tT_
Unilateral UndertakingGiven pursuant to Section 106 of the Town and Country Planning Act 1990 relating to land at
Dated 201
BY
(1)(Owner)
(2) (Developer)
With the consent of
(3) (Mortgagee)
TO
(4) WAVERLEY BOROUGH COUNCIL1
THIS UNILATERAL UNDERTAKING is given theday of 201
BY:
- of (“the Owner”)
- Company no. whose registered address is (“the Owner”)
- Company no. whose registered address is (“the Developer”)
- of (“the Developer”)
and with the consent of
- whose registered address is (“the Mortgagee”)
TO:
WAVERLEY BOROUGH COUNCIL of The Burys, Godalming, Surrey GU7 1HR (“the Council”)
WHEREAS:-
(1)Words and phrases appearing in these recitals have the meanings ascribed to them in clause 1 of this Undertaking
(2)The Owner and/or Developeris the registered proprietor with title absolute of the Land under title numbers SY subject to the Mortgage
(3)The Developer has a legal interest in the land arising from Option Agreement/Agreement for Lease/Contract for Sale/Deed of Trust dated and registered against title number SY entry
(4)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 and 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
(5)The Land is located within the Relevant Area
(6)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 Thames Basin Heaths Special Protection Area’s(SPA) conservation interests of additional population within the Relevant Area
(7)The Council has produced the Avoidance Strategy to provide for such avoidance measures through the payment of contributions towards the operation, maintenance andenhancement of suitable alternative natural green space (SANG), promotion of alternative routes, education programmes and improvement of measures to discourage waste tipping
(8)The Owner and/or Developer will make a contribution in accordance with the Avoidance Strategy to mitigate the adverse effects of the development on the SPA.
(9)The Ownerand Developerhave indicated a willingness to enter into such obligations upon the terms set out in this Undertaking
(10) The Mortgagee consents to the Owner andDeveloper entering into this Undertaking
NOW THIS DEED WITNESSETH as follows:
Definitions and Interpretation
1.1In this Unilateral Undertaking (hereinafter referred to as “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."Class Permitted Development"
“the Avoidance Strategy” / the development permitted underthe Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) consisting of
Guidance to developers making applications for new residential development which may have an effect on the Thames Basin Heaths Special Protection Area (SPA) contained in the Thames Basin Heaths Special Protection Area Avoidance Strategy adopted by the Council in December 2009 and updated in May 2013as further updated in July 2016.
"Commencement of Development” / 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
“Default Interest Rate”
"the Development"
“Development Works” / five percentum (5%) per annum above the Bank of England Base Rate.
development of the Land consisting ofin accordance with the Prior Approval Application
the works required to convert the property the subject of the Prior Approval Application properly certified independently by an employed agent at the cost of the Owner
“the Due Date” / the date notified to the Council pursuant to clause 1 of Schedule 1 hereof
“Dispose” / The completion of a tenancy agreement lease licence or transfer in respect of any one or more Dwellings
“Dwelling” / The house flat or apartment or maisonette (and its curtilage) forming part of the Development
“the GPDO”
“Index” / The Town and Country Planning (General Permitted Development) (England) Order 2015 as amended
All Items Index of Retail Prices issued by the Office for National Statistics
“the Habitats Regulations” / The Conservation of Habitats and Species Regulations 2010
"the Land" / All that piece or parcel of land known asregistered at HM Land Registry under title number SY and shown edged red on the Plan
“Legal Costs”
“Mortgage”
“Occupationand Occupied”
"Parties" / mean the Legal Costs of the Borough Council in the amount of £250 necessarily and reasonably incurred in reviewing preparing or completing this Deed
a legal charge dated made between the Owner (1) and the Mortgagee (2) as the same is registered at entries and of the Charges Register of title number SY
means occupation for the purposes of adwelling house 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
the Owner and Developer
"the Plan" / the plan annexed to this Undertaking
“ThePlanning Obligation”
"the Prior Approval Application" / the obligations set out in the First Schedule
the prior approval applicationregistered by the Council underreference no. // for a determination as to whether prior approval is required or given for the Development
“the 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
“SAMM Contribution” / A total sum of £ for the access management and monitoring of the SANG as identified by Natural England
“SANG” / Suitable alternative natural green space at Farnham Park operated and maintained in accordance with the Avoidance Strategy
“the 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
“the SPA Contribution” / the sum of £pounds sterling to be paid by the Owner to the Council towards the operation, improvement and enhancement of the SANG
1.2The 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.
1.3Unless otherwise stated references to clause numbers are references to clauses in this Undertaking.
1.4Unless otherwise stated references to schedules and paragraph numbers of schedules are references to the schedules and paragraphs of schedules in this Undertaking.
1.5The singular includes the plural and vice versa.
1.6Reference to the masculine gender the feminine or neuter genders include reference to both other genders.
1.7References to persons include natural persons and partnerships firms and unincorporated bodies corporate bodies and all other legal persons of whatever kind and however constituted.
1.8References 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.
1.9Save 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.Planning Obligations
This Deed is made in pursuance ofSection 106 of the Act and the obligations contained herein are planning obligations for the purposes of that Section.
A planning obligation is required to mitigate the impact of the Development by securing a contribution towards the improvement, operationand maintenance of the SANG. The contribution will not fund the provision of new suitable alternative natural green spaceand therefore falls outside the scope of Regulation 123(3) of the Community Infrastructure Levy Regulations 2010/948 as amended.
This Deed is made to ensure that the Development is in compliance with the provisions of the GPDO andthe Habitats Regulations.
3.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 ALWAYSTHAT 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.
4.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.
5.Operative Date
This Undertaking shall take effect on the completion hereof.
6.Covenants By The Parties
The Parties covenant with the Council and undertake for themselves and their successors in title
6.1to observe and perform the stipulations and restrictions in relation to the Land set out in the First Schedule hereto;
6.2With intention of binding the Land and each and every part thereof.
7.Third Parties
The provisions of the Contracts (Rights of Third Parties) Act 1999 are excluded from the terms of this Deed.
8.Nature of This Undertaking
This Undertaking is a Local Land Charge and is registrable 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.
9.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.
10.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.
11.Mortgagee
11.1The 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
11.2The 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
11.3If the Mortgagee becomes a mortgagee in possession any liability as such will cease once it has parted with its interest in the Land
12.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.
13.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.
14.Warranties
The Parties warrant that:-
14.1they have full authority to enter into this Deed;
14.2they have investigated as necessary all matters of title to the Land and know of no impediment to the validity of this Deed;
14.3theywill make good any loss to the Council as a result of a breach of this warranty within seven days of a request to do so.
15. Interest and Statements of Account
Without prejudice to any other right remedy or power herein contained or
otherwise available to the Council if theSPA Contribution has not beenpaid to the
Council prior to or on theDue Date, the Parties shall payinterest on the
Contributionfor the period from the due date to andincluding the date of payment
at the Default Interest Rate.
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
DefaultInterest Rate thereon from the date when the same became due until
payment thereof.
16.Notices
16.1Any notice to be given hereunder shall be in writing and shall either be delivered personally or sent by first class pre paid post. The addresses for service on the Parties, and the Borough Council shall be those stated in this Deed or such other address in England for service as the Party to be served may have previously notified in writing.
16.2Each notice served in accordance with sub-clause 7.1 hereof shall be deemed to have been given or made and delivered if by delivery when left at the relevant address or if by letter forty eight (48) hours after posting.
17.VAT
17.1All consideration given in accordance with the terms of this Deed shall be exclusive of any VAT properly payable.
17.2If at any time VAT is or becomes chargeable in respect of any supply made in accordance with the terms of this Deed then to the extent that VAT has not been charged in respect of that supply the person making the supply shall have the right to issue a VAT invoice to the person to whom the supply was made and the VAT shall be paid accordingly.
18.Indexation
The SPA Contribution and SAMM 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.
19.Jurisdiction
This Deed is governed by and interpreted in accordance with the law of England and Wales and the parties submit to the non-exclusive jurisdiction of the courts of England and Wales.
FIRST SCHEDULE
Planning Obligations
The Partiescovenant with the Council
1not later than 28 days before commencement of the Development Worksto give written notice addressed to the Council’s Head of Planning Service via email to quoting reference number CR/of thedateit is intendedDevelopment Works will commence
2to pay to the Council onor before the Due Datethe Indexed SAMM Contribution and SPA Contribution
3not to Commence the DevelopmentWorks nor cause or permit Commencement of the Development Works until the SPA Contribution and SAMM Contribution have been paid to the Council.
4to pay Interest in Default on the SPA Contribution and SAMM Contribution calculated from theDue Date until the date of actual payment.
5not to Dispose of anyDwelling without having paid the SPA Contribution and SAMM Contribution.
6not to occupy nor allow occupation of any Dwelling without having paid the SPA Contribution and SAMM Contribution.
7to pay to the Council on written demand and on a full indemnity basis all reasonable costs fees and expenses incurred or to be incurred by the Council in enforcing or otherwise securing compliance with this Undertaking in the event of any breach non-observance or non-performance thereof by the Parties or anyone acting on behalf of the Parties or by their successors in title.
SECOND SCHEDULE
Formula
Amount payable = the SPA Contribution x (A/B) where:
A= the figure for the Retail Prices Index (All Items) that applied immediately preceding the date of actual payment.
B= the figure for the Retail Prices Index (All Items) that applied when the index was last published prior to the date of this deed.
Amount payable = the SAMM Contribution x (A/B) where:
A= the figure for the Retail Prices Index (All Items) that applied immediately preceding the date of actual payment.
B= the figure for the Retail Prices Index (All Items) that applied when the index was last published prior to the date of this deed.
IN WITNESS whereof the parties hereto have executed this Undertaking as a Deed the day and year first before written
EXECUTED AS A DEED by
In the presence of
Name:
Address:
Occupation:
EXECUTED AS A DEED by affixing
THE COMMON SEAL of
In the presence of
Director
Director/Secretary
EXECUTED as a DEED by the said MORTGAGEE)
In the presence of:)
Authorised Signatory
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