Public Open Spaces

Ended on the 8th March 2019
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APPENDIX 4

Template POS Section 106 Agreement

Schedule

Public Open Space Provisions

Grounds Maintenance Contract

means the contract between a provider of Grounds Maintenance Services and the Council

Public Open Space Completion Certificate

means a certificate issued by the Council to the effect that the public open spaces has been laid out in accordance with the public open spaces Scheme to the reasonable satisfaction of the Council and the issue of an public open spaces Completion Certificate shall commence the public open spaces Maintenance Period in respect of the whole or the part of the public open spaces to which the public open spaces Completion Certificate relates

Public Open Space Final Certificate

means a certificate issued by the Council which shall be conclusive evidence that the public open spaces has been properly maintained during the public open spaces Maintenance Period to the effect that the public open spaces is finally complete and any defects which have

become manifest since the issue of the public open spaces Completion Certificate have been remedied and all outstanding works identified in the aforementioned Certificate have been completed together with, where applicable any outstanding works required by the ROSPA Final Inspection Report

Public Open Space Maintenance Period

means a period of at least 12 months commencing with the issue of the public open spaces Completion Certificate and ending with the issue of the public open spaces Final Certificate

Public Open Space

means the areas to be provided within the Application Site for public recreation and amenity space to meet the

standards specified within Appendix B of the Council's Open Space Supplementary Document June 2009 or any successor or revised open space supplementary planning document in accordance with the public open spaces Scheme and any Reserved Matters Application and [for outline applications] provided in a location to be agreed in writing with the Council. OR [for full planning applications] to be provided in the location coloured blue for identification purposes on the Plan {} which are to be permanently retained and maintained as public open space to serve the Development

Public Open Space Commuted Maintenance Sum

means the sum that shall be paid by the Owner to the Council prior upon the public open spaces Transfer for the purposes of future maintenance of the public open spaces to be calculated in accordance with the formula set out in Part [

] of the [ ] Schedule


Public Open Space Scheme

means a written detailed scheme: of works for the laying out and maintenance of the public open spaces to include

(i) the design, specification and landscaping including any play equipment and associated equipment, boundary treatments (ii) the programme for the delivery of the public open spaces Works

(iii) details of the maintenance programme that shall be implemented to repair and replace equipment, facilities or landscaping to be submitted to and approved in writing by the Council

Public Open Space Works

means the works to be carried out in accordance with the approved public open spaces Scheme

Royal Society for the Prevention of Accidents (RoSPA) Report

means a report and risk assessment issued by an independent qualified assessor and dated not more than 11 months prior to the date on which it is provided to the Council confirming the safety of all elements of the public open spaces including any SUDS, play area equipment and associated equipment on the public open spaces

Royal Society for the Prevention of Accidents (RoSPA) Final Inspection Report

means a report and risk assessment issued by an independent qualified assessor and dated no more than three months prior to the date on which it is provided to the Council confirming the safety of all elements of the public open spaces including any SUDS play area equipment and associated equipment on the public open spaces at the end of the public open spaces Maintenance Period


The Owners hereby covenant and undertake as follows:

Public Open Space Delivery

  1. Commencement of Development shall not take place until:
    1. the Owners have submitted the public open spaces Scheme to the Council which for the avoidance of doubt shall be separate and additional to any landscaping scheme or any other scheme required to be submitted in accordance with a planning condition; and
    2. the Council has approved the public open spaces Scheme in writing (such approval not to be unreasonably withheld or delayed)
  2. Prior to Occupation of 70% of the Dwellings the Owner shall complete the public open spaces to the reasonable satisfaction of the Council as evidenced by the public open spaces Completion Certificate.
  3. Upon the completion of the public open spaces Works the Owners shall notify the Council in writing
  4. 40 Working Days from receipt of the Notice served pursuant to paragraph 3 above the Council shall inspect the public open spaces Works and shall, if satisfied that the works have been carried out in strict accordance with the public open spaces Scheme and the Owner has provided to the Council a satisfactory ROSPA Report together with transferable guarantees and warranties relating to play area equipment and other associated equipment, issue the public open spaces Completion Certificate.
  5. In the event that the Council inspects the public open spaces Works and identifies necessary remedial works (which it will notify to the Owners in writing within 15 Working Days of the inspection having been carried out), the Owners shall carry out such remedial works to the reasonable satisfaction of the Council and send written Notice to the Council to re-inspect the public open spaces.
  6. The procedure set out in paragraphs 3, 4 and 5 shall be repeated in respect of the public open spaces Works until such time as the Council either;
    1. issues the public open spaces Completion Certificate or;
    2. fails to inspect the public open spaces Land within 40 Working Days of the receipt of

a written Notice where proof of delivery to the Councils Head of Development Services can be provided, in which case the public open spaces Completion Certificate shall be deemed to have been issued 40 Working Days following receipt of the Notice or;

6.3 fails to issue the public open spaces Completion Certificate within 40 Working Days of the inspection where no remedial works have been identified in which case the public open spaces Completion Certificate shall be deemed to have been issued 40 Working Days following the inspection

Public Open SpaceMaintenance

  1. The Owner shall;

7.1 maintain the public open spaces in strict accordance with the public open spaces Scheme until such time as the public open spaces is transferred to the Council and


7.2. from the date the public open spaces Certificate of Practical Completion is issued or deemed issued allow free unrestricted use and access of the public open spaces for the general public at all times of the day and night PROVIDED THAT use and access maybe restricted in the following circumstances:

7.2.1 in the event of emergency such that access and use by the general public should be prevented by reasons of health and safety

7.2.2 in the event that any works to the public open spaces need to be undertaken which would necessitate, as a direct result of the said works, access and use by the general public being prevented PROVIDED THAT if any such closure is to last longer than 7 Working Days or for more than 10 Working Days in any 3 month period then the Owner shall first obtain the Council's prior written approval to the closure.

  1. The Owner shall notify the Council in writing at the end of the public open spaces Maintenance Period and invite the Council in writing to inspect the public open spaces with a view to issuing the public open spaces Final Certificate
  2. 40 Working Days from receipt of the Notice served pursuant to paragraph 8 above the Council shall inspect the public open spaces and shall, if satisfied that the public open spaces has been properly maintained during the public open spaces Maintenance Period and the Owner has provided to the Council a satisfactory ROSPA Final Inspection Report together with any transferable guarantees and warranties relating to play area equipment and other associated equipment not previously supplied to the Council shall issue the public open spaces Final Certificate.
  3. In the event that the Council inspects the public open spaces and identifies necessary works (which it will notify to the Owners within writing within 15 Working Days of the inspection being carried out) the Owners shall carry out remedial works to the reasonable satisfaction of the Council and send written Notice to the Council to re-inspect the public open spaces.
  4. The procedure set out in paragraphs 8, 9 and 10 shall be repeated in respect of the public open spaces until such time as the Council either
    1. issues the public open spaces Final Certificate; or
    2. fails to inspect the public open spaces within 40 Working Days of the receipt of a written Notice where proof of delivery to the Councils Head of Development Services can be provided in which case the public open spaces Final Certificate shall be deemed to have been issued 40 Working Days following receipt of the Notice; or
    3. fails to issue the public open spaces Final Certificate within 40 Working Days of the inspection where no remedial works have been identified in which case the Public Open Space Final Certificate shall be deemed to have been issued 40 Working Days following the inspection.

Public Open Space Transfer

  1. The Owner shall continue to maintain the public open spaces in accordance with the public open spaces Scheme and permit unrestricted public access in accordance with paragraph 7 above until its transfer

  1. Prior to commencement of development the Owner shall offer to transfer the public open spaces Land to the Council on the terms set out in the [ ] Schedule hereto, such offer to be in writing, addressed to the Head of Development Services and served on the Council via recorded delivery ("the Offer"). For the avoidance of doubt the Owner shall pay the costs of the transfer of the public open spaces and the transfer will contain a covenant that the public open spaces shall not be used for anything other than amenity open space for the enjoyment of the general public and the Council shall confirm in whether it accepts the Offer within 40 Working Days of receipt of the Offer.
  2. Where the Council confirms in writing that it does not accept the Offer the Owner shall elect to transfer the public open spaces to a management company.
  3. Where the public open spaces is transferred to a management company under paragraph 14 above the management company shall be expected to meet the requirements set out at Appendix 1 of the Councils Open Space Supplementary Planning Document (or revised or

successor document) and the Councils written approval shall be required before the transfer shall take place

  1. On completion of the transfer of the public open spaces Land to the Council the Owners shall pay to the Council the public open spaces Commuted Maintenance Sum

Formulae For Calculation Of Open Space Maintenance Sum

  1. The Open Space Maintenance Sum shall be calculated in accordance with the following formula:

- ((Rate x area in square metres*) + 28% markup) x 20 years

* or equivalent unit of measure here:-

15.1 The Rate is based on the schedule of rates from the Council's Grounds Maintenance Contract current at the date of transfer,

15.2 28% mark up calculated on (rate x area in square metres) being the cost to the Council of the management of the Grounds Maintenance Contract


[ ] SCHEDULE

Transfer Of The Open Space .

The Owner shall transfer ownership of the public open spaces (excluding highway related land or engineering / land drainage functions of SUDS/ balancing ponds) to the Council in accordance with the requirements set out below:

The public open spaces is transferred with vacant possession free from any encumbrances on completion.

The Owner shall transfer with Full Title Guarantee.

The Owner shall ensure that the Council has the right to access the public open spaces from the public highway to enable the land to be maintained

The National Conditions of Sale (20th Edition) shall be deemed to be incorporated so far as they are not inconsistent with the provisions of these conditions.

Title should be deduced in accordance with the Land Registration Act 2002. The purchase price is nil consideration.

In the transfer of the Open Space Land to the Council the Council will covenant with the transferor for themselves and their successors in title that the same will run with and bind the land into whosoever hands the same may pass:

Not to develop the Open Space Land or any part thereof for any purpose whosoever save for the erection of non commercial buildings ancillary to its recreational purposes to the intent that it shall remain in perpetuity as public open space for the enjoyment of the general public

To maintain the Open Space Land in reasonable condition to a reasonable standard and conforming to good horticultural practice.

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