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Waverley Borough Council Committee System - Committee Document

Meeting of the Executive held on 08/04/2008
Unilateral Undertaking







Unilateral Undertaking pursuant to Section 106 of the Town and Country Planning Act 1990 relating to land at

[NNote 1 Insert the address of the Application Site

ote 1      ]

Dated      
[NNote 2 Insert the name of the Applicant for planning permission
ote 2 ]
(Applicant)     


[NNote 3 Insert the names of all those named as the owner of the land at the Land Registry if different to the Applicant. This should include all those with an interest in land to which Section 106 of the Town & Country Panning Act 1990 applies (including mortgagees). If the Applicant is the only landowner, delete this box. Please supply up to date Land Registry Official Copies in respect of all registered titles within the development site.
ote 3 ]
(Landowner)     


given to

Waverley Borough Council

SJW/SJA/44513.00004/7039045.02 Contents (i)
Contents


1 Definitions 1

2 Statutory Authorities 2

3 Conditionality 2

4 Planning Obligations 3

5 Interest and Statements of Account 3

6 Obligations after Disposal of Whole or Part 3

7 Notices 3

8 VAT 4

9 General 4

10 Local Land Charges 4

11 Contracts (Rights of Third Parties) Act 1999 4

12 Costs 4


Costs 4

Schedule 1 – The Application Site 6

Schedule 3 – Planning Obligation 7

Schedule 3 – Planning Obligation 8

Schedule 4 – The Landowner 9




SJW/SJA/44513.00004/7039045.02 Page 11
This Undertaking is

Dated       and     

Given by     

[NNote 4 Insert the name of the Applicant for planning permission

ote 4       ] (the Applicant)

[of NNote 5 If the Applicant is an individual, insert his/her address after "of". If the applicant is a registered company, insert the company number, registered office address and (if different) the principal place of business. Delete the boxes which are not applicable.

ote 5       ]

[registered in England with number [      ]

whose registered office is at[      ] whose principal place of business is at [       ]; and

The Landowner as defined in Schedule 4

To

Waverley Borough Council of the Council Offices, the Burys, Godalming Surrey, GU7 1HR (the Borough Council)

Recitals

The Borough Council is the local planning authority for the purposes of Section 106 of the Act for the area within which the Application Site is situated.

The [Applicant] [and] [Landowner]NNote 6 Delete as appropriate

ote 6 is registered as the freehold owner of the Application Site with title absolute at HM Land Registry under title number [NNote 7 Insert the Land Registry title number(s) for the land comprising the Application Site

ote 7      ].

[The Applicant has an interest in the Application Site]NNote 8 This recital should be included only if the Applicant has a legal interest in the title to the Application Site but is not the landowner.

ote 8

The Application for Planning Permission has been made by the Applicant to the Borough Council to develop the Application Site.

The Parties have agreed that the provisions herein contained should have effect in order to secure the proper tariff in accordance with the Planning Obligations Code of Practice (the Code of Practice) adopted by the Borough Council on 14 June 2007. This Deed reflects the form of agreement that the Borough Council intends to enter into in relation to all relevant sites

It is agreed:

1 Definitions

2 Statutory Authorities
2.1 The obligations contained in Clause 4 and Schedule 3 of this Deed are planning obligations for the purposes of Section 106 of the Act and are enforceable by the Borough Council.
2.2 The obligations contained in Clause 4 and Schedule 3 of this Deed are entered into by the Parties with the intention that these provisions should bind their interests in the freehold of the Application Site as provided by Section 106 of the Act.
2.3 Save where otherwise indicated and where possible pursuant to the relevant statutory provision the covenants in this Deed shall be binding on the Parties and their successors in title to the land stated to be bound.
3 Conditionality
3.1 The obligations contained in Clause 4 and Schedule 3 of this Deed will not have effect unless:
3.1.1 the Planning Permission has been granted;
3.2 If the Planning Permission shall expire prior to the carrying out of a Material Operation or shall at any time be revoked or modified without agreement this Deed shall forthwith determine and cease to have effect.
3.3 If the Planning Permission is quashed before the carrying out of a Material Operation then this Deed shall absolutely determine and become null and void but without prejudice to the rights of any Party against the other.
4 Planning Obligations
4.1 The Landowner and the Applicant accept the restrictions and requirements in this Clause and:
4.1.1 will comply with the planning obligations set out herein and in Schedule 3 of this Deed; and
4.1.2 will serve a notice upon the Borough Council fourteen (14) days in advance of the first Material Operation taking place; and
4.1.3 confirm that no person other than the Landowner holds an interest of ownership in this Land.

5 Interest and Statements of Account
5.1 Without prejudice to any other right remedy or power herein contained or otherwise available to the Borough Council if any payment of any sum referred to herein shall have become due but shall remain unpaid for a period exceeding thirty (30) days the Parties shall pay on demand to the Borough Council interest thereon at the interest rate of five percentum (5%) per centum per annum above the Bank of England Base Rate from the date when the same became due until payment thereof.
6 Obligations after Disposal of Whole or Part
6.1 The Parties shall cease to have any obligation or liability under the terms of this Deed in relation to the Application Site or any part thereof once it shall have parted with all its interest in the Application Site or that part thereof but without prejudice to liability for any subsisting breach of covenant prior to parting with such interest.
6.2 Subject to Clause 6.3, notwithstanding the foregoing sub-clause the obligations under this Deed shall not be enforceable against the persons who purchase (including purchasers of long leases) for their own occupation by themselves or their lessees tenants or others individual Dwellings or Commercial Buildings erected or to be erected on the Application Site nor against any statutory undertaker or public authority which acquires any part of the Application Site or an interest in it for the purposes of its statutory undertaking or functions (other than housing functions).
6.3 If the Applicant or Landlord permits the occupation of any Dwelling or any part of any Commercial Building in circumstances that would be a breach of the obligation in Schedule 3 of this Deed and such obligation shall not be enforceable against the purchaser then, on notice from the Borough Council, all further development on the Application Site shall cease until the breaches have been remedied to the satisfaction of the Borough Council
7 Notices
7.1 Any 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 Applicant, the Landowner, 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.
7.2 Each 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.
8 VAT
8.1 All consideration given in accordance with the terms of this Deed shall be exclusive of any VAT properly payable.
8.2 If 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.
9 General
9.1 The headings appearing in this Deed are for ease of reference only and shall not affect the construction of this Deed.
9.2 For the avoidance of doubt the provisions of this Deed (other than those contained in this sub-clause) shall not have any effect until this document has been dated.
9.3 Any covenant in this Deed by which the relevant Party is not to do an act shall be construed as if it were a covenant not to do or permit or suffer to be done such act.
9.4 Any covenant contained herein whereby the relevant Party is not to omit to do an act or thing shall be construed as if it were a covenant not to omit or permit or suffer to be omitted such act.
9.5 References to statutes by-laws regulations orders and delegated legislation shall include any statute by-law regulation order or delegated legislation re-enacting or made pursuant to the same.
9.6 References to the Landowner and the Applicant include references to their successors in title as owners of the Application Site or any part thereof and this Deed shall bind such successors in title of the Application Site or any part thereof.
10 Local Land Charges

11 Contracts (Rights of Third Parties) Act 1999 12 Costs

– The Application Site

All that piece or parcel of land comprising [NNote 12 Insert a description of the Application Site (i.e. its address or location)

ote 12       ], outlined red for identification purposed only on the Plan being land over which the Application for Planning Permission is made.

     

Schedule 2 – The Plan

NNote 13 After this page include a plan showing the boundary of the Application Site for which planning permission is sought (sometimes referred to as the "red-line" plan)

ote 13

     

Schedule 3 – Planning Obligation

1 The Parties covenant with the Borough Council so as to bind the Application Site to pay the Infrastructure Contribution to the Borough Council within twenty eight (28) days of the carrying out of a Material Operation.
2 The Infrastructure Contribution as at the date of this Deed is calculated according to the “Basis for Calculating Formulae and Charges” which forms part of the Planning Obligation Code of Practice and as agreed on the s106 Standard Charges Sheet.

Schedule 4 – The Landowner

NNote 14 Include the name, address, company number (if applicable) and relevant Land Registry title number for each landowner with an interest in the Application Site. If there is a mortgage over the property, the mortgagee should be listed in Schedule 4.

ote 14

Name: [       ]

Address: [      ]

Company number (if applicable): [      ]

Land Registry Title Number: [       ]


Name: [      ]

Address: [      ]

Company number (if applicable): [       ]

Land Registry Title Number: [      ]


Name: [      ]

Address: [      ]

Company number (if applicable): [       ]

Land Registry Title Number: [      ]


Executed as a deed and delivered on the date appearing at the beginning of this Deed

NNote 15 The Applicant and each Landowner listed in Schedule 4 must execute the Undertaking as a deed:

If a party is a company then either:

If a party is an individual, he or she should sign the undertaking in front of a witness. The witness should then sign his or her name next to that of the party and then print his or her (i.e. the witness's) name and address. The words "duly authorised for and on behalf of" should be deleted.



Comms/exec/2007-08/299ote 15












Signed by
duly authorised for and
on behalf of
the Applicant
)
)
)
)

Signed by
duly authorised for and
on behalf of
the Landowner

)
)
)
)










Signed by
duly authorised for and
on behalf of
the Landowner

)
)
)
)

Notes on the Completion of the Unilateral Undertaking

*** The Council strongly recommends that all parties take independent legal advice before entering into this Undertaking ***