Dated 2003
(1)
and
(2) MININVEST PLC
pursuant to s.106 of the Town and
Country Planning Act 1990
relating to
land at Midland Quarry, Tuttle Hill,
Legal Services
z:\pje\jobs\s.106-103\CenturyPark-Mid.Quarry3
THIS DEED made the day of 2003 between:
(1)
(2) MININVEST PLC (Co. no. 03224492) whose registered office is at Edwards Centre, The Horsefair, Hinckley, Leicestershire, LE10 0AN ("the Owner").
WITNESSES:
1. DEFINITIONS.
In this deed the following definitions apply:
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"the Act" |
the Town and Country Planning Act 1990. |
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"the Plan" |
the plan annexed to this deed at Appendix 1. |
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1.3 |
"the Site" |
land on the south side of Tuttle Hill, Nuneaton, known as Midland Quarry, within the Borough of Nuneaton and Bedworth, edged red, and (for purposes of identification only) in parts coloured orange and hatched blue, on the Plan. |
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"the Blue Land" |
that part of the Site shown hatched blue on the Plan. |
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"the Orange Land" |
that part of the Site shown coloured orange on the Plan. |
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"the Application" |
the planning application referred to in clause 3.3 or any other application for planning permission for the development of the Site where the Council requires planning obligation(s) under the Act no different to the Obligations. |
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1.7 |
"Detailed Applications" |
any detailed planning permission or permissions granted by the Council pursuant to the Application. |
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1.8 |
"Planning Permission" |
any planning permission granted in respect of the Application or the Detailed Applications including any condition on and any plan scheme specification or other document referred to in or approved by the Council under such permission. |
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1.9 |
"the Proposed Development" |
the development and subsequent use of the Site as proposed in the Application and the Detailed Applications. |
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1.10 |
"Material Operation" "Development" and "Commencement" |
material operation, development and commencement as defined or referred to in sections 55 and 56 of the Act save for the following matters which individually or together shall not trigger any obligation under this Deed (with the exception of those parts of the Site the subject of the Ecological Plan): enabling work; demolition; site clearance; provision of infrastructure; operations permitted by the Town & Country Planning Permitted Development Order 1995 or any amendment or replacement |
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thereof and operations permitted by planning permissions granted in respect of the Site other than the Planning Permission (including any planning permission granted in relation to the construction of the public road known as INF3 and the additional access to the Site known as INF 3.1); provision of underground drainage and sewers; construction of temporary construction accesses; archaeological investigations and digs; erection of hoardings; all works matters and operations to enable any of the foregoing to take place. |
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1.11 |
"the Obligations" |
the obligations contained in clause 4 of this deed. |
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1.12 |
"the Social Housing Payment" |
the sum of five hundred thousand pounds (£500,000) adjusted as provided in clause 8.2. |
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1.13 |
"the Open Space Payment" |
five hundred pounds (£500) in respect of each two or more bedroom house or flat and three hundred and fifteen pounds (£315) in respect of each 1 bedroom house or flat in the Proposed Development adjusted as provided in clause 8.1. |
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1.14 |
"the Ecological Payment" |
the sum of sixty thousand pounds (£60,000) adjusted as provided in clause 8.1. |
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1.15 |
"the Ecological Plan" |
the written strategy, containing proposals and details of how the ecological and geological features to be identified within the Proposed Development are to be retained and maintained, annexed to this agreement at Appendix 2. |
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1.16 |
"the Ground Water Plan" |
the written programme, containing proposals and details of how ground water levels and quality within the Proposed Development are to be monitored, annexed to this agreement at Appendix 3. |
2. INTERPRETATION.
2.1 Words importing one gender shall be construed as importing any other gender.
2.2 Words importing the singular shall be construed as importing the plural and vice versa.
2.3 The clause and paragraph headings in the body of this deed do not form part of this deed and shall not be taken into account in its construction or interpretation.
2.4 References to a statute include reference to any statute amending consolidating or replacing that statute.
2.5 This deed is made pursuant to section 106 of the Act and any other relevant powers of the Council.
2.6 The Obligations are planning obligations for the purposes of section 106 of the Act, enforceable by the Council.
3. INTRODUCTION.
3.1 The Owner is registered as proprietor of the Blue Land at H.M. Land Registry with freehold title absolute under title numbers WK307301, WK368041, WK387632 and WK374686.
3.2 The Council is the district planning authority for the Borough of Nuneaton and Bedworth.
3.3 By an application (reference TP0296/02) accepted by the Council on the 30th day of April 2002 the Owner has applied for outline planning permission for the reclamation of the Site for employment, residential, leisure and recreational uses.
3.4 By resolution of the Council's Planning Applications Committee on the 5th February 2003 the Council's Planning and Development Manager was given delegated authority to grant Planning Permission, with conditions, subject to the completion of this Agreement.
3.5 The Owner and the Council consider that the Obligations should be entered into in the interests of the proper planning of the area and more specifically (but not exclusively) to comply with the Council’s policies on:
(a) planning and affordable housing;
(b) nature conservation; and
(c) the acquisition and maintenance of areas of open space provided within new residential developments
4. THE OBLIGATIONS.
4.1 The Owner with the intention of binding itself to the extent of its interests in the Site and any person deriving title from such interests agrees with the Council to enter into the following obligations:-
4.1.1 SOCIAL HOUSING.
4.1.1.1 The Owner covenants with the Council that it will not allow authorise or bring about the occupation of more than:
(a) 50 of the houses comprised in the Proposed Development until £250,000 of the Social Housing Payment has been paid to the Council;
(b) 75 of the houses comprised in the Proposed Development until £375,000 of the Social Housing Payment has been paid to the Council; and
(c) 90 of the houses comprised in the Proposed Development until the whole of the Social Housing Payment has been paid to the Council,
to enable the Council to use the Social Housing Payment in accordance with clause 5.
4.1.2 OPEN SPACE CONTRIBUTION.
4.1.2.1 The Owner covenants with the Council that it will not allow authorise or bring about the occupation of more than 50% of the houses comprised in the Proposed Development until the Open Space Payment has been paid to the Council to enable the Council to use the Open Space Payment in accordance with clause 5.
4.1.2.2 PROVIDED THAT if any Detailed Application(s) shall be submitted in respect of less than the whole of the Site the Owner must not allow authorise or bring about the occupation of more than 50% of the houses proposed to be constructed on the part or parts of the Site to which the Detailed Application(s) shall apply until the relevant proportion of the Open Space Payment has been paid.
4.1.3 ECOLOGICAL AND GEOLOGICAL MANAGEMENT.
The Owner covenants with the Council:
4.1.3.1 Not to commence or permit the commencement of any Development on the Site until the Ecological Plan has been submitted to and agreed by the Council.
4.1.3.2 To undertake works of reinstatement construction and maintenance in accordance with the Ecological Plan and all details approved pursuant to the Planning Permission and thereafter manage the areas (including the Orange Land) identified in the Ecological Plan in accordance with the agreed programme of retention and maintenance. Provided that the Owner's obligation in respect of the Orange Land under this clause shall cease once the Owner has complied with clause 4.1.3.4.
4.1.3.3 That it will not allow authorise or bring about the occupation of more than 50% of the houses comprised in the Proposed Development until the Ecological Payment has been paid to the Council to enable the Council to use the Ecological Payment in accordance with clause 5.
4.1.3.4 To pay the Ecological Payment to the Council either:
(a) before the occupation of the 51st dwelling comprised in the Proposed Development, or
(b) within 14 days of the Council's Public Amenities Manager confirming in writing that the provisions of clause 4.1.3.2 have been complied with in so far as they relate to the Orange Land and that all works carried out on the Orange Land have been carried out and completed to his reasonable satisfaction and to an acceptable standard for maintenance at public expense,
whichever event shall occur the later
4.1.4 GROUND WATER MONITORING.
The Owner covenants with the Council:
4.1.4.1 Not to commence or permit the commencement of any Development on the Site until the Ground Water Plan has been approved by the Environment Agency and submitted to and agreed by the Council.
4.1.4.2 Not to commence or permit the commencement of any operation or procedure pursuant to the Ground Water Plan until details of such operation or procedure have first been approved in writing by the Environment Agency and once approved to carry out those operations and procedures strictly in accordance with the directions and requirements of the Environment Agency and to submit all results to the Environment Agency where required to do so.
4.2 The Owner covenants with the Council that with effect from the date upon which the Owner acquires the freehold estate in any of those parts of the Site other than the Blue Land the Obligations shall be binding upon and enforceable against the Owner and its successors in title and the Owner will immediately enter a deed supplemental to this deed in a form approved by the Council in order to bind that land by the terms of this agreement.
4.3 The Council acknowledges that the undertaking by the Owner to perform the Obligations set out in sub-clause 4.1.2.1 above shall be deemed to be by way of commutation of part of an open space payment calculated by reference to the Council’s Residential Design Guide 1996 (or any revision thereof) and that the payment payable under that sub-clause is the total of the sums due from the Owner to the Council in this respect.
5. THE
COUNCIL'S UNDERTAKINGS.
The Council undertakes with the Owner that it:-
5.1 will not use the Social Housing Payment other than for the provision of, or in assisting, or subsidising the provision of social housing in the Camp Hill area.
5.2 will not use the Open Space Payment otherwise than for:
(a) the upgrading or maintenance of existing play areas within the locality of the Site and any equipment or other facilities installed or provided on them; or
(b) the provision and maintenance of new play areas within the locality of the Site and any equipment or other facilities installed or provided on them.
5.3 will not require the Open Space Payment
(or the relevant proportion of the Open Space Payment) in respect of any
dwelling comprised in the Proposed Development where the Council is satisfied that
that dwelling is being used as rented accommodation.
5.3.1 For the avoidance of any doubt any suspension of the Obligation
pursuant to this clause shall end where the freehold interest or any long
leasehold interest in any dwelling is sold to any occupier of that
dwelling, and in such event the
Open Space Payment, or the relevant proportion of the Open Space Payment, shall
immediately become due and payable to the Council.
5.4 will not use the Ecological Payment other than for the maintenance of the ecological and geological works to be carried out on the Orange Land pursuant to clause 4.1.3;
5.4.1 For the avoidance of any doubt the Obligation in clause 4.1.3 shall cease in respect of the Orange Land once:
(a) the Ecological Payment has been paid to the Council, and
(b) the provisions of that clause have been complied with and the Council's Public Amenities Manager has confirmed in writing that all work carried out on the Orange Land is to his reasonable satisfaction and to an acceptable standard for maintenance at public expense.
5.5 will procure that the Social Housing Payment, the Ecological Payment and the Open Space Payment are used solely for the purposes set out in this Agreement and if not so used that it will return to the Owner at the end of the periods of 5 years, 20 years and 20 years respectively after the date of payment, any unexpended balance of such payments together with interest at the base rate of Lloyds Bank plc;
5.6 will not unreasonably withhold or delay any agreement approval or consent the Council is required to provide under this Agreement;
5.7 will allow to the Owner, its agents, contractors and employees full rights of access to those areas of land which are in the ownership of or occupied by the Council where such access shall reasonably be required for the purposes of enabling the Owner to comply with its Obligations under Clause 4.1.3 above and this shall include the grant by the Council to the Owner of all necessary licences and easements for those purposes. Provided that such allowance or grant can be lawfully made or given.
6. CONDITIONALITY.
The terms, conditions, covenants and obligations on the parts of the Owner and the Council shall be conditional upon and shall not take effect until the complete fulfilment of the following conditions:
(a) the Council shall have granted a planning permission pursuant to the Application; and
(b) a Material Operation having been carried out in respect of the Proposed Development.
7. DETERMINATION
OF AGREEMENT.
7.1 If there has been no Commencement of any part of the Proposed Development and the Planning Permission either lapses through non-implementation or is lawfully revoked this Agreement shall forthwith determine and cease to have effect.
7.2. Upon written notification from the Owner that it considers that the Obligations have been fulfilled the Council shall either:
(a) confirm in writing that the Obligations have been complied with and cancel all related entries in the Register of Local Land Charges, or
(b) give to the Owner a written explanation of why the Council considers that the Obligations have not been fulfilled and what outstanding requirements it considers need to be met in order to achieve fulfilment.
8. INDEX
LINKING PROVISIONS
8.1 THE OPEN SPACE AND ECOLOGY PAYMENTS.
8.1.1 The Open Space Payment and the Ecology Payment ("the Payments") shall be adjusted in accordance with any variation in the Index of Retail Prices (All Items) ("the Index") published by the Department of the Environment, calculated by reference to the difference between the first Index figure to be published after the execution of this deed and the latest Index figure to be published before the date on which the Payments are to be paid.
8.1.2 In the event of any change in the reference base used to compile the Index, the figure taken to be shown in the Index after such change shall be the figure which would have been shown in the Index if the reference base utilised in the first Index figure to be published after the date of this deed had been retained.
8.1.3 If the Index ceases to be published or for any other reason it becomes impossible to calculate the amount of the Payments by reference to the Index, the amount of any increase that would be applicable had the Index continued shall, in the absence of agreement between the parties, be determined by a single arbitrator in accordance with the Arbitration Act 1996 or any statutory amendment or re-enactment thereof for the time being in force.
8.2 THE SOCIAL HOUSING PAYMENT.
8.2.1 For the purpose of this clause:
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"the Beacon Property" |
shall mean number 12 Eden Court, Ryders Hill Crescent, Nuneaton, CV10 9AG. |
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"the Present Value" |
shall mean the value of the Beacon Property at the date of this Agreement which value shall be one hundred and fourteen thousand nine hundred and fifty pounds (£114,950). |
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"the Subsequent Value" |
shall mean the value of the Beacon Property at the date on which the Social Housing Payment (or the relevant part of it) is due to be paid. |
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"the Reference Base" |
the condition and description of the Beacon Property at the date of the Present Value and in accordance with the particulars appended at annexed at Appendix 4. |
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8.2.2 The Social Housing Payment shall be adjusted in accordance with any variation in house prices in the locality. Such variation shall be calculated by reference to the difference between the Present Value and the Subsequent Value.
8.2.3 The Present Value shall be assessed on the basis of the Reference Base and the Subsequent Value shall be calculated on the assumption that there has been no material change to the Reference Base (including the absence of stamp duty).
8.2.4 If the physical condition or appearance of the Beacon Property or its immediate neighbourhood changes so significantly or if for any other reason it becomes impossible to calculate the Subsequent Value by reference to the Reference Base, the amount of any variation in house prices that would have been applicable had the Subsequent Value been capable of calculation shall in the absence of agreement between the parties, or if the parties simply fail to reach agreement on the amount of any adjustment pursuant to clause 8.2.2, be determined by an expert appointed as provided in clause 9.
9. ARBITRATION.
9.1 Any dispute or difference relating to any matter or thing arising out of or in connection with this Deed shall if a party to the dispute shall serve notice on the other party to it requiring reference of the dispute be determined by an independent expert ("the Expert") (who will act as an expert not an Arbitrator) appointed and acting pursuant to clauses 9.2 to 9.10 below.
9.2 If the parties do not make the appointment of the Expert by agreement within 14 days of the notice requiring reference of the dispute, the Expert shall be nominated upon the application of ether party by the President of the Law Society or other officer to whom the making of such appointments is for the time being delegated and the Expert shall be an independent person who has been professionally qualified in respect of the subject matter of the dispute or difference for not less than 10 years.
9.3 Unless the Expert shall direct to the contrary, not more than 28 days after his appointment the parties shall exchange and copy to the Expert written summaries of their cases together with a bundle of key documents relied upon.
9.4 The Expert shall be at liberty to visit the land relevant to the dispute unaccompanied and to call for such written evidence from the parties as he may require.
9.5 The Expert shall not, unless he directs to the contrary, hear oral representations from any party to the dispute.
9.6 The Expert shall fully consider all submissions and evidence when making his decision.
9.7 The Expert shall give his decision in writing and shall give the reasons for making such decision.
9.8 The Expert shall use all reasonable endeavours to give his decision and the reason for it as speedily as possible and in any event within 42 days of his appointment.
9.9 The Expert’s decision including his decision as to costs shall be final and binding. The Expert’s fees (including those relating to his appointment and whether payable to the Expert or the professional body to whom application for his appointment was made) shall be payable by the parties in such proportions as he shall determine and in default of such determinations equally between them AND the parties hereby mutually covenant with each other to pay such fees.
9.10 PROVIDED THAT if it shall be impossible to procure the appointment of such an Expert or if the Expert so appointed shall fail or be unable to reach a determination of the matter referred to him then any party to the dispute shall be appointed by the President or a Vice-President of the Chartered Institute of Arbitrators and the arbitration shall be conducted in accordance with the Rules of the Chartered Institute of Arbitrators.
10. COUNCIL’S FEES.
The Owner hereby covenants with the Council that it will on the execution of this deed pay to the Council the reasonable and proper legal costs of the Council in connection with the preparation and completion of this deed.
11. BREACH
OF OBLIGATIONS.
11.1 The Owner shall not be bound by the Obligations in respect of any period during which it no longer has any interest in the Site but this will not affect the Council’s common law right to take action against the Owner in respect of any breach of the Obligations by the Owner occurring during a period when it did have an interest in the Site.
11.2 This deed shall not be enforceable against any owners/occupiers or tenants of the houses constructed pursuant to the Planning Permission nor against those deriving title from them.
12. THIRD PARTY RIGHTS.
All third party rights are excluded and no third party shall have any right to enforce this Agreement
IN WITNESS whereof the Council and the Owner have executed this deed the day and year first before written
APPENDIX 1
(the Plan)
APPENDIX 2
(the Ecological Plan)
APPENDIX 3
(the Ground Water Plan)
APPENDIX 4
(particulars of Beacon Property)
The common seal of Mininvest )
PLC was hereunto )
affixed in the presence of:- )
Director
Director/Secretary
The common seal of Nuneaton and )
Bedworth Borough Council was )
hereunto affixed in the presence of )
Designated officer