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Classification: OFFICIAL-SENSITIVE

THIS TEMPLATE WILL ONLY PERMIT LIMITED CHANGES TO BE MADE.

PLEASE COMPLETE THE APPROPRIATE FIELDS IN THIS TEMPLATE (SHOWN IN RED TEXT) AND E-MAIL IT, TOGETHER WITH UP TO DATE (I.E. LESS THAN ONE MONTH OLD) EVIDENCE OF LAND OWNERSHIP AND A SOLICITOR’S UNDERTAKING FOR THE COUNCIL’S LEGAL FEES (OR A CHEQUE PAYABLE TO “CHILTERN DISTRICT COUNCIL” BY WAY OF PAYMENT ON ACCOUNT), TO THE PLANNING OFFICER DEALING WITH YOUR APPLICATION AND TO [email protected]

IF YOU HAVE ANY DIFFICULTIES IN COMPLETING THIS TEMPLATE, FOR EXAMPLE, IF THERE ARE INSUFFICIENT FIELDS FOR ALL OF THE OWNERS, PLEASE INCLUDE DETAILS IN YOUR E-MAIL AND THE COUNCIL WILL DEAL WITH THE REQUIRED AMENDMENTS.

YOU WILL BE CONTACTED REGARDING THESE AMENDMENTS AND ANY FINAL AMENDMENTS WHICH MAY BE REQUIRED TO GIVE EFFECT TO THE PLANNING OFFICER’S INSTRUCTIONS.

PLEASE REMEMBER TO INCLUDE WITH YOUR EMAIL A PLAN SHOWING THE LAND WHICH IS THE SUBJECT OF THE PLANNING APPLICATION EDGED IN RED.

PLEASE NOTE THAT IF YOU SUGGEST SUBSTANTIAL AMENDMENTS TO THIS DOCUMENT, THIS MAY RESULT IN ADDITIONAL LEGAL COSTS BEING INCURRED.


mailto:[email protected]


DATED 20 xx

[FREEHOLD OWNER’S NAME(S)]

[LESSEE / DEVELOPER NAME(S)]

[MORTGAGE COMPANY’S NAME]

TO

CHILTERN DISTRICT COUNCIL

UNILATERAL UNDERTAKINGSECTION 106 OF THE

TOWN AND COUNTRY PLANNING ACT 1990

Relating to

[ADDRESS OF THE PROPERTY]

Chiltern and South Bucks Joint Legal ServicesCouncil OfficesCapswoodOxford RoadDenhamBuckinghamshireUB9 4LH

File Ref:



THIS DEED OF UNILATERAL UNDERTAKING is made

the day of 20xx

BY THE FOLLOWING PARTIES:-

(1) [FREEHOLDER'S NAME] (Company Registration Number [ ]) of [address (registered office if a company)] ("the Owner") [and]

(2) [LESSEE NAME] (Company Registration Number [ ]) of [address (registered office if a company)] ("the Lessee”) [and]

(3) [DEVELOPER'S NAME] (Company Registration Number [ ]) of [address (registered office if a company)] ("the Developer") [and]

(4) [NAME OF MORTGAGE COMPANY] (Company Registration Number [ ]) of [address (registered office if a company)] ("the Mortgagee")

TO:-

CHILTERN DISTRICT COUNCIL of King George V House, King George V Road, Amersham, Buckinghamshire HP6 5AW (“the Council”)

WHEREAS:-

(1) The Council is the local planning authority for the purposes of the Planning Act for the area in which the Land is situated and by whom the obligations contained in this Deed are enforceable.

(2) The Council is desirous of facilitating affordable housing pursuant to the policies of the Chiltern District Local Plan adopted 1 September 1997 (including Alterations adopted 29 May 2001), consolidated September 2007 and November 2011 the policies of the Council's Core Strategy and the Council's Affordable Housing Supplementary Planning Document

(3) 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 provision of the housing accommodation

(4) The Council’s Core Strategy (Policy CS8) requires sites with a net increase of one to four dwellings to make a financial contribution for each new dwelling towards the provision of affordable housing elsewhere in the Chiltern district



(5) The Affordable Housing Contribution has been calculated in accordance with the Council’s Affordable Housing Supplementary Planning Document taking into account the National Planning Practice Guidance

(6) The Owner is the freehold owner of the Land which is registered with the Land Registry under title number [Land Registry Number] subject to a legal charge in favour of the Mortgagee dated [insert date of charge]

(NOTE – IF THERE IS A MORTGAGEE THEN THE REMAINDER OF THIS DEED WILL NEED TO REFER TO THE MORTGAGEE WHERE RELEVANT OBLIGATIONS ARE BEING GIVEN)

(7) [The Lessee is [give full description of their interest in the Land ]]

(8) [The Developer intends to develop the Land pursuant to the Planning Permission and has entered into a [sale contract conditional on planning permission OR option agreement] dated [DATE] with the Owner [which interest is registered at the Land Registry against Title number [NUMBER]].

(NOTE – IF THERE IS A DEVELOPER / LESSEE OR OTHER THIRD PARTY THE REMAINDER OF THIS DEED WILL NEED TO REFER TO THE DEVELOPER /LESSEE / THIRD PARTY WHEREVER “THE OWNER” IS REFERRED TO)

(9) The Owner / Developer has submitted the Planning Application to the Council for Planning Permission for the Development on the Land and this Deed forms part of the Planning Application

(10) The Owner [and the Lessee / Developer / Mortgagee] [has/have] entered into this Deed in support of the Planning Application pursuant to the provisions of the Operative Acts upon the terms and conditions hereinafter appearing with the intention that it shall be binding not only upon the parties to this Deed but also upon their successors in title and any persons claiming through under or in trust for them

NOW THIS DEED WITNESSETH as follows:-

1. OPERATIVE PART

1.1. In this Deed the following words and expressions shall unless the context otherwise permits or requires have the following meanings:-



Words and Expressions Meanings

“Affordable Housing” Social rented, affordable rented and intermediate housing provided to eligible households whose needs are not met by the market as fully defined in the National Planning Policy Framework




“Affordable Housing Contribution”

The sum of [words] (£ ) 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 (and the Developer/the Lessee) that will be spent on projects/initiatives which facilitate the increased provision of affordable housing at off-site locations

“Bond” The bond to be entered into by the Owner with a bank, building society or other similar financial institution or the National House Building Council or a company of good financial standing, the identity of which has been approved by the Council in writing prior to the Owner entering into the bond, substantially in the form appearing in the Second Schedule

“Building Regulations” the Building Regulations 2010 (as amended)

“Commencement of Development”

Means (for the Purposes of this Deed 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 Land

PROVIDED ALWAYS THAT the following operations shall not be treated as material operations for the purposes of this Deed only:

(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

and “Commence Development” shall be construed accordingly




“Completion of the Development”

The day on which a Compliance Certificate shall be issued in respect of the Development

“Compliance Certificate”

As the case may be either a completion certificate issued by the local authority or a final certificate issued by an approved inspector under the Building Regulations

“the Development” [description of planning application] being the development described in the Planning Permission

“Dwelling” any dwelling (including a house flat or maisonette) forming part of the Development and “Dwellings” shall be construed accordingly

“the HSD” The Council’s Head of Sustainable Development or such other proper officer of the Council for the time being responsible for planning in the administrative area of the Council

“Index” All In Tender Price Index published by the Building Cost Information Service of the Royal Institution of Chartered Surveyors or any successor organisation and if the All In Tender Price Index ceases to be published the Council shall in its absolute discretion use an alternative index

“Interest” Interest at 4% above the base lending rate of the Bank of England from time to time

“Land” All that land and buildings situate at and known as [describe as per the Land Registry's Official Copy Entries] as shown for identification only edged red on the Plan hereto [NOTE – THIS NEEDS TO INCLUDE THE WHOLE AREA OF THE PLANNING APPLICATION]

“Occupation” The occupation of the Development or any part thereof solely for residential purposes and “Occupy” and “Occupied” shall be construed




accordingly

“Off Plan” Prior to completion of the relevant building

“Operative Acts” Section 106 of the Planning Act, Section 111 of the Local Government Act 1972, Section 1 of the Localism Act 2011, Sections 8, 9 and 609 of the Housing Act 1985 together with all other statutory powers and acts pursuant to which the parties shall be empowered to enter into this Deed

"Plan" The plan attached to this Deed showing the Land edged red thereon

“Planning Act” The Town and Country Planning Act 1990

“Planning Application” The application for planning permission for the Development in relation to the Land which has been registered by the Council under reference number [ ]

“Planning Permission” Any planning permission subject to conditions granted pursuant to the Planning Application

2. CONSTRUCTION OF THIS DEED

In this Deed unless the context indicates or requires otherwise:-

2.1. References in this Deed to Clauses, Recitals, Paragraphs and Schedules are to Clauses, Recitals, Paragraphs and Schedules in this Deed

2.2. Singular words shall include the plural and vice versa

2.3. Words of masculine gender include the feminine and neuter genders and words denoting actual persons include companies, corporations and firms and all such words shall be construed interchangeably in that manner



2.4. Wherever there is more than one person named as a party and where more than one party undertakes an obligation covenant restriction or requirement all their obligations covenants restrictions or requirements can be enforced against all of them jointly and against each individually unless there is an express provision otherwise

2.5. Any reference to an Act of Parliament shall include any modification extension or re-enactment of that Act for the time being in force and shall include all subordinate instruments orders plans regulations permissions and directions for the time being made issued or given under that Act or deriving validity from it

2.6. References to any party to this Deed shall include the successors in title to that party and to any deriving title through or under that party and in the case of the Council or any other body the successors to its statutory functions

2.7. The headings are for reference only and shall not affect the construction of this Deed

2.8. Any covenant by the Owner [and/or the Lessee / Developer / Mortgagee] not to do any act or thing shall be deemed to include an obligation not to cause, permit or suffer such act or thing to be done by another person or body

3. STATUTORY AUTHORITY

3.1. To the extent that this Deed contains obligations on the part of the Owner [and/or the Lessee / Developer / Mortgagee] as appropriate those obligations are (insofar as they are capable of being so) planning obligations pursuant to Section 106 of the Planning Act and the said obligations shall:-

3.1.1.bind the Land;

3.1.2.be enforceable by the Council;

3.1.3.be enforceable against the Owner [and the Lessee / Developer / Mortgagee] their successors in title to the Land or any part thereof and all persons deriving title to the Land or any part thereof through or under it them or any of them

4. LEGAL EFFECT

4.1. This Deed is made pursuant to the Operative Acts and is a planning obligation for the purpose of Section 106 of the Planning Act



4.2. The provisions of this Deed shall come into effect on the date hereof.

4.3. This Deed shall operate as a local land charge on the Land and pursuant to the Local Land Charges Act 1975, as amended shall be registered in the register of Local Land Charges by the Council

4.4. Nothing in this Deed shall prejudice or affect the rights powers duties and obligations of the Council in the exercise by it of its statutory functions and the rights powers duties and obligations of the Council under private or public statutes bye-laws orders and regulations may be fully and effectively exercised

4.5. No provisions of this Deed shall be enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999

4.6. This Deed shall be determined and have no further effect if before the Commencement of Development the Planning Permission:(a) expires (b) is varied or revoked other than at the request of the Owner

[or Developer]; or(c) is quashed following a successful legal challenge

4.7 In the event that the Council at any time hereafter grants a planning permission pursuant to an application made under section 73 of the Planning Act in respect of any condition on the Planning Permission references in this Deed to the Planning Application, the Planning Permission and/or the Development shall be deemed to include any such subsequent planning application, planning permission and/or development granted as aforesaid and this Deed shall thenceforth take effect and be read and construed accordingly

5. THE OWNER’S [AND THE LESSEE'S] OBLIGATIONS

5.1. The Owner [and the Lessee] covenant(s) with the Council to observe and perform the obligations, covenants, restrictions and requirements set out in the body of this Deed and in the Schedules hereto

6. [MORTGAGEE'S [AND DEVELOPER’S] CONSENT

6.1. The Mortgagee hereby consents to the completion of this Deed and agrees that the security of the mortgage over the Land shall take effect subject to this Deed and for the avoidance of doubt the Mortgagee agrees that it shall be bound by the Owner’s obligations in this Deed in the event that it becomes a mortgagee in possession of the Land or exercises any form of control over the Land whether through an administrator (including an administrative receiver) or



receiver or manager or otherwise or carries out or procures the carrying out of the Development.

6.2. The Developer hereby consents to the completion of this Deed and agrees that any interest it has in the Land takes effect subject to this Deed and it shall be bound by the Owner’s obligations in this Deed in the event that it becomes a successor in title to the Land or any part thereof.]

7. LEGAL COSTS AND ENFORCEMENT COSTS

7.1. The Owner covenants with the Council to pay prior to the issue of the Planning Permission the Council’s reasonable legal costs and disbursements incurred in connection with this Deed

7.2. The Owner covenants that it will reimburse the Council all legal and administrative costs reasonably and properly incurred in connection with the enforcement of any of the provisions of this Deed should, in the reasonable opinion of the Council, the need for enforcement arise

7.3. The amount of the legal and administrative costs which may be sought under clause 7.2 above shall be those certified by the HSD and the Council’s Head of Legal and Democratic Services.

7.4. Payment of the legal and administrative costs under clause 7.2 shall be made within 14 days of a written demand for payment being served upon the Owner.

8. MISCELLANEOUS

8.1. The Owner [and the Lessee / Developer / Mortgagee] expressly agree(s) and declare(s) that:-

8.1.1.Insofar as any clause or clauses of this Deed in whole or in part 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 Deed

8.1.2.Subject to compliance with clause 9 [Check clause number remains correct] no person shall be liable for a breach of any of the planning obligations or other provisions of this Deed after it shall have parted with its entire interest in the Land but without prejudice to liability for any subsisting breach arising prior to parting with such interest

8.1.3.The covenants contained in this Deed shall not be enforceable against a statutory undertaker holding an interest in the Land solely for the purposes of its undertaking



8.1.4.The Owner [and the Lessee / Developer] shall permit the Council and its authorised employees and agents to enter the Land at all reasonable times for the purpose of verifying whether or not any obligation arising under this Deed has been performed or observed

8.1.5.This Deed is not to be interpreted as the granting of any consent or approval under any legislation whatsoever

9. CHANGE IN OWNERSHIP

9.1. The Owner [and the Lessee / Developer / Mortgagee] agree(s) to give the Council (addressed to the HSD) immediate written notice of any change in ownership of any interest in the Land which occurs prior to the obligations under this Deed having been discharged

9.2. The notice referred to in Clause 9.1 shall be sent by Signed For post and provide details of the date of the change in ownership, details of the new owner’s [and lessee's/developer's/mortgagee's] full name and usual address or registered office address (if a company), the Planning Application reference number [ ] and a plan outlining the area of land which is subject to the change in ownership

10. LATE PAYMENTS

10.1. Where any payment to the Council falls due hereunder Interest shall be payable on the amount of such payment from the due date of payment until the date of actual payment

11. WAIVER

11.1. The parties to this Deed agree that no waiver (whether express or implied) by the Council of any breach or default in performing or observing any of the obligations covenants restrictions requirements terms or conditions of this Deed shall constitute a continuing waiver and no such waiver shall prevent the Council from enforcing any of the relevant terms or conditions or from acting upon any subsequent breach or default

12. JURISDICTION

12.1. The Owner [and the Lessee / Developer / Mortgagee] agree(s) that this Deed is governed by and interpreted in accordance with the laws of England



FIRST SCHEDULE

The Owner [and the Lessee/Developer] covenant(s) with the Council as follows:

Notice of Commencement of Development

1. At least ten (10) working days prior to Commencement of Development to give the Council written notice confirming the date of Commencement of Development (addressed to the HSD at the Council's address at the head of this Deed or to such other address as at the relevant date of service appears on the Council's website for the service of documents) which notice shall be sent by Signed For post and 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 Commencement of Development and quoting the Planning Application reference number [ ]

2. Not to Commence Development unless and until the written notice referred to in paragraph 1 above has been given to the Council

Bond

3. To lodge a Bond with the Council in a sum identical to the Affordable Housing Contribution (as Index Linked) prior to the Commencement of Development and not to Commence Development until such a Bond has been lodged with the Council

4. All work on the Development shall cease if at any time the Bond:4.1. Has less than 13 weeks until it expires; and4.2. Any of the covenants which it covers remain to be fulfilled;

and4.3. It has not been replaced by a further bond in the same terms

and quantum as the bond it replacesIn such a situation work on the Development shall not resume until a replacement Bond in the same form and quantum as the Bond it replaced has been provided to the Council

5. The restriction in paragraph 4 applies to any replacement bond and shall continue to apply to future replacement bonds until such time as all the obligations have been complied with to the satisfaction of the Council.

Payment of Affordable Housing Contribution



6. To check with the HSD the calculation of the Affordable Housing Contribution including index linking immediately prior to payment and to agree the amount due and the method of payment of the Affordable Housing Contribution

7. To provide the Council with written notice of the Completion of the Development, including the provision of a copy of the Compliance Certificate, within seven (7) days of the same occurring (addressed and sent as per the requirements of paragraph 1 above) together with details of the person or body who shall constitute the Owner at the time of Completion quoting the Planning Application reference number [ ]

8. In the event that the Dwellings forming part of the Development are sold Off Plan to give the Council written notice of the date upon which the final Dwelling has been so sold within seven (7) days of the same occurring

9. To pay the Affordable Housing Contribution in full to the Council in cleared funds using the agreed method referred to in paragraph 3 above and quoting the Planning Application reference number [

] within 14 days of whichever of the following events shall occur first in time:9.1. The Completion of the Development;9.2. The first anniversary of the Commencement of Development;

or9.3. In the event of the Dwellings forming part of the

Development being sold Off Plan, the date on which the final Dwelling has been so sold



SECOND SCHEDULE

BY THIS BOND we

(1) [name] (Company Registration Number [ ]) of [address (registered office if a company)] ("the Owner") [and]

(2) [name] (Company Registration Number [ ]) of [address (registered office if a company)] ("the Developer") [and]

(3) [name] (Company Registration Number [ ]) of [address (registered office if a company)] ("the Surety")

ARE BOUND to Chiltern District Council of King George V House, King George V Road, Amersham, Buckinghamshire HP6 5AW (“the Council) pursuant to a Deed (“the Deed”) entered into under Section 106 of the Town and Country Planning Act 1990 dated [DATE] and made between [LIST PARTIES] which provided, inter alia for the payment of a financial contribution towards the provision of off-site affordable housing (“the Affordable Housing Obligations”) in the sum of [AMOUNT IN WORDS] (£AMOUNT IN FIGURES) for payment of which sum to the Council the Owner, the Developer and the Surety bind themselves jointly and severally by this Bond.

1. The Council by way of a planning permission dated [DATE] issued under reference number [ ] (“the Planning Permission”) granted permission to the Developer for the development of land situated at [ADDRESS] for [DESCRIPTION OF DEVELOPMENT] subject to certain conditions listed in the Planning Permission and to the terms and obligations of the Deed

2. Any alterations to the Deed which may be made by agreement between the Owner, the Developer (or their successors in titles or assigns) and the Council in the terms of the Deed or the giving by the Council or its successors of any extension of time for performing the said work or any of the stipulations contained in the Deed or any other forgiveness or forbearance on the part of the Council or its successors to the Owner the Developer or their successors or assigns whether done with or without the assent of the Surety shall not in any way release the Surety from their liability under the above written bond unless the effect of any alteration to the terms of the Deed is to revoke the obligations in the Deed relating to Affordable Housing in their entirety.

2. If the Owner or Developer shall be adjudicated bankrupt or shall go into liquidation voluntarily or otherwise or shall execute a deed of assignment for the benefit of or otherwise compound with its creditors (except for the purpose of reconstruction or amalgamation), or if at any time payment of the Affordable Housing



Contribution (as defined in the Deed) or any part thereof fails to be made to the Council in accordance with the Deed (such failure being sufficiently proved for the purposes of this Clause upon the issue of a letter by the Council to that effect) then, without prejudice to the Council’s other rights of enforcement, the Surety will pay to the Council the sums of money referred to in this Bond

3. In the event that the Owner and the Developer or their respective successors in title or assigns shall duly perform and observe the obligations contained in the Deed relating to Affordable Housing then this Bond shall be void and have no effect but shall otherwise remain in full force and effect for a period of five years from the date hereof

4. The benefit of this Bond is personal to the Council and any successors thereto and is not capable of being assigned by the Council.

5. Unless otherwise expressly stated nothing in this Bond will create or confer any right or other benefit under the Contracts (Rights of Third Parties) Act 1999 in favour of any person other than the Council

[APPROPRIATE ATTESTATION CLAUSES FOR OWNER, DEVELOPER & SURETY]

IN WITNESS whereof the parties hereto have executed this Deed on the day and year first before written

[INCLUDE SIGNATURES OF ALL PARTIES TO THE DEED, SEPARATELY AND IN THE APPROPRIATE FORM]

[EXECUTION CLAUSE FOR INDIVIDUALS]

SIGNED AS A DEED BY[insert name of party]

Signature

in the presence of:



WIT

NESS

Witness Signature

Name ……………………………………………………..

Address ……………………………………………………..

……………………………………………………..

……………………………………………………..

Occupation

……………………………………………………..

SIGNED AS A DEED BY[insert name of party]

Signature

in the presence of:

WIT

NESS

Witness Signature

Name ……………………………………………………..

Address ……………………………………………………..

……………………………………………………..

……………………………………………………..

Occupation

……………………………………………………..

[EXECUTION CLAUSE FOR COMPANY WITHOUT SEAL]

EXECUTED AS A DEED BY[insert name of party] acting by [two Directors]/ [a Director and the Company Secretary]

Signature [Director]



Signature [Secretary / Director]

OR

EXECUTED AS A DEED BY[insert name of party] acting by a Director


in the presence of:

WIT

NESS

Witness Signature

Name ……………………………………………………..

Address ……………………………………………………..

……………………………………………………..

……………………………………………………..

Occupation

……………………………………………………..

[EXECUTION CLAUSE FOR COMPANY WITH SEAL]

EXECUTED AS A DEED by affixing the Common Seal of [insert name of party] in the presence of:




Signature [Secretary / Director]

[EXECUTION CLAUSE FOR LIMITED LIABILITY PARTNERSHIP WITHOUT SEAL]

EXECUTED AS A DEED BY[insert name of party] acting by two members

Signature [Member]

Signature [Member]

OR

EXECUTED AS A DEED BY[insert name of party] acting by a member

Signature [Member]

in the presence of:



WIT

NESS

Witness Signature

Name ……………………………………………………..

Address ……………………………………………………..

……………………………………………………..

……………………………………………………..

Occupation

……………………………………………………..

[EXECUTION CLAUSE FOR LIMITED LIABILITY PARTNERSHIP WITH SEAL]

EXECUTED AS A DEED by affixing the Common Seal of [insert name of party] in the presence of:

Signature [Member]

Signature [Member]

[EXECUTION CLAUSE FOR MORTGAGEE]

EXECUTED AS A DEED BY[insert name of party] acting by [a signatory] [two signatories] duly authorised by the Board of Directors



Signature

Signature


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