner as complete
and approved (any items not attributable wholly to
Gross Sales Receipts or Development Costs shall be
reasonably apportioned)
A Viability Review
1) shall include the proposed quantum, tenure,
mix, size and location of the Affordable
Housing for each Phase
2) shall include the proposed tenure split between
Affordable Rent Dwellings, (which may include
an element of Social Rent Dwellings if
approved in writing by the District Council) and
Intermediate Dwellings
3) may include proposals for provision of
Affordable Housing other than Affordable Rent
Dwellings Social Rent Dwellings and
Intermediate Dwellings so long as these are
consistent with definitions of Affordable
Housing
4) shall have regard to the District Council’s
existing and emerging policy requirements in
relation to the minimum or maximum level of
Affordable Housing to be provided when
proposing the quantum, tenure, mix, size,
location and tenure split of the Affordable
Housing
“Working Days” means any day other than a Saturday Sunday or
public or bank holiday in England
2. CONSTRUCTION OF THIS DEED
2.1 Where in this Deed reference is made to any clause, paragraph, schedule or recital
such reference (unless the context otherwise requires) is a reference to a clause,
paragraph, schedule or recital in this Deed.
2.2 Words importing the singular meaning where the context so admits include the
plural meaning and vice versa.
2.3 Words 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 interchangeably
2.4 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 against each individually unless there is an express provision
otherwise.
2.5 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 or deriving validity from it.
2.6 References 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 to the Land or any part
thereof and in the case of the District Council and the County Council, successors to
its functions.
3. LEGAL BASIS
3.1 This Deed is made pursuant to Section 106 of the Act, Section 111 of the Local
Government Act 1972 and Section 93 Local Government Act 2003 and section 1 of
the Localism Act 2011 and all other enabling powers with the intent that the
covenants and obligations shall run with the Land. The covenants, restrictions and
obligations under this Deed are planning obligations pursuant to Section 106 of the
Act and may be enforced by the District Council and the County Council.
4. CONDITIONALITY
The Deed is conditional upon:
4.1 the grant of the Planning Permission; and
4.2 the Commencement of Development
save for the provisions of Clauses 8.2, 13 and 16 (legal costs, jurisdiction and
delivery clauses) and any other relevant provisions which shall come into effect
immediately upon completion of this Deed.
5. THE OWNER'S COVENANTS
5.1 The Owner covenants with the District Council and the County Council as set out
herein
6. THE DISTRICT COUNCIL’S AND THE COUNTY COUNCIL’S COVENANTS
6.1 The District Council covenants with the Owner as set out herein.
6.2 The District Council and the County Council covenant that in relation to any 'relevant
infrastructure' (as defined by Regulation 123 of the Community Infrastructure
Regulations 2010) which is provided for or funded by this Deed, since 6 April 2010
no more than 4 obligations pursuant to s106 of the Act have been entered into which
provide for any such infrastructure project or type of infrastructure and all other
provisions of this Deed do not relate to the provision of such infrastructure project or
type of infrastructure.
6.3 The County Council covenants with the Owner as set out herein
7. NOTICES AND RECORD KEEPING
7.1 Any notices required to be served pursuant to this Deed shall be deemed to have
been properly served if delivered by hand or sent by recorded or special delivery to
the principal address or registered office (as appropriate) of the relevant party or
other such other address as may be notified by one party to other from time to time.
7.2 The Owner shall serve the Commencement Notice upon the District Council and the
County Council at least 20 Working Days prior to the Commencement of
Development.
8. MISCELLANEOUS
8.1 Nothing contained or implied in this Deed shall prejudice or affect the rights,
discretions, powers and duties of the District Council or the County Council under all
statutes by-laws statutory instruments orders and regulations in the exercise of the
functions as a local authority.
8.2 On completion of this Deed, the Owner shall pay to the District Council and the
County Council their reasonable legal costs that have been incurred in the
negotiation and completion of this Deed
8.3 Except in relation to successors in title as defined in this Deed no provisions of this
Deed shall be enforceable under the Contracts (Rights of Third Parties) Act 1999.
8.4 This Deed shall be registerable as a local land charge by the District Council.
8.5 Where the agreement, approval, consent or expression of satisfaction is required by
the Owner from the District Council or the County Council under the terms of this
Deed such agreement, approval, consent or expression of satisfaction shall not be
unreasonably withheld or delayed. Following the performance and satisfaction of all
the obligations contained in this Deed the District Council shall upon written request
from the Owner cancel the relevant entry in the Register of Local Land Charges .
8.6 Insofar 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.
8.7 This 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) modified by any statutory
procedure or expires prior to the Commencement of Development.
8.8 No person shall be liable for any breach of any of the planning obligations or other
provisions of this Deed after they shall have irrevocably parted with their entire
interest in the Land or part of the Land but without prejudice to liability for any
subsisting breach arising in relation to that part prior to parting with such interest.
8.9 This Deed shall not be enforceable against:
8.9.1 owners occupiers or tenants of Dwellings (other than Affordable
Dwellings in respect of the obligations contained in paragraph 1 of
Schedule 3) nor against those deriving title from them;
8.9.2 any party solely as a result of such party possessing an interest in the
Land relating to subsoil of land which has been adopted by the District
Council or the County Council or any other relevant public body as
maintainable at public expense;
8.9.3 statutory undertakers acquiring an interest in the Land for the purposes
of their undertaking;
8.10 Representatives of the District Council and the County Council may enter upon the
Land at any reasonable time upon reasonable prior written notice to ascertain
whether the terms of this Deed are being or have been complied with.
8.11 Nothing in this Deed shall prohibit or limit the right to develop any part of the Land in
accordance with a planning permission (other than the Planning Permission)
granted (whether or not on appeal) after the date of this Deed.
8.12 The District Council acknowledges the right of the Owner to submit to the District
Council a Viability Review
8.12.1 at any point following submission of first reserved matters pursuant to the Application and thereafter during the construction of the Development where the Owner considers that the financial viability of the Development is insufficient to enable the Owner to provide the Affordable Dwellings and make a competitive return so that the Development is not deliverable and
8.12.2 In accordance with the requirements of this Deed (as amended if appropriate) and
8.12.3 where this clause is operated the relevant provisions of Schedule 3 and
Schedule 4 shall apply
9. WAIVER
9.1 No waiver (whether expressed or implied) by the District Council, the County
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 District Council or the County Council or the Owner
from enforcing any of the relevant terms or conditions or for acting upon any
subsequent breach or default.
10. INDEXATION
10.1 The sums referred to in Schedules 3 to 5 shall be linked to the Index to the intent
that the actual amounts to be paid shall be the amounts of the relevant payments as
set out in Schedules 3 to 5 divided by the Index figure last published prior to 1 July
2015 multiplied by the Index figure last published before the due date for payment
and “Indexation” shall be construed accordingly.
11. INTEREST
11.1 If any payment due under this Deed is paid late, Interest will be payable from the
date payment is due to the actual date of payment.
12. VAT
12.1 Any consideration given under this Deed shall be done in such a way that the VAT
liability is borne by the Owner and not the Council.
13. JURISDICTION
13.1 This Deed is governed by and interpreted in accordance with the law of England
14. CHANGE OF OWNERSHIP
14.1 The Owner agrees with the District Council and the County Council to give the
District Council and the County Council immediate written notice of any change in
the ownership of any of its interest in the Land occurring before all the obligations
under this Deed have been discharged such notice to give details of the transferees
name and address together with details of the part of the Land disposed of
15. DISPUTE RESOLUTION
15.1 In the event of any dispute or difference arising between any of the parties to this
Deed 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 and 5 years post qualification experience to to be appointed by
agreement between the parties or in the absence of agreement as to the identity of
the person 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.
15.2 In the absence of agreement as to the appropriateness of the professional body
then such question may be referred by any party to the president for the time being
of the Royal Institution of Chartered Surveyors for him to determine the appropriate
professional body.
15.3 Any person appointed pursuant to this clause shall act as an expert and his decision
shall be final and binding on the parties in the absence of manifest error or fraud.
15.4 The expert’s costs shall be payable by the parties to the dispute in such proportion
as the expert shall determine and failing such determination shall be borne by the
parties in equal shares except in relation to any dispute referred by the Owner or the
District Council in relation to the assessment by the Valuer of the Viability Review
where the costs shall be borne by the party that submitted the matter to the expert.
15.5 Any expert shall be appointed subject to the express requirement that a decision is
reached and communicated to the relevant parties within the minimum practicable
timescale allowing for the nature and complexity of the dispute and in any event not
more than forty Working Days after appointment.
15.6 The expert shall be required to give notice to each of the said parties requiring them
to submit to him within ten Working Days written submissions and supporting
material and each party will be entitled to make a counter written submission on the
other party’s original submission within a further ten Working Days.
16. EXECUTION AND DELIVERY
16.1 This Deed is executed as a deed by the parties and is delivered on the date first
hereinbefore written
IN WITNESS whereof the parties hereto have executed this Deed on the day and year first
before written.
SCHEDULE 1
DETAILS OF THE OWNER’S TITLE, AND DESCRIPTION OF THE LAND
The Land is known as Land at Manor Farm, Fen Road, Holbeach and falling within Title
Numbers LL171271 and LL239744 and LL220146 shown edged red on Plan A
SCHEDULE 2
DRAFT PLANNING CONDITIONS
SCHEDULE 3
The Owner’s Covenants with the District Council and the County Council
A. The Owner covenants with the District Council
1. AFFORDABLE HOUSING
1.1 Prior to Commencement of Development of any Phase the Affordable Housing
Scheme shall be submitted to the District Council in writing for approval.
1.2 Not to Occupy or permit the Occupation of more than 40% of the Market Dwellings
in each Phase until the construction of all Affordable Dwellings has been
commenced in accordance with the Affordable Housing Scheme in respect of the
relevant Phase and written notification of that commencement has been received by
the District Council
1.3 Not to Occupy or permit the Occupation of more than 60% of the Market Dwellings
in each Phase until the construction of all Affordable Dwellings has been certified
Practically Complete and has been transferred to the Affordable Housing Provider
1.4 The transfer to the Affordable Housing Provider shall be in accordance with
paragraph 1.5 below and should the Affordable Housing Provider be a provider
(pursuant to Part 2 of the Housing and Regeneration Act 2008) registered with the
Homes and Communities Agency on terms that accord with relevant funding
requirements of the Homes and Communities Agency current at the date of
construction of the Affordable Housing.
1.5 The transfer shall contain inter alia the following:
1.5.1 a grant in favour of the Affordable Housing Provider of all rights of
access passage of services and other rights reasonably necessary for
the beneficial enjoyment of the Affordable Dwellings;
1.5.2 reservation of all rights of access and passage of services and rights of
entry reasonably necessary for the beneficial enjoyment of the retained
parts of the site;
1.5.3 a covenant by the Affordable Housing Provider not to use the transferred
Affordable Housing other than for the purposes of providing Affordable
Housing in perpetuity but subject to this paragraph 1, specifically the
exemption clauses at paragraph 1.9.
1.6 The Affordable Dwellings shall be EITHER Affordable Rent Dwellings or
Intermediate Dwellings or a combination thereof in accordance with the Affordable
Housing Scheme for the relevant Phase
1.7 All Affordable Housing must be constructed to meet or exceed the Design and
Quality Standards in force at the time of Commencement of Development or in
accordance with such other guidance as shall be issued by the Homes and
Communities Agency or its successor and approved in writing by the District Council
HOWEVER in the absence of such guidance or standards shall be constructed to a
standard agreed in writing with the District Council.
1.8 From the date of Practical Completion of the Affordable Dwellings in each Phase
they shall not be used other than for Affordable Housing save that this obligation
shall not be binding on:
1.8.1 any Protected Person or any mortgagee of a Protected Person or any
person deriving title from a Protected Person or any successor in title
thereto and their respective mortgagees and chargees; or
1.8.2 any Chargee provided that the Chargee shall have first complied with
the Chargee’s Duty at 1.9 below and
1.8.3 any purchaser from a mortgagee of an individual Affordable Dwelling
pursuant to any default by the individual mortgagor
1.9 The Chargee shall prior to seeking to dispose of the Affordable Dwellings pursuant
to any default under the terms of its mortgage or charge give not less than three
months prior notice to the District Council of its intention to dispose and:
1.9.1 in the event that the District Council responds within two months from
receipt of the notice indicating that arrangements for the transfer of the
Affordable Dwellings (on the basis the Chargee can recover or have the
Affordable Housing Provider take responsibility for any outstanding debt)
can be made in such a way as to safeguard them as Affordable Housing
then the Chargee shall co-operate with such arrangement and use its
best endeavours to secure such transfer
1.9.2 if the District Council does not serve its response to the notice served
under sub-paragraph 1.9.1 of this schedule within the two months then
the Chargee shall be entitled to dispose of the Affordable Dwellings free
of the restrictions set out in this schedule
1.9.3 if the District Council or any other person cannot within two months of
the date of service of its response under sub-paragraph 1.9.1 of this
schedule secure such transfer then provided that the Chargee shall have
complied with its obligations under sub-paragraph 1.9.1 of this schedule
the Chargee shall be entitled to dispose of the Affordable Dwellings free
of the restrictions set out in this schedule PROVIDED ALWAYS that the
chargee shall not be required to act contrary to the charge or in a way
which means that the debt protected by the mortgage or charge shall not
be repaid in full
2. OPEN SPACE
2.1 Not to Commence Development of any Phase unless and until the Open Space
Scheme for that Phase has been submitted to the District Council for approval
2.2 Not to Occupy or permit the Occupation of any Dwelling in each Phase unless and
until the Open Space Scheme for the relevant Phase has been approved by the
District Council
2.3 Not to Occupy or permit the Occupation of more than 60% of the Dwellings in each
Phase unless and until the Open Space has been transferred to a Management
Company
3. MANOR FARM
3.1 Not to Occupy any Dwelling within the Development unless and until the Manor
Farm House Scheme has been submitted to the District Council
3.2 Unless otherwise agreed in writing with the District Council not to Occupy any
Dwelling within the Development until the Manor Farm House Scheme has been
approved in writing by the District Council or is deemed to be approved in
accordance with paragraph 4 of Schedule 4
3.3 Unless otherwise agreed in writing with the District Council not to Occupy or permit
the Occupation of the last Dwelling of the relevant Phase containing the Manor Farm
House unless and until the Manor Farm House Restoration has been completed in
accordance with the Manor Farm House Scheme to the satisfaction of the District
Council and the Owner has received the District Council’s written notification that the
Manor Farm House Restoration has been satisfactorily completed
4. TOWN CENTRE REGENERATION COMPETITION CONTRIBUTION
4.1 Not to Commence Development unless and until the Town Centre Regeneration
Competition Contribution has been paid in full to the District Council
5. VIABILITY REVIEW
5.1 Where the Owner has submitted to the District Council a Viability Review and where the Valuer seeks from the Owner further information or evidence within 10 Working Days from the date of receipt by the Valuer of the Viability Review then the Owner shall provide to the Valuer within 15 Working Days of demand such further information or evidence as the Valuer deems reasonably necessary to verify the accuracy or appropriateness of the Viability Review but no request for further information or evidence may be submitted by the Valuer following the expiry of the 10 Working Day period
5.2 If the Owner fails to provide such further information or evidence as may be required
by the above paragraph within the 15 Working Day period the Viability Review shall be deemed to have failed
5.3 Once the Valuer notifies the District Council and the Owner of the result of his assessment of the Viability Review the Owner shall have a further 10 Working Days from the date of receipt of such notification within which to submit to the District Council in writing any comments or observations on the Valuer’s assessment
5.4 Upon the expiry of the 10 Working Day period referred to in the above paragraph the District Council shall have a further period of 20 Working Days within which to (a) consider the Valuer’s assessment and any comments submitted by the Owner and the appropriateness of the proposed quantum, tenure, mix, size, location and tenure split of the Affordable Housing contained within the Viability Review and (b) to notify the Owner of its decision on the Viability Review and if the District Council fails to notify the Owner of its decision within such 20 Working Day period then the Viability Review shall be deemed to be approved and an Affordable Housing Scheme for any remaining Phases shall be produced accordingly by the Owner
5.5 where the Owner disputes the Council’s decision (including where the Owner has any grievance with the Valuer’s assessment of the Viability Review) the Owner may within 20 Working Days from the date of receipt of the Council’s decision invoke the dispute provisions at clause 15
5.6 except where any dispute provisions in clause 15 are invoked by the Owner or the District Council (in which case costs shall be borne by the party that submitted the matter to the Expert) the Owner shall pay the Valuer's costs in connection with each Viability Review within 25 Working Days of demand either to the District Council or to the Valuer direct as directed by the District Council
B. The Owner covenants with the County Council
1. EDUCATION
1.1 Not to Occupy or permit the Occupation of the more than 100 Dwellings unless and
until the Primary School Land has been brought up to a Serviced Site Standard to
the satisfaction of the County Council (acting reasonably and without delay) and
transferred to the County Council in accordance with clause B(1.3) below.
1.2 To agree with the County Council (acting reasonably and without delay) the utilities
connection points and levels for the connections together with construction access
and egress to the boundaries of the Primary School Land
1.3 To notify the County Council when the site is completed to Service Site Standard
and within three months of notice being given to transfer the Primary School Land to
the County Council ;
1.3.1 For a nominal sum of £1.00, and
1.3.2 subject to a covenant in favour of the Owner that the Primary School
Land shall not be used for any purpose other than for the provision of
primary education (as defined in Section 2(1) Education Act 1996) and
any subsidiary purpose permitted for a primary school under the relevant
Education Act and
1.3.3 Including a temporary right of way in favour of the County Council to
pass and repass with or without vehicles, plant and equipment over and
along such right of way from the adopted highway to the Primary School
Land until the access is maintainable as an adopted highway
2. CALLCONNECT BUS CONTRIBUTION
2.1 Not to Occupy or permit the Occupation of more than 100 Dwellings unless and until
the CallConnect Bus Contribution has been paid in full to the County Council
3. CALLCONNECT BUS MAINTENANCE CONTRIBUTION
3.1 Not to Occupy or permit the Occupation of more than 100 Dwellings unless and until
thirty per cent of the CallConnect Bus Maintenance Contribution has been paid to
the County Council
3.2 Not to Occupy or permit the Occupation of more than 300 Dwellings unless and until
a further thirty per cent of the CallConnect Bus Maintenance Contribution has been
paid to the County Council
3.3 Not to Occupy or permit the Occupation of more than 600 Dwellings unless and until
the final 40 per cent of the CallConnect Bus Maintenance Contribution has been
paid to the County Council.
4. PEPPERMINT JUNCTION ROUNDABOUT CONTRIBUTION
4.1 Not to Occupy or permit the Occupation of more than 200 Dwellings unless and until
the Peppermint Junction Roundabout Contribution has been paid in full to the
County Council
5. TRAFFIC SIGNAL IMPROVEMENT CONTRIBUTION
5.1 Not to Occupy or permit the Occupation of more than 100 Dwellings unless and until
the Traffic Signal Improvement Contribution has been paid in full to the County
Council.
C. The Owner covenants with the District Council and the County Council as follows:
1. PRIMARY SCHOOL CONTRIBUTION
1.1 To pay to the District Council the Primary School Contribution in the following
tranches:
1.1.1 Three hundred thousand pounds (£300,000) prior to the Practical
Completion of 100 No. Dwellings
1.1.2 Three hundred thousand pounds (£300,000) prior to the Practical
Completion of 200 No. Dwellings
1.1.3 Three hundred thousand pounds (£300,000) prior to the Practical
Completion of 300 No. Dwellings
1.1.4 Three hundred thousand pounds (£300,000) prior to the Practical
Completion of 400 No. Dwellings
1.1.5 Three hundred thousand pounds (£300,000) prior to the Practical
Completion of 500 No. Dwellings
1.1.6 Three hundred thousand pounds (£300,000) prior to the Practical
Completion of 600 No. Dwellings
1.1.7 Three hundred and fifty nine thousand nine hundred and twenty pounds
(£359,920) prior to the Practical Completion of 700 No. Dwellings
2. MONITORING
2.1 for the purposes of monitoring compliance with this Deed to serve notice on the
District Council and/or the County Council in accordance with clause 7.1 notifying
(a) the District Council and the County Council of the Commencement of
Development as required under clause 7.2 and
(b) the District Council of the Commencement of Development of each Phase at
least 20 Working Days prior to Commencement of Development of each Phase
(c) the District Council and the County Council of the intended date of Occupation of
the fiftieth Dwelling to be Occupied immediately such date is known and of the
intended date of Occupation of each additional fiftieth Dwelling to be Occupied
thereafter
SCHEDULE 4
DISTRICT COUNCIL’S COVENANTS
A. The District Council covenants with the Owner as follows
1. The District Council shall execute and complete any transfer of land pursuant to this
Deed expeditiously.
2. The District Council shall co-operate with any Affordable Housing Provider and enter into any Nominations Agreement between the Affordable Housing Provider and the District Council.
3. Following the performance and satisfaction of all the obligations contained in this Deed the District Council shall as soon as practically possible effect the cancellation of all entries made in the Register of Local Land Charges in respect of this Deed.
4. The District Council shall consider the Manor Farm House Scheme diligently, and consult any relevant consultees and shall not unreasonably withhold or delay its consent
5. The District Council hereby covenants with the Owner to hold the Town Centre Regeneration Competition Contribution in an interest bearing account and apply it and any interest accrued only towards the Town Centre Regeneration Competition
6. The District Council hereby covenants with the Owner that if the Town Centre Regeneration Competition Contribution or any part of it has not been committed towards the Town Centre Regeneration Competition within five years of the date of payment then the District Council will repay to the party who made the payment so much of the Town Centre Regeneration Competition Contribution as shall remain uncommitted together with any accrued interest thereon which has not been so committed.
7. Upon receipt of a Viability Review the District Council shall instruct the Valuer to consider the Viability Review (for the avoidance of doubt the Valuer shall assess the accuracy of the Viability Review and not the appropriateness of the tenure of the Affordable Housing which shall be dealt with by the District Council) and in so doing shall require the Valuer to notify the Owner and the District Council of the result of his assessment either within 20 Working Days from the date of receipt by the Valuer of the Viability Review or within 20 Working Days from the date of receipt of such further information or evidence as may be required under paragraph 9.1 of Schedule 3 and the District Council shall require the Valuer to notify the District Council immediately upon instruction whether or not he can comply with this requirement and where for any reason the Valuer cannot comply with this requirement the Owner and the District Council shall agree an alternative Valuer
8. Once the Valuer notifies the District Council and the Owner of the result of his assessment of the Viability Review the District Council shall allow a further 10 Working Days from the date of receipt of such notification for the Owner to submit to the District Council in writing any comments or observations on the Valuer’s assessment
9. Upon the expiry of that 10 Working Day period the District Council shall within a further period of 20 Working Days (a) consider the Valuer’s assessment and any comments submitted by the Owner and the appropriateness of the proposed quantum, tenure, mix, size, location and tenure split of the Affordable Housing contained within the Viability Review and (b) notify the Owner of its decision on the Viability Review and if the District Council fails to notify the Owner of its decision within such 20 Working Day period then the Viability Review shall be deemed to be approved
10. where the District Council disputes the assessment of the Viability Review by the Valuer the District Council may within 20 Working Days from the date of receipt of the Valuer’s notification invoke the dispute provisions at clause 15
B. The District Council hereby covenants with the Owner and the County Council as
follows:
1. PRIMARY SCHOOL CONTRIBUTION
1.1 upon receipt of the Primary School Contribution to notify the County Council in writing
that the Primary School Contribution has been received and to deposit the Primary
School Contribution in an appropriate interest bearing bank account of the District
Council (“the Account”)
1.2 that all interest on the Primary School Contribution shall be credited to the Account
and shall be used in conjunction with the Primary School Contribution for the
purposes detailed in this Deed and the Primary School Contribution together with any
interest accrued thereon in accordance with this paragraph shall collectively be called
“the Primary School Contribution Plus Interest”
1.3 not unreasonably to withhold consent to any application made by the County Council to withdraw the Primary School Contribution Plus Interest in whole or part from the Account for the purposes specified in this Deed provided that the County Council complies with the obligations on its part specified in Schedule 6
1.4 To repay to the Owner (or the person who paid that part of the said contribution if different) any unexpended part of the Primary School Contribution Plus Interest on the 5th anniversary of the payment of the final tranche of the Primary School Contribution
1.5 upon service of a notice by the County Council or by the Owner (being such Owner as made payment of the Primary School Contribution to the District Council) on the District Council in accordance with clause 7.1 of this Deed the District Council shall notify the County Council or such Owner (as appropriate) of how much of the Primary School Contribution Plus Interest remains within the Account
2. DISCHARGE OF OBLIGATIONS
2.1 At the written request of the Owner the District Council shall upon being satisfied of
the provide written confirmation of the full or partial discharge of the obligations given
for the benefit of the District Council contained in this Deed when satisfied that such
obligations have been performed.
SCHEDULE 6
THE COUNTY COUNCILS COVENANTS
A. The County Council covenants with the Owner
1. To use the Primary School Contribution and any interest accrued thereon towards
providing a Primary School on the Primary School Land
2. to hold the CallConnect Bus Contribution in an interest bearing account and apply it
and any interest accrued only towards the provision of the CallConnect Bus to serve
the Development
3. that if the CallConnect Bus Contribution has not been committed to the provision of
a CallConnect Bus within five years of the date that the payment was made, then
the County Council shall repay to the party who made the payment so much of the
CallConnect Bus Contribution as shall remain uncommitted together with Interest at
the Local Government 7 day rate from time to time as shall have accrued for the
period from the date of payment to the date of refund.
4. to hold the CallConnect Bus Maintenance Contribution in an interest bearing
account and apply it and any interest accrued only towards the maintenance of the
CallConnect Bus
5. that if the CallConnect Bus Maintenance Contribution has not been committed as
permitted by this Agreement within five years from the date that the final part of the
CallConnect Bus Maintenance contribution is paid to the County Council, the County
Council will repay to the party who made the payment so much of the CallConnect
Bus Maintenance Contribution as shall remain uncommitted together with interest at
the Local Government 7 day rate from time to time as shall have accrued for the
period from the date of payment to the date of refund.
6. to hold the Peppermint Junction Roundabout Contribution in an interest bearing account and apply it and any interest accrued only towards the provision of the Peppermint Junction Roundabout
7. that if the Peppermint Junction Roundabout Contribution or any part of it has not been committed towards the provision of the Peppermint Junction Roundabout within five years of the date the payment was made then the County Council will repay to the party who made the payment so much of the Peppermint Junction Roundabout Contribution as shall remain uncommitted together with interest at the Local Government 7 day rate from time to time as shall have accrued for the period from the date of payment to the date of refund:
8. to hold the Traffic Signal Improvement Contribution in an interest bearing account and to apply it and any interest accrued only as provided by this Agreement.
9. that if the Traffic Signals Improvement Contribution or any part of it has not been committed as provided in this Agreement within five years of the date the payment was made then the County Council will repay to the party who made the payment so much of the Traffic Signal Improvement Contribution as shall remain uncommitted together with interest at the Local Government 7 day rate from time to time as shall have accrued for the period from the date of payment to the date of refund
10. The County Council shall execute and complete any transfer of land pursuant to this
Deed expeditiously.
B. The County Council hereby covenants with the District Council
1. not to use the Primary School Contribution Plus Interest in whole or in part (it being
acknowledged by the District Council that the County Council shall have the sole and
exclusive right to use the Primary School Contribution Plus Interest) unless the
County Council shall allocate the Primary School Contribution towards the cost of
providing a Primary School on the Primary School Land AND shall first
(a) serve notice on the District Council in accordance with clause 7.1 seeking consent
for expenditure of such sum(s) as the County Council proposes to incur and providing
written evidence proving to the reasonable satisfaction of the District Council that such
expenditure is required to be spent by the County Council in accordance with the
terms of this Deed and
(b) provide such additional information as may reasonably be required by the District
Council in respect of the intended expenditure of the Primary School Contribution Plus
Interest or part thereof
2. (a) (if requested by the District Council) to provide such evidence as the District
Council may reasonably require in order to confirm that the expenditure of the
sum(s) referred to in paragraph B(1(a)) above was properly incurred in accordance
with the terms of this Deed
(b) to return to the Account any unspent portion of the sum(s) referred to in paragraph
B(1(a)) above
The COMMON SEAL of SOUTH )
HOLLAND DISTRICT COUNCIL )
was hereunto affixed )
in the presence of:- )
Authorised Signatory
The COMMON SEAL of
LINCOLNSHIRE COUNTY COUNCIL
was affixed in the presence of
Authorised signatory
Signed by ASHLEY JOHN KING )
in the presence of: )
Name of Witness )
Signature of witness )
Address
Occupation