DATED 2015 BERKELEY HOMES (THREE VALLEYS) LIMITED …€¦ · The Mill House, The Mill Premises,...

Subject to Contract

\\Doc 14121718 S106 Agreement App A Version 6.doc

DATED 2015

BERKELEY HOMES (THREE VALLEYS) LIMITED

-and-

SOUTH BUCKS DISTRICT COUNCIL

-and-

BUCKINGHAMSHIRE COUNTY COUNCIL

PLANNING OBLIGATION

SECTION 106 AGREEMENT OF THE

TOWN AND COUNTRY PLANNING ACT 1990

The Mill House, The Mill Premises, Bucks Corner and Glen Island and Land and

Buildings on the South of Mill Lane Taplow

Head of Legal and Democratic Services South Bucks Council Council Offices Oxford Road Denham

Buckinghamshire

UB9 4LH

www.michaelronanlaw.com

Subject to Contract

100923\TAPLOW\Doc 14121601 S106 Agreement App A MR.doc Version 5.doc 1 1 Subject to Contract

THIS AGREEMENT is made the day of 2014

between

(1) Berkeley Homes (Three Valleys) Limited (Company Registration No. 5073598) whose

registered office is at Berkley House, 19 Portsmouth Road, Cobham KT11 1JGBerkley

House, 19 Portsmouth Road, Cobham KT11 1JG (“Owner”) ;

(2) South Bucks District Council of Capswood, Oxford Road, Denham, Bucks UB9 4LH ("the

Council"); and

(3) Buckinghamshire County Council of County Hall, Walton St, Aylesbury,

Buckinghamshire HP20 1UA ("the County Council")

W H E R E A S:-

(A) The Council is the Local Planning Authority for the purposes of the 1990 Act for the

area in which the Application Site is situated and is the Local Authority by whom the

planning obligations contained in this Agreement are enforceable.

(B) The County Council is the Local Education Authority and Highway Authority for the

area within which the Application Site is situated and by whom the obligations

contained in this Agreement are enforceable.

(C) The Owner is seised of the Application Site for an estate in fee simple subject to

matters recited in the Property, Proprietorship and Charges Registers of registered

Title Number BM195486 registered at the HM Land Registry

(D) The Owner has applied to the Council pursuant to the 1990 Act under Reference

14/01414/FUL for full planning permission at the Application Site for the

Development and the parties have agreed to enter into this Agreement in order to

secure the planning obligations contained in this Agreement.

Subject to Contract


(E) The Council is desirous of facilitating affordable housing pursuant to the policies of

the Council’s Adopted SBDC Local Plan, the policies of the Councils Core Strategy and

the policies of the Council’s Affordable Housing SPD.

(F) The Council is minded to grant conditional planning permission in relation to the

Application subject to the completion of a legal agreement to secure payment of the

Affordable Housing Commuted Sum Payment in lieu of the Owner providing

Affordable Housing on the Land

(G) The Council is the Local Housing Authority for the purposes of the Housing Act 1985

and the Local Housing Authority is required by Section 8 of the Housing Act 1985 to

consider housing conditions in its District and the needs of the District with respect to

the provisions of the housing accommodation

(H) The Council’s Core Strategy (Policy CP3) requires at least 40% of all dwellings in

schemes of 5 units and above (gross), or on sites of 0.16 hectares and above (where

there is a net gain in the number of dwellings) should be affordable

(I) The provision of on-site Affordable Housing has been calculated in accordance with

the Council’s Affordable SPD

(J) The Affordable Housing Commuted Sum has been calculated in accordance with the

District Council’s Affordable Housing SPD

(K) The Council resolved at a meeting of its Planning Committee on the [_date_ 2015] to

grant conditional full planning permission subject to the completion of legal

agreements to secure the provision of appropriate affordable housing on the

Application Site and an Affordable Housing Commuted Sum and Highway Works, a

Highways Contribution and an Education Contribution.

(L) The Council considers that the matters contained in this Agreement are:

(a) necessary to make the Development acceptable;

(b) directly related to the Development; and

(c) fairly related in scale and kind to the Development so that this Agreement

complies with Regulation 122 of the CIL Regulations.

Subject to Contract


(M) The Owner, is prepared to accept the conditions the Council wishes to impose on the

Planning Permission and have agreed to enter into this Agreement as a Planning

Obligation within the meaning of Section 106 of the 1990 Act to secure the provision

of Affordable Housing on the Application Site and/or Highways Works, Highways

Contribution and an Education Contribution with the intention that it shall be binding

not only upon the parties to this Agreement but also upon their successors in title and

any persons claiming through under or in trust for them

1. DEFINITIONS AND INTERPRETATION

1.1. In this Agreement the following words and phrases shall unless the context

otherwise requires have the following meanings: -

"Affordable Housing" means residential accommodation provided to Eligible

Persons whose needs are not met by the market and at a cost considered affordable:-

(a) in relation to incomes which are average or below average or

(b) in relation to the price of general market housing

and in all cases, it comprises wholly of residential dwellings:

I. where the rent or price is reduced directly or indirectly by means of a subsidy

from the public private or voluntary sector; and

II. which are provided or managed by a Registered Provider including Social

Rented Housing, Affordable Rented Housing and Intermediate Housing; and

III. will secure that it remains Affordable in Perpetuity or in the event of a

disposal of the property will allow the subsidy to be recycled for alternative

affordable housing provision.

“Affordable Housing Application Site” means the part of the Application Site where

the Affordable Housing Units are sited as shown edged in green on [Plan 2] and in

Subject to Contract


accordance with the Planning Permission and with the covenants restrictions and

obligations set out in Schedule [One] of this Agreement.

“Affordable Housing Commuted Sum” means the financial contribution due to the

Council in lieu of the shortfall of on-site provision of Affordable Housing of [_number

of AH that should be on-site] which is equivalent to the provision of 40% on-site

Affordable Housing, in the sum of is [ words ] (£ ), which is subject to the

Affordable Housing Contribution Fee. The total payment is increased by the amount

(if any) equal to the rise in the index pursuant to clause 19

“Affordable Housing Contribution Fee” means the fee charged at 3.5% of the

Affordable Housing Commuted Sum payable to the Council to cover the additional

costs for the Council in terms of calculation, negotiation and finding alternative sites

or houses. For the purposes of this Agreement the fee is charged at 3.5% of

Affordable Housing Commuted Sum Viability Appraisal Contribution amounting to [

words ] (£ ) and 3.5% of the Affordable Housing Commuted Sum Overage

Amount increased by the amount (if any) equal to the rise in the Index from the date

hereof to the date the payment is due which is payable by the Owner

"Affordable Housing Units" means [60] Housing Units shown coloured pink on Plan 2

which are to be constructed on the Application Site as part of the Development to be

used for Affordable Housing – and for the purposes of this Agreement shall mean 40

rented apartments (priority will be given to applicants aged 55+and subject to the

further provisions in this Agreement), and 20 Shared Ownership Housing units

together with any curtilage and common areas (including bin stores, cycle stores,

paths, gardens and car parking areas) and each property comprising the Affordable

Units shall be referred to in this Agreement as an ‘Affordable Housing Unit’ and all

such dwellings are to be used and made available only as Affordable Housing. The

Subject to Contract


Affordable Housing Units are to be provided to and occupied by Eligible Persons only,

in accordance with the terms of this Agreement and 'Unit' and 'Units' shall be

construed accordingly.

“Affordable Rented Housing” means Affordable Housing Units which are not

subject to the national rent regime but are subject to other rent controls which allow

them to be let at no more than 80% of Market Rent for such Units and which are to

be provided to Eligible Persons.

“ Application” means the application for planning permission for the Development in

relation to the Application Site which has been registered by the Council under

reference number 14/01414/FUL

“Application Site" means all the land and buildings thereon within the area shown

edged red on the Plan situate at The Mill House, The Mill Premises, Bucks Corner And

Glen Island And Land And Buildings On The South Of Mill Lane Taplow registered

under title number BM195486 at HM Land Registry

“BCIS All in Tender Price Index” means the Building Cost Information Service all in

tender price index published by RICS or any successor to that index from time to

time;

“Certificate of Completion” means a certificate to be issued by the Council which

shall be evidence that the relevant Open Space area has been laid out in conformity

with this Agreement to the reasonable satisfaction of the Council and the issue of a

Certificate of Completion shall commence the Maintenance Period in respect of the

relevant Open Space areas

Subject to Contract


“ CIL Regs” means the Community Infrastructure Regulations 2010 (S.I.2010 No.

948)

“Commencement of Development” means (for the Purposes of this Agreement and

for no other purpose) the date on which any material operation (as defined in Section

56(4) of the Planning Act) begins to be carried out on any part of the Application Site

PROVIDED ALWAYS THAT the following operations shall not be treated as material

operations for the purposes of this Agreement:

(i) operations consisting of archaeological investigations,

(ii) investigations for the purpose of assessing ground conditions,

(iii) remedial work in respect of any contamination or other adverse ground

conditions,

(iv) the temporary display of site notices or advertisements

(v) site clearance, demolition work, diversion and laying of services, erection of

any temporary means of enclosure

and “Commence Development” shall be construed accordingly

“Council Contribution” means the S106 Monitoring Officer Contribution, the

Affordable Housing Commuted Sum, and the Affordable Housing Contribution Fee

“Development” means A full application for planning permission and an application

for Conservation Area consent for the demolition of the existing mill buildings,

warehouses, associated structures and the former Skindles hotel to provide 141 new

dwellings and 40 senior living apartments and a restaurant; retention

and refurbishment of historic buildings on site to provide 18 further dwellings;

improvements to the existing boatyard to include boat chandlery; enhanced open

Subject to Contract


space, new pedestrian footway and cycle links, car parking, enhanced biodiversity,

flood mitigation measures, removal of TPO trees with re-provision on-site,

landscaping; , new road junction, and associated works.

“Disposal” means the sale of the freehold interest or the grant of a leasehold

interest of over ninety nine (99) years and “Disposal” and “Disposed” of shall be

construed accordingly

“Dwelling” means any of the dwellings that are to be constructed on the Application

Site pursuant to the Planning Permission

“Education Contribution” means the sum of £ 505,902 (five hundred and five thousand,

nine hundred and two pounds)() as indexed in accordance with Clause 19 paid by the

Owner to the County Council to be applied towards the provision of primary

education in the county of Buckinghamshire in accordance with Policy GP94 of the

County Council’s Local Plan and calculated in accordance with the pupil yield rates

and cost multiples in the County Council’s adopted S106 Policy. Provided that the

Education Contribution will be based on the stated formula as set out below and

adjusted (if necessary) to reflect the total numbers of Dwellings and their sizes as

approved in the detailed application relating to the Planning Permission

a. 1 Bedroom flat £418 per Dwelling

b. 2 Bedroom flat £1,432 per Dwelling

c. 3 Bedroom flat £2,849 per Dwelling

d. 1 Bedroom house £1,715 per Dwelling

e. 2 Bedroom house £3,445 per Dwelling

f. 3 Bedroom house £6,011 per Dwelling

Subject to Contract


g. 4 Bedroom+ house £7,055 per Dwelling towards the cost of providing

additional places at existing primary schools within the Vicinity of the Application

Site

“Eligible Persons” Persons on the Housing Register administered by the Council (or

who would qualify to join the Housing Register) for Affordable Housing on the date

they enter into a tenancy agreement for the Affordable Housing Unit(s) or such

persons approved by the Council in writing in its absolute discretion and “Eligible

Persons” shall be construed accordingly.

“Final Certificate” means a certificate issued by the Council which shall be

conclusive evidence that the relevant Open Space area has been accepted by the

Council as having been properly maintained during the Maintenance Period and/or

being in a condition which conforms with the relevant specification for such area

contained in this Agreement or approved under the terms of this Agreement;

“Highways Contribution” means the sum of £42,000 (fourty two thousand pounds)as

indexed in accordance with Clause 19 paid by the Owner to the County Council

payable towards highway improvement works required in the Vicinity of the

Application Site

“Highway Works” means the highway works together with any necessary ancillary

works specified in [Part A of Schedule 5 as described in Part B of Schedule 5];

“Homes and Communities Agency” means the National Housing and Regeneration

Agency for England which maintains a register of social landlords

Subject to Contract


“HSD” means the Council’s Head of Sustainable Development or such other proper

officer of the Council for the time being responsible for planning development

control in the administrative area of the Council

“Local Lettings Plan” means an agreed plan appended to this agreement at

Appendix Two for the allocation and letting of the Affordable Rented Housing to

meet specific local issues

“Maintenance Period” means a period of at least 12 (twelve) months commencing

with the issue of the Certificate of Completion and ending with the issue of the Final

Certificate in relation to the Open Space PROVIDED THAT if the Council is not able to

issue a Final Certificate due to a defect in the relevant parcel of Application Site the

Maintenance Period shall be extended until the Final Certificate is issued

“Management Services” means:

(a) maintaining, repairing, and keeping clean and available for use the Open

Space for the general benefit of the owners and occupiers of the Site;

(b) paying and discharging all taxes, charges, impositions and other outgoings

relating to the Open Space;

(c) maintaining such insurances as shall be appropriate in respect of the use of

the Open Space and against damage by those comprehensive risks as are

reasonable to insure against in the circumstances then prevailing;

(d) promoting the use of the Open Space by the owners and occupiers of the

Application Site;

(e) promoting and adopting measures to involve the residents and occupiers of

the Application Site in the long term stewardship of the Open Space;

(f) maintaining the Open Space as a safe and attractive environment; and

Subject to Contract


(g) such additional services as the Management Company may from time to time

reasonably and properly require in accordance with principles of good estate

management;

“Market Rent” mean the rent calculated in accordance with the definition of

‘Market Rent’ at Valuation Standard 3.3 of the Royal Institution of Chartered

Surveyors Appraisal and Valuation Standards (9th Edition) or any amendment or

replacement thereof

“NHS Contribution” means the sum of £39,835 (thirty nine thousand, eight hundred

and thirty five pounds) payable in accordance with clause 4.1 which shall be used by

NHS England towards the improvement of healthcare facilities which serve the

Development

“Occupation” means the occupation of the Development or any part

thereof solely for residential purposes and “Occupy” and “Occupied” shall be

construed accordingly.

“Open Market Unit” means a unit of residential accommodation comprised within

the Development excluding the Affordable Housing Units

“Open Space” means 9.6 (nine point six) hectares of open space to be laid out on the

Application Site by the Owner in accordance with the Open Space Specification as

part of the Development and whose location is shown for illustrative purposes on

Plan 3

“Open Space Management Company” means the community interest company to be

formed by the Owner and to be approved by the Council as part of the Open Space

Management Scheme

Subject to Contract


“Open Space Management Scheme” means a scheme to be prepared by the Owner

at its own cost and submitted in accordance with the provisions of paragraph 2 of

SCHEDULE FIVE hereto such scheme to include details of the Open Space

Management Company and on-going maintenance regime that will be undertaken in

Perpetuity

“Open Space Specification” means the specification titled “Open Space

Specification” which shall be submitted by the Owner to the Council for approval

detailing the method of laying out and completing the Open Space;

“Perpetuity” means the period of 125 (one hundred and twenty five) years from the

date of this Agreement;

“Planning Permission” means any planning permission subject to conditions

pursuant to the Planning Permission

“Plan 1" means the plan attached at Appendix One as Plan 1 showing the Application

Site edged in red

“Plan 2” means the plan attached at Appendix One as Plan 2 showing the Affordable

Housing Application Site edged in [green] and the Affordable Housing Units coloured

[pink]

“Plan 3” means the plan attached at Appendix One as Plan 3 showing the Open Space

“Police Contribution” means the sum of £payable in accordance with clause 4.1

which shall be used by Thames Valley Police towards the improvement of policing

facilities which serve the Development

Subject to Contract


“Protected Tenant” means a tenant who:

(a) 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 Housing Unit; or

(b) has exercised any statutory right to buy (or any equivalent contractual right)

in respect of a particular Affordable Housing Unit; or

(c) has been granted a Shared Ownership Housing Unit or a Shared Equity Housing

Unit by a Registered Provider (or similar arrangement where a share of the

Affordable Housing Unit is owned by the tenant and a share is owned by the

Registered Provider) and has purchased all the remaining shares from the

Registered Provider so that the tenant owns the entire Affordable Housing

Unit

"Registered Provider" means a social landlord registered with the Homes and

Communities Agency as a registered provider of social housing (as defined the 2008

Act) or a charitable organisation or other similar body to the above approved by the

Council in writing.

“Shared Ownership Housing” means Shared Equity Housing where a rent is paid to

the Registered Provider on its retained equity.

"Social Rented Housing" means housing (if any) provided by a Registered Provider to

Eligible Persons for which guideline target rents are determined through the national

rent regime or are provided under equivalent rental arrangements as agreed with the

Council or the Homes and Communities Agency

Subject to Contract


“SPD” means the Council's Affordable Housing Supplementary Planning Document

(including any adopted Alterations)

“Substantial Completion” means the completion of the construction and building

works in relation to the Affordable Housing Units together with appropriate access

and services such that the Affordable Housing Units are capable of and ready for

Occupation save for internal decorative finishes, domestic appliances, and furniture

and disregarding the non-completion of items of a minor nature not being such as

would reasonably inconvenience an occupier in the use and occupation of the

dwelling and which can be remedied by a competent builder with reasonable

despatch and ‘Substantially Complete’ shall be construed accordingly

“Section 106 Monitoring Officer Contribution” means the sum of £1000 (one

thousand pounds) per Contribution (excluding this Monitoring Officer Contribution)

as indexed in accordance with Clause 19 paid by the Owner to the Council -

" Senior Living Rented Apartments" means the 40 Dwellings intended for Occupation

by persons who are aged 55 years or over and shall be Affordable Rented Housing

"Sub Region" means [ ]

“Travel Plan” means a travel plan or plans prepared by the Owner and

to be approved by the Council acting reasonably to be implemented to

encourage the occupiers and/or users of the Development to use sustainable

forms of transport whilst travelling to and from the Development

Subject to Contract


“Travel Plan Annual Performance Report” means a written document

setting out the results of a review of the operation and effectiveness of a

Travel Plan during the previous 12 months and setting out any remedies or

measures that are required to be implemented to secure the objectives and

targets of that Travel Plan

“Travel Plan Coordinator” means the person who will be responsible

for implementing and monitoring the Travel Plan throughout the course of the

Development in accordance with the provisions contained in SCHEDULE FIVE

to this Deed

“Travel Plan Monitoring Fee” means the sum of [£5000 (five thousand

pounds)] to be paid by the Owner to the County Council and to be applied

towards the cost of monitoring compliance with the Travel Plan

“Travel Plan Notice” means a notice in writing by the Council served on the

Owner confirming details of a breach in the implementation or operation of a

Travel Plan

“Vicinity of the Application Site” means within a [5] mile radius of the Application

Site

“Working Days” means any day other than a Saturday, a Sunday, Christmas Day,

Good Friday or a day which is a bank holiday under the Banking and Financial Dealings

Act 1971 in any part of the United Kingdom

Subject to Contract


"1990 Act" means the Town and Country Planning Act 1990 as amended by

subsequent legislation

“2008 Act” means the Housing and Regeneration Act 2008

1.2. In this agreement:

1.2.1. The singular shall include the plural and vice versa and the masculine gender

shall include the female and vice versa and words denoting natural persons

shall include companies and corporations and vice versa and where there is

more than one covenantor all obligations of such covenantors shall be joint

and several

1.2.2. The expressions "the Council" “the County Council” and “the Owner shall

include their respective successors in title and assigns and/or any successor in

duties in the case of the Council and the County Council

1.2.3. Any reference to a statute or statutory instrument (whether or not

specifically named) includes any statutes or statutory instrument amending

consolidating or replacing them respectively and for the time being in force

and references to a statute include all statutory instruments orders plans

regulations byelaws permissions and directions for the time being made issued

or given or deriving validity pursuant to them

2. STATUTORY BASIS

That in pursuance of Section 106 of the 1990 Act Section 111 of the Local

Government Act 1972 Section 1 of the Localism Act 2011 and all other powers

enabling them the Owner covenants with the Council in the manner following

to the intent that such covenants bind the Owner and shall run with the land

forming the Application Site as a planning obligation for the purposes of Section

Subject to Contract


106 of the 1990 Act and each and every part thereof (unless otherwise stated)

shall be bound by such covenants

3. PLANNING OBLIGATIONS

3.1. Each covenant by the Owner contained herein is a planning obligation for the

purposes of Section 106 of the Planning Act and subject to Clause 2010.1 to

10.3 and is conditional upon the grant of the Planning Permission and (with the

exception of clause 8.1, clauses 13, 14, 15, 16, and clause 17) the

Commencement of Development, they shall be enforceable without limit of

time against the Owner and/or its successors in title and assigns and any other

person or persons claiming an interest through or under the Owner in the

Application Site (or any part or parts thereof), as if that person or persons had

been a party to this Agreement.

3.2. To the extent that any of the obligations are not planning obligations within the

meaning of the Planning Act they are entered into pursuant to the powers

contained in Section 111 of the Local Government Act 1972 Section 1 of the

Localism Act 2011 and all other enabling powers

3.3. Regulation 128 of the CIL Regs shall apply to the Planning Permission granted

for the Development [and all reserved matters approvals granted pursuant to

the with the effect that the Development is not a “chargeable development” as

defined in the CIL Regs.

4. OWNER’S COVENANTS

4.1. The Owner covenant with the Council as follows: -

4.1.1. Prior to 1st Occupation of the 1st Open Market Unit to pay the Section 106

Monitoring Officer Contribution to the Council (as defined)

4.1.2. Prior to Commencement of Development to deliver to the Council the

Affordable Housing Scheme as specified in SCHEDULE ONE to this Agreement

Subject to Contract


4.1.3. Prior to Commencement of Development to provide the Affordable Housing

Commuted Sum in accordance with SCHEDULE FOUR to this Agreement

4.1.4. The NHS Contribution; and

4.1.5. The Police Contribution

4.2 The Owner agrees with the Council:

4.2.1 that the Affordable Housing Units will be subject to the restrictions and

requirements specified in SCHEDULE ONE to this Agreement

4.2.2 not to dispose of the Affordable Housing Units in any way whatsoever

otherwise than as specified in SCHEDULE ONE to this Agreement

4.2.3 The Affordable Housing Units will be occupied by as specified in SCHEDULE

ONE subject to the restrictions therein

4.3 The Owner covenant’s with the County Council as follows:

4.3.1 To pay 50% of the Primary Education Contribution to the County Council in its

capacity as local education authority prior to occupation of the first dwelling

and the remaining 50% prior to Occupation of the 175th Dwelling on the

Development

4.3.2 To pay the Highways Contribution to the County Council in its capacity as local

highways authority upon Commencement of the Development

4.3.3 To carry out the Highway Works in accordance with SCHEDULE THREE

4.3.4 to pay the Travel Plan Monitoring Fee in accordance with the provision of

SCHEDULE FIVE to this Agreement

4.3.5 that the Travel Plan will be subject to the restrictions and requirements

specified in SCHEDULE FIVE to this Agreement

5. THE COUNCIL’S COVENANTS

5.1 The Council covenants with the Owner:

Subject to Contract


5.1.1 To apply the Section 106 Monitoring Officer Contribution to or towards

the monitoring of the covenants restrictions and requirements

contained in this Deed

5.1.2 To apply the Affordable Housing Commuted Sum to or towards the

provision of Affordable Housing in satisfaction of the Council’s policy

goal of 40% Affordable Housing being generated by the Development

5.2 On the fifth anniversary and tenth anniversaries of receipt of payment in full

by the Council of the each of the Council Contributions and upon receipt of a

written request to that effect from the Owner to supply the Owner with a

statement of how the respective Council Contribution, has been expended

and or applied

5.2.1 To refund to the Owner any portion of any of the Council Contributions, that

have not on the tenth anniversary ( of receipt of payment in full by the

Council of the respective Contribution),been expended or applied or

committed to the proper purposes as specified in this clause together with

interest accrued thereon

6 THE COUNTY COUNCIL’S COVENANTS – The County Council undertakes:

6.1.1 To apply the Education Contribution to or towards [construction and/or

provision of additional primary school facilities to accommodate additional

space in the Vicinity of the Development]

6.1.2 To apply the Highways Contribution to or towards [the provision of highway

improvement schemes in the Vicinity of the Development]

6.1.3 On the fifth anniversary and tenth anniversaries of this Agreement or upon

receipt of a written request from the Borough Council to supply the Borough

Council with a statement of how the Education Contribution and Highways

Contribution have been expended and or applied

6.2 To repay to the Owner on demand (meaning the owners for the time being of

the Land excluding owners of the Dwellings and any statutory undertakers with

Subject to Contract


an interest in the Land) the whole or any part of the Education Contribution

not used for the improvement of education provision serving the Development

within 10 years of the date of the final payment

6.3 To repay to the Owners on demand (meaning the owners for the time being of

the Land excluding owners of the Dwellings and any statutory undertakers with

an interest in the Land) the whole or any part of the Highways Contribution not

used for highways improvements in the Vicinity of the Development within 10

years of the date of final payment

7. ENTRY INTO FORCE

The covenants contained in this Agreement shall take effect on the date

hereof.

8. GENERAL PROVISIONS

8.1. This Agreement shall operate as a local land charge on the Application Site

and shall be registered in the Register of Local Land Charges by the Council

8.2 Nothing in this Agreement shall be construed as prohibiting limiting or

affecting any right to develop any part of the Application Site in accordance

with a planning permission other than the Planning Permission for the

Development

8.3 All parties to this Agreement acknowledge that they are under a duty to act

reasonably and (without prejudice to generality if any consent approval or

expression of satisfaction is due from one party to another under the terms of

this Agreement the same shall not be unreasonably withheld or delayed.

8.4 Nothing in this Agreement shall be taken to be or shall operate so as to fetter

or prejudice the Council’s or County Council’s statutory duties.

Subject to Contract


9 THIRD PARTIES

Except as expressly provided none of the provisions of this Agreement are

intended to or will operate to confer any benefit under the Contracts (Rights of

Third Parties) Act 1999 on a person who is not named as a party to this

Agreement

10 PLANNING OBLIGATIONS AND BINDING EFFECT

10.1 For the avoidance of doubt notwithstanding the terms contained herein the

parties hereto agree that

10.2 For the avoidance of doubt notwithstanding the terms contained herein the

parties hereto agree that the planning obligations in this Agreement shall not

be binding upon any person acquiring the 100% freehold or leasehold interest of

any Affordable Housing Unit - by way of staircasing or outright purchase - nor

any mortgagee or chargee of such lessee or any receiver appointed by such

mortgagee or chargee - nor any person deriving title from any of them

10.3 The planning obligations in this Agreement shall not be enforceable against any

statutory undertaker or other person who acquires any part of the Application

Site or interest therein for the purposes only of the supply of electricity, gas,

water, drainage, telecommunications services or public transport services or

any individual owner or occupier of any of the individual Open Market Units or

their mortgagee(s)

10.4 It is hereby confirmed that the Owner shall not be liable for any breach or

non-observance of the said covenants after it has parted with its interest in the

Application Site or any part thereof (save in respect of liability for any

Subject to Contract


subsisting breach of this Agreement arising prior to their parting with such

interest)

11 WRITTEN NOTIFICATIONS

11.1 Where by the terms of this Agreement the Owner is required to obtain the

agreement approval or consent of the Council such agreement approval or

consent shall

a) be sought in writing

b) not be unreasonably withheld or delayed

c) (if appropriate) granted from and by the Council in its capacity as a

local planning authority under the terms of this Agreement as distinct

from consent given by way of planning permission and

d) be given on behalf of the Council by the Councils Head of Sustainable

Development (“HSD”) for the time being (or the Councils Housing

Manager for the time being where stated) or such other person/body

as notified for the purposes of the subject consent from time to time

12 NOTICE

12.1 Any notice or other communication given or made in accordance with this

Agreement must be in writing and sent to the relevant party either at the

address of the party shown on the first page of this Agreement or at any other

address they from time to time notify to the other party as being their address

for service for the purposes of this Agreement and shall be deemed to have

been duly given or made as follows:

a) if personally delivered, upon delivery at the address of the relevant

party,

b) if sent by first class post, 2 Working Days after the date of posting,

Subject to Contract


c) if sent by air mail, 10 Working Days after the date of posting, and

d) if sent by fax, when despatched,

e) provided that if, in accordance with the above provision, any notice,

demand or other communication would otherwise be deemed to be

given or made after 1700 hours, it shall be deemed to be given or made

at the start of the next Working Day.

f) A party may notify the other party to this agreement of a change to his

name, relevant addressee, address or fax number for the purposes of

the above clause, provided that such notification shall only be

effective on:

g) the date specified in the notification as the date on which the change

is to take place; or

h) if no date is specified or the date specified is less than 5 Working Days

after the date on which notice is given, the date falling 5 Working Days

after the notice is given.

13 ACTIONS ON COMPLETION OF AGREEMENT

13.1 The Owner hereby covenants with the Council and County Council to pay to the

Council and County Council prior to the completion of this Agreement the

reasonable legal and administrative costs incurred in the negotiation,

preparation and execution of this Agreement and its registration as a local land

charge.

13.2 On the completion of this Agreement the Council agrees to grant full planning

permission or for the Development

14 DISPUTE RESOLUTION

Without prejudice to the right of the Council to seek to enforce the covenants

herein contained in the County or High Court any dispute or difference arising

Subject to Contract


between the parties hereto in connection with the interpretation of this

Agreement may be referred to the arbitration or decision of a single arbitrator

to be agreed on by the parties or failing agreement as to the arbitrator the

same shall be nominated by the President or Vice-President for the time being

of the Chartered Institute of Arbitrators as the case may be and any such

reference shall be deemed to be a submission to arbitration within the meaning

of the Arbitration Acts 1996

15 SEVERABILITY

In so far as any clause or clauses of this Agreement 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 Agreement.

16 NO WAIVER

No waiver (whether expressed or implied) by the Council or County Council of

any breach or default in performing or observing any of the covenants terms

or conditions of this Agreement shall constitute a continuing waiver and no

such waiver shall prevent the Council or County Council from enforcing any of

the relevant covenants, terms or conditions or from acting upon any

subsequent breach or default.

17. CHANGE OF OWNERSHIP

17.1. The Owner hereby agrees to give to the Councils HSD (or any successor in

duties to such officer as notified from time to time) immediate written notice

of any change in ownership of any if its interests in the Application Site

occurring before all the Affordable Housing Units have been completed and

first occupied and thereafter to supply details of any change of ownership of

Subject to Contract


the Affordable Housing Units such notice to include details of the transferees

full name and address/registered office together with the area of the

Application Site or unit of occupation purchased by reference to a plan

17.2. For the purposes of monitoring compliance with this Agreement the Owner

shall have a continuing obligation within 7 days of Occupation notify the

Council in writing of the total number of Dwellings Occupied in the

Development from the first Occupation of the first Dwelling on the

Development and thereafter subsequent Occupations resulting in the triggers

specified in clause 4

17.3. The Owner agrees with the Council to give the Council written notice within 7

days of any change in ownership of any of its interest in the Application Site

occurring before all the obligations under this Agreement have been

discharged. Such notice to give details of the transferee’s full name and

Registered Office (if a company or usual address if not) together with the

details of the extent of the area of the Application Site or Dwellings

purchased by reference to a plan PROVIDED THAT the provisions of this clause

shall not oblige the then Owner to give such notice upon the transfer of

individual Dwellings or transfers of any part of the Application Site to

statutory undertakers.

18. MONITORING

18.1. The Owner shall from the date hereof allow the Council its servant’s agents

and consultants access to the Application Site at all reasonable times to

enable the monitoring of compliance with the obligations contained in the

Agreement.

Subject to Contract


19 INDEXATION

19.1 The S106 Monitoring Officer Contribution shall be adjusted by a percentage

equivalent to the percentage increase (if any) shown in the Index of RPI (All

Items) or its replacement as published by the Office for National Statistics

from the date of this Agreement to the actual date of payment. For the

avoidance of doubt in the case of a decrease in the Index the change in the

Index shall be deemed to be nil.

19.2 The Education Contribution shall be adjusted by a percentage equivalent to

the percentage increase (if any) shown in the BCIS All In Tender Price Index or

its replacement as published by the Department for Business Innovation and

Skills from the date of this Agreement to the actual date of payment of the

sum in question. For the avoidance of doubt, in the case of a decrease in the

Index the change in the Index shall be deemed to be nil.

19.3 The Open Space Maintenance Contribution shall be adjusted by a percentage

equivalent to the percentage increase (if any) shown in the BCIS All In Tender

Price Index or its replacement as published by the Department for Business

Innovation and Skills from the date of this Agreement to the actual date of

payment of the sum in question. For the avoidance of doubt, in the case of a

decrease in the Index the change in the Index shall be deemed to be nil.

19.4 The Affordable Housing Commuted Sum Payment referred to in paragraph 3

of SCHEDULE FOUR shall be adjusted by a percentage equivalent to the

percentage increase (if any) shown in the BCIS All In Tender Price Index or its

replacement as published by the Department for Business Innovation and

Skills from the date from the date of this Agreement to the actual date of

payment of the sum in question. For the avoidance of doubt, in the case of a

decrease in the Index the change in the Index shall be deemed to be nil.

Subject to Contract


20 TERMINATION

If the permission for the Development shall expire within the meaning of

sections 91, 92 and 93 of the 1990 Act or be quashed revoked or otherwise

withdrawn expires prior to the Development commencing or if a new planning

permission is granted and implemented which is inconsistent with the terms

of this Agreement then this Agreement shall lapse and cease to have further

effect

21 AGREEMENT GOVERNED BY ENGLISH LAW

This Agreement is governed by and interpreted in accordance with the laws of

England.

Subject to Contract


SCHEDULE ONE

On-Site Affordable Housing Obligations.

The Owner hereby covenants with the Council:-

1. To give fourteen (14) days prior written notice of the proposed

Commencement of the Development to the Council clearly addressed and

marked for the attention of the HSD for the Council confirming the date for

the Commencement of the Development

2. That the Owner shall secure the erection of the Affordable Housing Units on

the Application Site as part of the Development for the purposes of Affordable

Housing as follows –

Tenure split –to be confirmed-

[__20_] units of Shared Ownership Housing

[40__] units of Affordable Rented Housing

Mix of units to be confirmed

Shared Ownership Housing

3 x 1 bed 2 person

17 x 2 bed 4 person

Affordable Rented Housing

22 x 1 bed 2 person

18x 2 bed 3 person

Subject to Contract


3. Not to Occupy or cause allow or permit the Occupation of more than [ ]

to be confirmed Open Market Units unless and until: -

3.1. All of the Affordable Housing Units are substantially complete and have been

constructed in accordance with the Planning Permission, to a standard which

satisfies the development standards and guidance (including in terms of

design, quality and sustainability standards) as set out by the Homes and

Communities Agency's Design and Quality Standards published in 2007

3.2.

4. That the transfer of the Affordable Housing Application Site as set out in

paragraph 4 of this Schedule shall be on terms that allow a Registered

Provider to let the Affordable Housing Units as Affordable Rented Housing as

set out in paragraph 3 of this Schedule assuming no grant subsidy from the

Government or other outside bodies (unless otherwise agreed by the

Council, in its absolute discretion) and on terms that are no more onerous

than the terms for the disposal of the Open Market Units and the transfer

shall contain:

4.1. a covenant by the Owner to construct and procure the construction of roads

and footpaths to the boundary of the Affordable Housing Application Site (but

not so as to require the adoption of any roads or footpaths within the

Affordable Housing Application Site)

4.2. full and free rights of access both pedestrian and vehicular from the public

highway to the Affordable Housing Application Site

4.3. a covenant by the Owner to construct and procure the construction of drains

and sewers to serve the Affordable Housing Units (but not so as to require the

Subject to Contract


adoption of any drains or sewers within an Affordable Housing Unit where that

is the only dwelling to be served by that drain/sewer)

4.4. full and free rights to the passage of water soil electricity gas and other

services through the pipes drains channels wires cables and conduits which

shall be in the adjoining Application Site up to and abutting the boundary to

the Affordable Housing Application Site and all such services to be connected

to the mains; and

4.5. such other rights or covenants as may be reasonably be required by the

parties to the transfer for the sale of such units

5. The Occupation of the Affordable Housing Units (on the first Occupation

following Substantial Completion and for each shall be subject to the

following Nominations Process

5.1. Not less than three (3) calendar months prior to Substantial Completion of

each Affordable Housing Unit to serve a written notice on the Council (for the

attention of the HDS and with a copy to the Principal Housing Officer) (“the

Vacancy Notice”) requesting that the Council nominate a primary and up to

three reserve Eligible Persons for that Affordable Unit

5.2. The Council shall have the right within 20 Working Days of receipt of the

Vacancy Notice from the Owner to nominate by notice in writing to the Owner

(“a Nomination Notice”) up to four Eligible Persons for that Affordable

Housing Unit and the Owner (through the Registered Provider) shall use all

reasonable endeavours to rent or lease the Affordable Housing Unit in

question to one of the nominated Eligible Persons

5.3. If a nominated Eligible Person fails to enter into a tenancy agreement or lease

for the relevant Affordable Housing Unit within 5 Working Days of being

offered it, that nominated Eligible Person will be deemed to have rejected

the offer, and the Owner will offer it to the next nominated Eligible Person in

Subject to Contract


the Nomination Notice. This process will be repeated until a nominated

Eligible Person has entered into a tenancy agreement or lease of the relevant

Affordable Housing Unit, or until all the nominated Eligible Persons have

rejected the Owner’s offer, whereupon the Owner may request the Council to

make a replacement nomination (and the Council shall then have 3 Working

Days to make the replacement nomination)

5.4. If the Council fails to serve a Nomination Notice within the time limits

specified in paragraph 6.3 or 6.4the Owner shall be entitled to let the

relevant Affordable Housing Unit to any other Eligible Person

5.5. If all of the nominated Eligible Persons have failed by his/her own act or

default to enter into a tenancy agreement or lease within the timescales set

out in paragraph 6.4the Owner shall be free to let the said Affordable Housing

Unit to any other Eligible Persons

and over by

5.7 The Housing Service will nominate Eligible Persons for the Affordable Housing

Units in accordance with the terms of this Agreement Council and reserves the

right to waive its rights to nominate Eligible Persons as set out in paragraph

5.7 of this Schedule for any period of time providing any such waiver of rights

is given in writing by the Head of the Council’s

6. That the Development shall not be carried out otherwise than in accordance

with the provisions of this Schedule or any variations thereof approved in

writing by the Council

7. Subject to paragraph 9 of this Schedule the Owner agrees:

8.1. Not to use or cause allow or permit the Affordable Housing Application Site (or

any Affordable Housing Unit thereon) to be used otherwise than for the

provision of Affordable Housing to Eligible Persons

8.2. Not to dispose of or cause allow or permit the disposal of the Affordable

Housing Application Site (or any Affordable Housing Unit thereon) other than

Subject to Contract


the grant of a charge or mortgage or easement otherwise than to a Registered

Provider or Eligible Persons for use as Affordable Housing

8.3. That no Affordable Housing Unit shall be Occupied otherwise than by Eligible

Persons and his or her immediate family or dependants living with him or her

8.4. In order that the Council can satisfy itself that the requirements of this

paragraph 8 have been or are being complied with, within twenty-eight days

of receipt of a written request from the Council’s HSD the Owner shall provide

full written details of any tenant and other occupiers of the relevant

Affordable Housing Unit(s) together with a copy of the tenancy agreement or

lease and (unless the tenant was nominated by the Council in accordance with

this Schedule) information as to how the tenant satisfied the occupation

requirements set out in the definition of Affordable Housing when the tenancy

was granted

8.5. In the event of the Council agreeing to waive the nomination arrangements

set down in paragraph 6 of this Schedule the Owner shall provide the Council

on request with full written details of any tenant and other occupiers of the

relevant Affordable Housing Unit(s) together with information on how the

tenant or occupier satisfied the requirements set out in the definition of

Affordable Housing when the tenancy was granted

9. That the Affordable Housing Units shall not be used other than for Affordable

Housing save that this obligation and the provisions of paragraph 6 of this

Schedule shall not be binding on:

9.1. any Protected Tenant or any mortgagee or chargee of the Protected Tenant or

any person deriving title from the Protected Tenant or any successor in title

thereto and their respective mortgagees and chargees; or

9.2. any chargee provided that the chargee shall have first complied with its

obligations in paragraph 9 of this Schedule

Subject to Contract


9.3. any purchaser from a mortgagee of an individual Affordable Housing Unit

pursuant to any default by the individual mortgagor

9.4. Any chargee or mortgagee of a Registered Provider or any successor in title

thereto

10. To enter into a Local Lettings Policy agreement with the Council

Subject to Contract


SCHEDULE TWO

DRAFT PLANNING PERMISSION

Subject to Contract


SCHEDULE THREE

HIGHWAYS WORKS

Part A

1. The Owners covenant with the Council and the County Council not to Occupy

the Development unless and until the Owners have:

(i) Supplied full engineering drawings to the County Council in respect of

the Highway Works and such drawings have been agreed in writing by

the County Council; and

(ii) Entered into the Highway Agreement with the County Council to carry

out and complete the Highways Works

2. The Owners covenant with the Council and the County Council not to Occupy

or permit Occupation of any Dwelling unless and until the Owners have carried

out and completed the Highway Works in accordance with the provisions of

the Highways Agreement to the reasonable satisfaction of the Council and the

County Council

3. The Owners agree to pay the Council’s and the County Council’s reasonable

costs incurred on an indemnity basis in the course of negotiating drafting and

administering the Highway Agreement.

4. For avoidance of uncertainty the Councils’ and County Council’s costs will be

payable upon either execution of the Highway Agreement whether or not the

Planning Permission has been implemented or within 20 calendar days of the

Council concluding the Owner does not wish to enter into the Highways

Agreement.

Part B

Description of the Highways Works

Subject to Contract


1 The construction and detailed layout for works to the Bath Road A4 at the

proposed new site access junction and Berry Hill/A4 lane Junction including

the closure of Mill Lane at the Jubilee Weir

Subject to Contract


SCHEDULE FOUR

AFFORDABLE HOUSING COMMUTED SUM PAYMENT

The Owner hereby covenants with the Council as follows:

1. At least ten (10) Working Days prior written notice confirming the date of

Commencement of Development shall be given to the Council (addressed to

the HSD) in accordance with clause 12 “Notice” such notice to include the

proposed date for such Commencement of Development together with details

of the person or body who or which shall constitute the Owner at the time of

such Commencement of Development quoting the Planning Application

reference numbe14/01414/FUL

2. That Commencement of Development shall not take place unless and until the

written notice referred to in paragraph 1 of this Schedule has been given to

the Council.

3. Prior to making payment of the Affordable Housing Commuted Sum Payment

to give written notice of the intended payment, the amount and any index

linked adjustment pursuant to clause 19 addressed to the Council’s Section

106 Monitoring Officer in accordance with clause 12 “Notice”(in all cases

quoting reference number14/01414/FUL and if within ten (10) Working Days

after receipt of such notice the Council has not specified its preferred method

of payment, to make payment of the relevant sum by the method so specified

or if no such method is specified within the aforesaid ten (10) Working Days

payment may be made by cheque, banker’s draft or direct transfer.

Subject to Contract


4. Prior to Commencement of Development the Affordable Housing Commuted

Sum Payment including index linked amount pursuant to clause 19 shall be

paid in full to the Council in cleared funds using the method referred to in

paragraph 3 above and quoting the reference number at paragraph 1 above.

5. That Commencement of Development shall not take place unless and until the

Affordable Housing Commuted Sum Payment has been paid in full to the

Council.

6. The Development Account shall be given to the Council within twenty eight

(28) days of the Disposal of the last Dwelling (addressed to the HSD at the

Council's address in accordance with clause 12 “Notice” and shall be delivered

by hand or sent by pre-paid first class post.

7. Not to use or Occupy any part of the Application Site unless and until the

covenants restrictions and obligations at paragraph 1 to 5 inclusive above

contained in this Schedule have been complied with in full

Subject to Contract


SCHEDULE FIVE

TRAVEL PLAN

The Owner shall:

1.1 not Commence the Development unless and until the Travel Plan

has been submitted to and approved by the Council

1.2 submit the Travel Plan to the Council for written approval of the

Council prior to the Commencement of Development

1.3 not cause or permit the Occupation of any part of the

Development until the operation of the Travel Plan has

commenced in respect of the Development

1.4 implement the Travel Plan in respect of each part of the

Development prior to the Occupation of the Development

1.5 continue to implement the Travel Plan in accordance with its

terms until otherwise agreed with the Council

1.6 monitor and review the Travel Plan and submit a Travel Plan

Annual Performance Report for approval by the Council not later

than 12 months after the date on which the Development is first

Occupied and then annually thereafter until the 5th anniversary of

Commencement of Development

1.7 discuss the Travel Plan Annual Performance Report with the

Council and in the event that the Council (acting reasonably) is of

the view that it does not achieve the objectives of the Travel Plan

the Owner shall submit a revised Travel Plan Annual Performance

Report to the Council for its approval and shall submit further

revisions until such time as the Travel Plan Annual Performance

Report is approved in writing by the Council

Subject to Contract


1.8 implement the measures in the Travel Plan Annual Performance

Report as are agreed in writing by the Council as soon as

reasonably practicable following receipt of the written agreement

from the Council

1.9 appoint a Site Travel Plan Co-ordinator prior to the first

Occupation of any Dwellings and provide details of the said

appointment and any changes to the appointment thereafter to

the Council and to keep a Site Travel Plan Co-Ordinator appointed

until the 5th anniversary of Commencement of Development

1.10 pay the Travel Plan Monitoring Fee by way of [five instalments of

£1000 (one thousand pounds), the first payment being made prior

to the Commencement of Development with a further four x

£1000 (one thousand pounds) on each anniversary of this

agreement]

1.11 following receipt of a Travel Plan Notice use reasonable

endeavours to meet with the Council within 28 days of service of

the relevant Travel Plan Notice to discuss and where possible

agree actions to remedy failures in respect of the implementation

and operation of the Travel Plan

1.12 implement actions to remedy failures identified as may be agreed

with the Council pursuant to paragraph 1.11 of this Schedule or

otherwise as directed by the Council (acting reasonably) in the

absence of such an agreement within a reasonable period.

IN WITNESS whereof the Council, the County Council and the Owner have hereunto

affixed their Common Seals or executed this Agreement as an Agreement in the

presence of the persons mentioned below on the day and year first before written

[THE COMMON SEAL of BUCKINGHAMSHIRE )

COUNTY COUNCIL was hereunto affixed )

Subject to Contract


in the presence of: )

Authorised Signatory ………………………………………………]

THE COMMON SEAL of SOUTH BUCKS DISTRICT )

COUNCIL was hereunto affixed in the presence )

of: - )

Chairman ………………………………………………

Director of Resources ………………………………………………

EXECUTED AS A DEED by Berkley Homes

(Three Valleys) Limited

acting by [a director and a secretary] [2

directors]

Signature

Director

Signature

[Director] [Secretary]

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DATED 2015 BERKELEY HOMES (THREE VALLEYS) LIMITED …€¦ · The Mill House, The Mill Premises,...

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