tT_
Given pursuant to Section 106 of the Town and Country Planning Act 1990 relating to land atDated 201
GIVEN BY
(1) [Owner]
(2) [Developer]
With the consent of
(3) [Mortgagee]
TO
(4) WAVERLEY BOROUGH COUNCIL10
THIS UNILATERAL UNDERTAKING is given the day of 2017
BY:
1. of (“the Owner”)
2. Company no. whose registered address is (“the Owner”)
3. Company no. whose registered address is (“the Developer”)
4. of (“the Developer”)
and with the consent of
5. whose registered address is (“the Mortgagee”)
TO:
6. WAVERLEY BOROUGH COUNCIL of The Burys, Godalming, Surrey GU7 1HR (“the Council”)
NOW THIS DEED WITNESSETH as follows:
1. Definitions and Interpretation
1.1 In this Unilateral Undertaking (hereinafter referred to as the “Undertaking”) the following words and phrases shall unless the context otherwise admits or requires have the following meanings:
“the Act” / the Town and Country Planning Act 1990 as amended"Application" / The application for planning permission for development of the Land and registered by the Council under reference number // or subsequent appeal under ref. APP/R3650/A//
“Avoidance Strategy” / Guidance to developers contained in the Thames Basin Heaths Special Protection Area Avoidance Strategy adopted by the Council in December 2009 and updated in May 2013 as further updated in July 2016 in relation to applications for planning permission for new residential development which may have an adverse effect on the SPA.
“Commencement Date”
"Commencement of Development" / Means the date on which the development is to commence or commences by the carrying out on the Land a material operation pursuant to the Permission
the carrying out of a material operation as defined in Section 56(4) of the Act in respect of the Development and the words “Commence Development” shall be construed accordingly and in accordance with Section 56 (1) of the Act where the development consists of :-
(a) the carrying out of operations the commencement will be when those operations are begun
(b) a change of use the commencement will be when the new use is implemented
(c) both carrying out of operations and change of use the commencement will be the earlier of the times in paragraphs (a) and (b) above
"Development" / the development of the Land consisting of
in accordance with the Application
“Default Interest Rate”
“Due Date” / five percentum (5%) per annum above the Bank of England Base Rate.
The date which is the date of Commencement of Development
“Dispose” / The completion of a tenancy agreement lease licence or transfer in respect of any one or more Dwellings
“Dwelling” / A house flat or apartment or maisonette (and its curtilage) forming part of the Development and “Dwellings” means more than one of the same
“Habitats Regulations”
“Index” / The Conservation of Habitats and Species Regulations 2010
All Items Index of Retail Prices issued by the Office for National Statistics
"Land"
“Legal Costs” / All that piece or parcel of land at registered at HM Land Registry under title number and shown edged red on the Plan
mean the Legal Costs of the Council necessarily and reasonably incurred in reviewing and completing this Undertaking
“Mortgage / a legal charge dated made between (1) and (2) as the same is registered at entries and of the Charges Register of title number SY
“occupy”
"Parties" / occupation for the purposes permitted by the Planning Permission but not including occupation by personnel engaged in construction, fitting out or decoration or occupation for marketing or display or occupation in relation to security operations
mean the Owner and/or Developer.
"Permission" / a valid planning permission for the Development granted pursuant to the Application and shall apply to any planning permission subsequently granted on appeal against refusal of the Application and Planning Permission subsequently granted (“Subsequent Permission”) under section 73 or 73A of the Act which permits non-compliance with any of the conditions attached to the Permission and the Permission shall be construed to include the Development as stated in the Subsequent Permission PROVIDED THAT with regard to the Subsequent Permission no new material planning considerations have arisen since the granting of the Permission that requires a Deed of Variation to be executed in respect of the Planning Obligation(s) or a new Unilateral Undertaking/ Planning Agreement under Section 106 of the Act to be executed
"Plan" / the plan annexed to this Undertaking
“Planning Obligation” / the obligations conditions and stipulations set out in the First Schedule
“Relevant Area” / all that part of the Council’s administrative area that lies at a distance of 5km or less from the perimeter of the SPA
“SANG”
“SAMM Contribution” / Suitable alternative natural green space at Farnham Park operated and maintained in accordance with the Avoidance Strategy
A total sum of £ for the access management and monitoring identified by Natural England
“SPA” / the Thames Basin Heaths Special Protection Area classified as a Special Protection Area in accordance with Article 4 of the EC Directive on the Conservation of Wild Birds (79/409/EEC) on 9th March 2005 and given Site Code UK9012141
“SPA Contribution” / the cost of (£) pounds and pence sterling to be paid by the Parties to the Council towards the maintenance, improvement and operation of the SANG.
1.2 The references to the Parties or any other legal or natural person named in this Undertaking shall include the successors in title heirs and assigns of the Parties and in the case of any Local Authority shall include any successor in function. Where any party comprises more than one person the obligations and liabilities of that party under this Undertaking shall be joint and several obligations and liabilities of those persons
1.3 Unless otherwise stated references to clause numbers are references to clauses in this Undertaking
1.4 Unless otherwise stated references to schedules and paragraph numbers of schedules are references to the schedules and paragraphs of schedules in this Undertaking
1.5 The singular includes the plural and vice versa
1.6 Reference to the masculine gender the feminine or neuter genders includes reference to both other genders
1.7 References to persons includes natural persons and partnerships firms and unincorporated bodies corporate bodies and all other legal persons of whatever kind and however constituted
1.8 References to Acts of Parliament statutory instruments or Government circulars or sections or paragraphs of any such acts statutory instruments or Government circulars include any re-enactments amendments or replacements of them
1.9 Save as expressly provided by this Undertaking covenants and obligations given by any of the Parties shall attach to the Land and each and every part of it and shall bind their successors in title and assignees or any persons claiming by under or through them without limit of time
2. Recitals
Words and phrases appearing in these recitals have the meanings ascribed to them in clause 1 of this Undertaking
2.1 The Owner and/or Developer is/are the registered proprietor(s) with title absolute of the Land under title number . The land is subject to the Mortgage
2.2 The Developer has the benefit of an Option Agreement/Agreement for Lease/Contract for Sale/Deed of Trust dated to acquire the Land
2.3 The Council is the Local Planning Authority for the purposes of Part III of the Act for the area in which the Land is situate is the local planning authority by whom this unilateral undertaking is enforceable and is a Competent Authority for the purposes of Part I of the Habitats Regulations
2.4 The Land is located within the Relevant Area
2.5 Natural England as the Appropriate Nature Conservation Body for the purposes of the Habitats Regulations has advised that residential development which will lead to a net increase in the number of Dwellings within the Relevant Area should not be permitted without avoidance measures to offset the pressure on the SPA’s conservation interests of additional population within the Relevant Area
2.6 The Council has produced the Avoidance Strategy to provide for avoidance measures through the payment of contributions towards the operation, maintenance and enhancement of the SANG
2.7 A planning obligation is required to mitigate the impact of the proposed development by securing a contribution towards the improvement, operation and maintenance of the SANG. The contribution will not fund the provision of new suitable alternative natural green space and therefore falls outside the scope of Regulation 123(3) of the Community Infrastructure Levy Regulations 2010 as amended.
2.8 The Owner and Developer have indicated a willingness to enter into such obligations upon the terms set out in this Undertaking and will make a contribution in accordance with the Avoidance Strategy if Permission is granted
2.9 The Mortgagee consents to the Owner and Developer giving this Undertaking
3. Statutory Authority
3.1 This Undertaking is made in pursuance of:-
3.1.1 Section 106 of the Act and the obligations contained herein are planning obligations for the purposes of that Section
4. No Restriction
Nothing in this Undertaking shall be construed as restricting the exercise by the Council of any powers exercisable by it under the Act or under any other Statutory enactment or instrument PROVIDED ALWAYS THAT this Undertaking shall remain in full force and effect notwithstanding the terms and conditions of any planning permission which may be or has been issued by the Council or any other appropriate person or Authority pursuant to the provisions of that Act
5. Liability
No person or company shall be liable for any breach of this Undertaking after he or it shall have parted with all interest in the Land SAVE for any subsisting breach of covenant prior to parting with such interest
6. Operative Date
This Undertaking shall take effect on the dating and execution hereof PROVIDED ALWAYS THAT if the Permission shall expire or shall be quashed in any legal proceedings or be revoked or otherwise withdrawn or (without the consent of the Parties) modified by any statutory procedure before Commencement of Development then this Undertaking shall (insofar only as it has not been complied with) forthwith determine and cease to have effect
7. Covenants
The Parties covenant with the Council and undertake for themselves and their successors in title with intention of binding the Land and each and every part thereof, to observe and perform the Planning Obligations in relation to the Land and the stipulations and restrictions set out in this Undertaking
8. Indexation
The SPA Contribution shall be linked to changes in the Index from the date hereof until the date on which such sum is paid by application of the formula in the Second Schedule
9 Interest and Statements of Account
9.1 Without prejudice to any other right remedy or power herein contained or otherwise available to the Council If the SPA Contribution has not been paid to the Council by the Due Date, the Parties shall pay interest on the SPA Contribution for the period from the Due Date to and including the date of payment at the Default Interest Rate
9.2 If any payment of any sum referred to herein shall have become due but shall remain unpaid the Parties shall pay on demand to the Council the Default Interest Rate thereon from the date when the same became due until the date of payment thereof
10. Third Parties
The provisions of the Contracts (Rights of Third Parties) Act 1999 are excluded from the terms of this Deed
11. Nature of This Undertaking
This Undertaking is a Local Land Charge and shall be registerable as such by the Council in its Register of Local Land Charges in accordance with the provisions of the Local Land Charges Act 1975 and Section 106 (11) of the Act
12. Legal Costs
The Parties covenant and undertake to pay on the date hereof the legal costs of the Council necessarily and reasonably incurred in the preparation and completion of this Undertaking
13. Mortgagee
13.1 The Mortgagee hereby agrees that this Undertaking shall take effect as if it were executed by the Parties and the Council and registered as a local land charge immediately prior to the Mortgage
13.2 The Mortgagee shall not be liable for the observance performance or non-performance of the covenants in this Undertaking unless and until it becomes a Mortgagee in possession
13.3 If the Mortgagee becomes a mortgagee in possession any liability as such will cease once it has parted with its interest in the Land
14. Scope of Covenant
Any covenant by the Parties not to do any act or thing includes a covenant not to permit nor allow the doing of that act or thing
15. Severability
It is agreed that if any part of this Undertaking shall be declared unlawful or invalid by a Court of competent jurisdiction then (to the extent possible) the remainder of this Undertaking shall remain in full force and effect
16. Waiver
No waiver (whether express or implied) by the Council of any breach or default by the Parties in performing or observing any of the terms or conditions of this Undertaking shall constitute a continuing waiver and no such waiver shall prevent the Council from enforcing any of the said terms or conditions or from acting upon any subsequent breach or default in respect thereof by the Parties