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


thirty per cent of the CallConnect Bus Maintenance Contribution has been paid to

the County Council


a further thirty per cent of the CallConnect Bus Maintenance Contribution has been

paid to the County Council


the final 40 per cent of the CallConnect Bus Maintenance Contribution has been

paid to the County Council.

4. PEPPERMINT JUNCTION ROUNDABOUT CONTRIBUTION


the Peppermint Junction Roundabout Contribution has been paid in full to the

County Council

5. TRAFFIC SIGNAL IMPROVEMENT CONTRIBUTION


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











1.1.7 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

south holland district council lincolnshire ......dated 2016 south holland district council and...

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