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(6) Appendix 3 - Template of Draft Section 106 Requirements


Planning Obligation by Deed of Agreement under Section 106 of the Town and Country Planning Act1990

Relating to the development of land at Planning Reference No. W

Dated: 2019

(1) WARWICK DISTRICT COUNCIL

(2) WARWICKSHIRE COUNTY COUNCIL (3)

(4)


Warwick District Council
Riverside House
Milverton Hill
Leamington Spa

CV32 5HZ

DX 29123 Leamington Spa 1

Tel: 01926450000

Fax: 01926 456611


XXXX


DATE 2019

Parties

(1) Warwick District Council of Riverside House Milverton Hill Leamington Spa CV32 5HZ ("the Council")

(2) Warwickshire County Council of Shire hall, Warwick CV34 4RR ("the County Council")

(3) ("the Owner")

(4) ("the Mortgagee")

Introduction

1 The Council is the local planning authority for the purposes of the Act for the area in which the Site is situated.

2 The County Council is the Education Authority and Highway Authority for the area in which the Site is situated.

3 The Owner is the freehold owner of the Site which is registered at HM Land Registry under Title Number WK.

4 The Mortgagee is proprietor of a legal charge registered at HM Land Registry against Title Number WK

5 The Owner has submitted the Application to the Council and the parties have agreed to enter into this Deed in order to secure the planning obligations contained in this Deed.

6 The Council resolved on to grant the Planning Permission under planning reference number W subject to the prior completion of this Deed.


Now this Deed Witnesses as Follows:

Operative Part


1 Definitions

For the purposes of this Deed the following expressions shall have the following meanings:

"Act" means the Town and Country Planning Act 1990 as amended "Affordable Housing" means affordable housing as defined in the National Planning Policy Framework

"Affordable Housing Scheme" means a scheme providing for the types, size and tenure of the

Affordable Housing Units and the percentage rent (relative to local market rents) to be paid for the Affordable Rented Units.

"Affordable Housing Units" means 40% (rounded up to the nearest whole number) of the

total number of Dwellings to be constructed on the Application Site which will be provided for the purposes of Affordable Housing and shall be comprised of

"Affordable Rented Units" means Affordable Housing to be constructed pursuant to the

Affordable Housing Scheme and in accordance with Part 1 of the Third Schedule and shall be let at a rent of no more than the mid-point between target Social Rent and 80% of market rent (inclusive of service charges where applicable) or such other rent level as shall be permitted to be charged by

a Registered Provider or as a Registered Provider shall otherwise be permitted to charge as a matter of law.

"Air Quality Type 3 the Air means the sum of £ to be applied towards Mitigation Contribution"              Quality Provision and which shall be paid in accordance with the Part [ ] of the Third Schedule

"Air Quality Provision" means the provision of air quality monitoring equipment and/

or provision of other assistance or support in respect of projects relating to air quality monitoring and management within the Council's area described as "Type 3" mitigation in the Council's "Air Quality and Planning Supplementary Planning Document (January 2019) at the absolute discretion of the Council. For the avoidance of doubt "Type 3" mitigation shall include a feasibility study evaluating the efficacy of available mitigation measures implemented within the Council's Air Quality Management Areas.

"Allotment Contribution" means the sum of £ towards the development of

allotments in, or if not within 5 years, towards the improvement of allotments in which shall be paid in accordance with Part 2 of the Third Schedule

"Application" means the application for full planning permission dated submitted to the Council for the Development and allocated reference number W

"Application Site" means the land which is the subject of the Application and against which this Deed may be enforced as shown edged red on the Plan.

"Bus Service Contribution" means the sum of £ to be applied towards [the

enhancement of the existing bus service, provision of a new bus stop along and for the maintenance of the bus shelter for a 5 year period and which shall be paid in accordance with Part 2 of the Third Schedule.

"Commencement of Development" means the date on which any material operation (as defined in

Section 56(4) of the Act) forming part of the Development begins to be carried out other than (for the purposes of this Deed and   for no other purpose) operations consisting of site clearance, demolition work, archaeological investigations, investigations for the purpose of assessing ground conditions, remedial work in respect of any contamination or other adverse ground conditions, diversion and laying of services, erection of any temporary

means of enclosure, the temporary display of site notices or advertisements and "Commence" "Commenced" and "Commence Development" shall be construed accordingly.

"Contributions" means the and reference to "Contribution" shall be construed accordingly.

"Cycle Link Contribution" means the sum of £ to be applied towards and which

shall be paid in accordance with Part 2 of the Third Schedule

"Development" means the Development of the Application Site by the

"Dwellings" means the Affordable Housing Units and the Open Market Housing Units and reference to "Dwelling" shall be construed accordingly.

"Education Contribution" means the sum of £ to be applied as follows in accordance

with Part 1 of the Fourth Schedule:

£ towards making necessary adaptations to existing schools to support the attendance at the school identified in a child's EHC Plan (hereinafter known as "the Secondary SEN Contribution"

£ towards the provision of teaching facilities at (hereinafter known as "the Primary Contribution")

£ towards making necessary adaptations to existing schools to support the attendance at the school identified in a child's EHC Plan (hereinafter known as "the Primary SEN Contribution")

"Help To Buy Agent" means agents appointed by Homes England to administer sales

of Shared Ownership housing in the West Midlands.

"Highways Contribution" means the sum of £ to be applied towards and which shall be

paid in accordance with Part 1 of the Fourth Schedule

"Home Choice Allocation Scheme" means the Council's choice-based lettings scheme which

relates specifically to the Affordable Housing Units or where this allocation scheme is superseded the Council's housing allocations scheme in force at the time.

"Homes England" means a body established under Part 1 of the Housing and Regeneration Act 2008 (as amended) as the national housing and regeneration agency for England or any such successor national housing and regeneration agency for England.

"Indoor Sports Facilities Contribution "means the sum of £ to be applied towards and which shall be

paid in accordance with Part 2 of the Third Schedule.

"Interest" interest at 4% per cent above the base lending rate of the HSBC Bank Plc from time to time

"Library Contribution" means the sum of £ to be applied towards improving, enhancing

and extending the facilities or services at. This may include purchase of additional stock, targeted collections, additional seating/study spaces or related facilities, improved family facilities and targeted promotions to inform new residents of services available to them and shall be paid in accordance with Part 1 of the Fourth Schedule.

"Management Company" means a fully constituted company capable of managing and

maintaining the Public Open Space and/or SUDS, a copy of its memorandum and articles of association having been provided to and approved by the Council prior to the transfer of the Public Open Space and/or SUDS.

"Monitoring Fee" means the sum paid to the Council for the purpose of monitoring

and supervising compliance with the obligations contained in this Deed which shall be calculated as follows:

Monitoring Fee = A x B x C x D Where:

A = Number of Obligations to be monitored

B = £39.64 (Calculated by WDC Finance and based on the monitoring Officer's salary and supporting infrastructure requirements)

C = 5 (number of hours of officer time handling each contribution.

Max of 8 site visits per year)

D = number of years for the expected monitoring of the Application Site

"National Planning Policy Framework" means the National Planning Policy Framework dated February

2019 or where the National Planning Policy Framework has been superseded such successor document.

"National Rent Regime" means the regime under which the rents for tenants of Social

Rented Units are set by The Regulator of Social Housing or its equivalent successor body.

"Occupation" and "Occupied" means 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

"Off-Site Play Provision Contribution" means the sum of £ to be applied towards enhancing or

improving play area and which shall be paid in accordance with Part 2 of the Third Schedule.

"Open Market Housing Units" means dwelling houses constructed pursuant to the Planning

Permission which are not Affordable Housing Units.

"Outdoor Sports Facilities means the sum of £ to be applied towards the provision Contribution"              and improvement of              and which shall be paid in accordance

with Part 2 of the Third Schedule.

"NHS Hospital Improvements means the sum of £to be applied towards and shall be paid in Contribution" accordance with Part 2 of the Third Schedule.

"NHS Doctors Surgeries means the sum of £ to be applied towards the improvement Contribution" and/or extension of                            Medical Centre and shall be paid in

accordance with Part 2 of the Third Schedule

"Plan" means the plan attached to this Deed

"Planning Permission" means the full planning permission subject to conditions to be granted

by the Council pursuant to the Application as set out in the Second Schedule.

"Planning Obligations" means those obligations contained in the Third Schedule and the

Fourth Schedule to this Deed and reference to "Planning Obligation" shall be construed accordingly.

"Police Infrastructure Police Infrastructure Contribution means the sum of £ to be Contribution"              applied towards the provision of equipment, vehicles and premises for

the Safer Neighbourhood Team and which shall be paid in accordance with Part 2 of the Third Schedule

"Protected Tenant" means any tenant or leaseholder who:

(a) has exercised the right to acquire an Affordable Rented Unit or a Social Rented Unit (as the case may be) pursuant to the Housing Act 1996 or any statutory provision for the time being in force; or

(b) has exercised any statutory right to buy an Affordable Rented Unit or a Social Rented Unit; or

(c) purchased 100% of the equitable shares of a Shared Ownership Unit so that the said leaseholder or purchaser owns the Dwelling.

"Registered Provider" means a registered provider of social housing as defined in Part 2 of

the Housing and Regeneration Act 2008 who is registered with the Regulator of Social housing pursuant to Chapter 3 of Part 2 of the said Act and has not been removed from the register pursuant to

Section 118 or Section 119 of that Act and which is party to the District Council's Joint Commissioning Partnership or if not a party to the District Council's Joint Commissioning Partnership or if not a registered provider of social housing as defined in Part 2 of the Housing and Regeneration Act 2008 as otherwise agreed in writing by the Council (acting reasonably).

"Regulator of Social Housing" means a body established under section 80A of the Housing and

Regeneration Act 2008 (as amended) as the body responsible for the regulation of social housing providers in England and shall include any predecessor (where the context so allows) or successor regulatory body for social housing providers.

"Relevant Index" means the appropriate index utilised and calculated in accordance

with the [ ] Schedule.

"Rights of Way Contribution" means the sum of £ towards improvements to public rights

of way within a 1.5-mile radius of the site which for the avoidance of doubt are footpaths numbers                            and which shall be paid in accordance with Part 1 of the              Fourth Schedule

"Section 73 Consent" means a planning permission granted pursuant to Section 73of

the 1990 Act which varies and/or removes any condition to which the Planning Permission and/or to which such planning permission granted pursuant to Section 73 of the 1990 Act was granted subject to.

"Serviced Condition" means access to services including roads sewers gas electricity

water and telecommunications up to the boundary of each Affordable Housing Unit rendering them ready for immediate Occupation.

"Shared Ownership" means Affordable Housing Units where an initial equity share

is sold by the Registered Provider to qualifying persons under the Home Choice Allocation Scheme and via the Help to Buy Agent with a rent charged on the unsold equity. Where Shared Ownership is allowed the initial mortgage cost for each Shared Ownership Unit must be no more than three and a half times the average household income of newly forming households within Warwick District

"Shared Ownership Lease" means a lease including the covenants set out in the Shared

Ownership Lease published by the Regulator Of Social Housing granted to a qualifying person by the Registered Provider on an equity share basis whereby the qualifying person shall pay for the initial percentage in multiples of 25% or such other multiples of percentage of equity share the Registered Provider in conjunction with the Council may require PROVIDED THAT such initial percentage SHALL NOT exceed 75% in the first instance and

the qualifying person being entitled to purchase the remaining percentage of equity share in further tranches to enable 100% ownership.

"Shared Ownership Unit" means such Affordable Housing Units that will be made available

by way of a Shared Ownership Lease with a Registered Provider.

"Social Rented" means Affordable Housing where the rents are subject to the National Rent Regime.

"Affordable Housing SPD" means the Council's Supplementary Planning Document in

respect of Affordable Housing dated January 2008 or where this document is superseded the Supplementary Planning Document in respect of Affordable Housing currently adopted by the Council

"Sustainable Travel Pack means the sum of £75 per Dwelling to be used for the purpose of Contribution" providing information packs to be provided to the initial Owner and/

or occupiers of the Dwellings to promote sustainable travel and road safety in the local area to be applied in accordance with Part 1 of the Fourth Schedule.

"Warwick District" means the geographical area falling under the jurisdiction of the

Council.

"Working Days" means any day upon which the London clearing banks are open for

business.

2 Construction of this Deed

2.1 Where in this Deed reference is made to any clause, paragraph or schedule or recital such reference (unless the context otherwise requires) is a reference to a clause, paragraph or schedule or recital in this Deed.

2.2 Words importing the singular meaning where the context so admits include the plural meaning and vice versa.

2.3 Words of the 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 interchangeable 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 all their obligations 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 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 and County Council the successors to their respective statutory functions save where specifically provided to the contrary by this Deed.

3 Legal Basis

3.1 This Deed is made pursuant to Section 106 of the Act.

3.2 The covenants, restrictions and requirements imposed upon the Owner under this Deed create planning obligations pursuant to Section 106 of the Act and are enforceable by the Council and the County Council in their respective statutory capacities against the Owner, the successors in title of the Owner and any persons claiming through or under the Owner an interest or estate in the land or any part thereof.

3.3 To the extent that any of the obligations contained in this Deed are not planning obligations within the meaning of the Act, they are entered into pursuant to powers contained in Section 111 of the Local Government Act 1972 and Sections 1 to 8 of the Localism Act 2011.

4 Conditionality

This Deed is conditional upon:

(i) the grant of the Planning Permission; and

(ii) the Commencement of Development

SAVE FOR the provisions of Clauses 8.1, 15, 16 and 17 legal costs clause arbitration jurisdiction and delivery clauses which shall come into effect immediately upon completion of this Deed.

5 The Owner's Covenants

5.1 The Owner covenants with the Council to observe and perform the covenants as set out in the Third Schedule.

5.2 The Owner covenants with the County Council to observe and perform the covenants as set out in the Fourth Schedule.

6 The Council's Covenants

6.1 The Council covenants with the Owner to observe and perform the covenants as set out in Part 1 of the Fifth Schedule; and

6.2 The County Council covenants with the Owner to observe and perform the covenants as set out in Part 2 of the Fifth Schedule.

7 Confirmation of Interest

The Owner hereby warrants and confirms that apart from the parties hereto there are no other persons with a legal and equitable interest in the Site or any part thereof.

8 Miscellaneous

8.1 The Owner shall pay to the Council and County Council on completion of this Deed the reasonable legal costs of the Council and County Council incurred in the negotiation, preparation and execution of this Deed.

8.2 The Owner shall notify the Council's Head of Development Services and the Housing Strategy Manager in writing of the Commencement of Development.

8.3 It is hereby agreed and declared that unless specifically agreed no provisions of this Deed shall be enforceable under the Contracts (Rights of Third Parties) Act 1999

8.4 This Deed shall be registrable as a local land charge by the Council.

8.5 Where the agreement, approval, consent or expression of satisfaction is required by the Owner from the Council and/or the County Council under the terms of this Deed or the Owner is required to serve notice upon the Council and/or the County Council:

(i) such agreement, approval or consent or expression of satisfaction shall be given in writing and shall not be unreasonably withheld or delayed and any such agreement, consent, approval or expression of satisfaction;

(ii) shall be given on behalf of the Council by the Head of Development Services and on behalf of the County Council by the Strategic Director of Communities or their nominee;

8.6 Following the performance and satisfaction of all the obligations contained in this Deed the Council shall upon written request from the Owner effect the cancellation of all entries made in the Register of Local Land Charges in respect of this Deed.

8.7 Insofar as any clause or clauses of this Deed 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.

8.8 This Deed shall cease to have effect (insofar only as it has not already been complied with) if the Planning Permission shall be quashed, revoked or otherwise withdrawn or expires prior to the Commencement of Development.

8.9 No person shall be liable for any breach of any of the planning obligations or other provisions of this Deed after it shall have parted with its entire interest in the Site but without prejudice to liability for any subsisting breach arising prior to parting with such interest.

8.10 Nothing in this Deed shall prohibit or limit the right to develop any part of the Site in accordance with a planning permission (other than the Planning Permission) granted (whether or not on appeal) after the date of this Deed.

8.11 Nothing contained or implied in this Deed shall prejudice or otherwise affect the rights powers duties and obligations of the Council in the exercise of its functions either as Local Planning Authority or in any other capacity and that all rights powers duties and obligations under any public and private statutes byelaws and regulations may be as fully and effectually exercised as if the Council was not a party to this Deed.

8.12 If there is any conflict between the terms of this Deed and any conditions attached to the Planning Permission the latter shall take precedence.

8.13 If there is any conflict between the terms of this Deed and the terms of any previous agreement the terms of this agreement shall take precedence.

9 Monitoring

9.1 The Owner hereby agrees to notify the Council and the County Council of the Commencement of Development within 21 (twenty-one) days of the occurrence of the same PROVIDED THAT default in giving notice or confirming the date by exchange of correspondence shall not prevent the Commencement of Development or the operation of this Deed.

9.2 The Owner hereby agrees to notify the Council and where appropriate the County Council of the reaching of any of the Occupation or completion thresholds contained in this Deed such notification to be given within 7 (seven) days of the reaching of such threshold PROVIDED THAT

default in giving notice shall not prevent the continuation of the Development or operation of this Deed.

9.3 Immediately upon the Commencement of Development the Owners shall pay to the Council the Monitoring Fee which shall be used by the Council for the purpose of monitoring and supervising compliance with the obligations contained in this Deed.

10 Mortgagee's Consent

The Mortgagee acknowledges and declares that this Deed has been entered into by the Owner with its consent and that the Site shall be bound by the obligations contained in this Deed and that the security of the mortgage over the Site shall take effect subject to this Deed SAVE THAT the Mortgagee shall have no liability under this Deed unless it takes possession of the Site in which case it will be bound by the obligations contained in Seventh Schedule.

11 Notices

11.1 Any notice consent or approval required to be given under this Deed shall be in writing and shall be delivered personally or sent by prepaid first class post or Recorded Delivery post or facsimile transmission.

11.2 The address for service of any such notice consent or approval as aforesaid shall be on the Council, the County Council and the Owner at the addresses aforesaid or such other address for service as shall have been previously notified in writing by the Council, the County Council and the Owner to all the other parties to this Deed save that payments of any monies to the

Council shall be addressed specifically for the attention of the Head of Development Services and detailing the obligations to which the payment relates.

11.3 The address for service of any such notice consent or approval as aforesaid shall be on the County Council addressed to the Strategic Director of Communities, Communities, Barrack Street, Warwick CV34 4SX SAVE THAT payments of monies to the County Council shall be addressed for the attention of the Infrastructure Delivery Manager, Communities, Barrack Street, Warwick CV34 4SX.

11.4 A notice consent or approval under this Deed shall be deemed to have been served as follows:

11.4.1 if personally delivered at the time of delivery

11.4.2 at the expiration of forty-eight hours after the envelope containing the same was delivered into the custody of the postal authority within the United Kingdom

11.4.3 if sent by facsimile transmission at the time of successful transmission

11.5 In proving such service it shall be sufficient to prove that personal delivery was made or that the envelope containing such notice consent or approval was properly addressed and delivered into the custody of the postal authority in a prepaid first class or Recorded Delivery envelope (if appropriate) or that the facsimile was successfully transmitted on a tested line as the case may be.

12 Waiver

No waiver (whether expressed or implied) by the Council of any breach or default in performing or observing any of the covenants 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 for acting upon any subsequent breach or default.

13 Change in Ownership

The Owner agrees with the Council to give the Council immediate written notice of any change in ownership of any of its interests in the Site occurring before all the obligations under this Deed have been discharged such notice to give details of the transferee's full name and registered office (if a company or usual address if not) together with the area of the Site or unit of occupation purchased by reference to a plan.

14 Indexation

Any sum referred to in the Third Schedule shall be increased by an amount equivalent to the increase in the Relevant Index from the date of this Deed (or if later, the date the amount (where not fixed in this Deed) is finally agreed or determined) until the date on which such sum is payable.

15 Interest

If any payment due under the Third Schedule is paid late, Interest will be payable from the date payment is due to the date of payment.

16 VAT

All consideration given in accordance with the terms of this Deed shall be exclusive of any value added tax properly payable.

17 Arbitration

In the event of any dispute or difference arising out of this Deed between the parties (other than a dispute or difference relating to a matter of law or concerning the meaning or construction of this Deed) such dispute or difference shall be referred to a sole arbitrator to be agreed between the parties and being a member of the Royal Institution of Chartered Surveyors or in the absence of agreement on the application of any party by the President of the Royal Institution of Chartered Surveyors and in these respects these presents shall be construed as a submission to arbitration within the meaning of the Arbitration Act 1996 the cost of such referral to be borne equally by the Parties.

18 Jurisdiction

This Deed is governed by and interpreted in accordance with the law of England and Wales.

19 Delivery

The provisions of this Deed (other than this clause which shall be of immediate effect) shall be of no effect until this Deed has been dated.

20 Liability of Individual Householders Utility Companies and Registered Providers

20.1 The covenants contained in this Deed shall not be enforceable against individual purchasers or lessees or their respective mortgagees and successors in title of each of the Dwellings on the Application Site constructed pursuant to the Planning Permission or any Protected Tenant nor shall any obligation be enforceable against utility companies in relation to any parts of the Application Site acquired by them for electricity sub-stations gas governor stations or pumping stations or

any of the operational functions of such companies or against anyone whose only interest in the Application Site or any part of it is in the nature of the benefit of an easement or covenant.

20.2 The covenants contained in this Deed shall not be enforceable against any Registered Provider acquiring an interest in the Application Site pursuant to Part 1 of the Third Schedule to this Deed SAVE THAT such Registered Provider shall be bound by the provisions of the said Part 1 of the Third Schedule.

21 Further Section 73 Consent

21.1 If any Section 73 Consent is granted after the date of this deed:

21.2 the obligations in this deed shall relate to and bind such Section 73 Consent; and

21.3 the definitions of Application, Development and Planning Permission (other than for the purpose of clause 1) shall be construed to include reference to (respectively) the planning application for the Section 73 Consent the development permitted by the Section 73 Consent and the Section 73 Consent itself.

Provided that:

21.4 nothing in this clause shall fetter the discretion of the Council or the County Council in determining any planning application for a Section 73 Consent and the appropriate planning obligations required in connection with the determination of the same;

21.5 to the extent that any of the obligations in this deed have already been discharged at the date that a Section 73 Consent is granted they shall remain discharged for the purposes of the Section 73 Consent; and

21.6 the Council and the County Council reserve the right to insist upon the completion of a separate planning obligation by deed of agreement in connection with any Section 73 Consent if they (acting reasonably) consider it desirable to do so.

21.7 In the event of a different s.106 obligation agreed by the Council being binding on any Section 73 Consent, this obligation shall not apply to that Permission if that separate s.106 obligation expressly states that it is in substitution for the obligations in this obligation

22 Execution

This Deed may be executed in any number of counterparts each of which when executed and delivered shall be an original and all the counterparts together shall constitute one and the same instrument.

23 Severability

If any part of this Deed shall be declared unlawful or invalid by a court of competent jurisdiction or a Planning Inspector or the Secretary of State on Appeal finds that one or more of the Planning Obligations are not compliant with the CIL Regulations, then (to the extent possible) the offending

provisions or each one or more of the Planning Obligations as the case may be will be severed from this Deed and the remainder of this Deed shall continue with full force and effect.


FIRST SCHEDULE

[Details of the Owner's Title, and description of theSite]


SECOND SCHEDULE

[Form of notice of planning permission]


THIRD SCHEDULE

The Owner's Covenants with the Council


Part 1: Affordable Housing

1.1. Prior to the Commencement of Development the Owner shall submit the Affordable Housing Scheme for the approval of the Council and shall notify the Council in writing of the anticipated date for completing the construction of the Affordable Housing Units within the Development and shall use reasonable endeavours (and shall demonstrate to the reasonable satisfaction of the Council that such endeavours have been made) to enter into a binding contract ("the Contract") with a Registered Provider for the construction and sale of the Affordable Housing Units within 6 months of the date of Commencement of the Development to such Registered Provider at a price in accordance with paragraph 1.2.

1.2. The price to be paid by the Registered Provider to the Owner for the transfer of the Affordable Housing Units shall be a percentage of the value of the properties if they were sold on the open market (as at the intended date of the exchange of contract in respect of the Affordable Housing Units) to be agreed between the Owner and the Registered Provider being such a percentage to enable the Affordable Housing Units to be made available without the need for the Registered Provider to apply for Homes England grant funding and to enable the Shared Ownership Units to be made available to purchasers at a mortgage cost of each unit to be no more than three and a half times the average household income of newly forming households within Warwick District

1.3. The terms of the Contract relating to the type and size of the Affordable Housing Units and the rent to be paid for the Affordable Rented Units shall be in full accordance with the Affordable Housing Scheme and the Contract shall provide for the transfer of the freehold or leasehold title of the Affordable Housing Units on the following terms:

1.3.1. The Owner will deduce good and marketable freehold or leasehold title to the Affordable Housing Units and will transfer the Affordable Housing Units with full title guarantee with vacant possession and subject to all existing entries under title number [insert title no.] as at the date of this Deed but otherwise the transfer shall be free from any other rights or encumbrances save for any existing rights and encumbrances and such other rights reservations and covenants as are reasonably necessary to enable the Owner to develop the rest of the Application Site and those disclosed as at the date of this Deed;

1.3.2. The Transfer shall grant rights of access and passage of services and other rights reasonably necessary for the beneficial enjoyment of the Affordable Housing Units

1.4. The Owner covenants that the Affordable Housing Units shall be allocated to persons registered on Home Choice Allocation Schemes.

1.5. The Affordable Housing Units shall not be Occupied other than as Affordable Housing SAVE THAT this Deed SHALL NOT be binding or enforceable against any mortgagee or chargee or receiver appointed by the mortgagee or chargee which shall have the benefit of a legal mortgage or charge secured against all or any of the Affordable Housing Units and any person who shall derive title directly or indirectly from such mortgagee or chargee or receiver appointed by the mortgagee or chargee (other than a Registered Provider) Provided Always that the mortgagee or chargee or receiver appointed by the mortgagee or chargee or any successors in title to such mortgagee, chargee or receiver shall have obtained a Certificate from the Council (acting reasonably) stating that it has followed the procedure set out in the Seventh Schedule to this Deed nor shall this Deed be binding or enforceable against any Protected Tenant

1.6. Subject always to paragraphs 1.5, 1.9 – 1.14 below the Owner covenants not to dispose of their interest in the freehold of the Affordable Housing Units or any part thereof (except by way of mortgage) other than to a Registered Provider

1.7. The Owner covenants that it will require in the contract that the Registered Provider shall keep the Council's Housing Strategy & Development Officer for the time being informed in writing as to the addresses of the Affordable Housing Units

1.8. The Owner covenants to require in the Contract that the rent to be charged by the Registered Provider for the Social Rented Units when first let and for all subsequent lets must conform to Regulator of Social Housing's 'Regulatory Framework for Social Housing in England from April 2015' or such other amount as may be permitted by any subsequent publication then in force and the rate of increase shall be no greater than the rate stipulated in Annex A of aforementioned publication or if such rate of increase shall cease to be or otherwise not stipulated by the Regulator of Social Housing the rents shall be increased by no greater than Retail Price Index + 1% per annum.

1.9. If despite having used reasonable endeavours the Owner is unable to enter into a contract with a Registered Provider for the sale of the Affordable Housing Units in accordance with the provisions of this Schedule within 6 months from the Commencement of Development, then the Owner may at any time afterwards give notice to the Council ("the First Affordable Housing Notice") stating that it has failed to enter into a Contract in which event the provisions of paragraph 1.10 shall apply

1.10. If the Owner serves a First Affordable Housing Notice in respect of the Development then the Council may at any time within 3 months of the service of the First Affordable Housing Notice nominate by written notice to the Owner ("the Nomination Notice") any other affordable housing provider ("the Nominee") to purchase the Affordable Housing Units within that Development for an alternative affordable housing scheme proposed by the Owner and as approved by the Council but otherwise on the terms set out in this Schedule.

1.11. If the Council serves a Nomination Notice in respect of the Development in accordance with paragraph 1.10 the Owner shall use reasonable endeavours (and shall demonstrate to the reasonable satisfaction of the Council that such endeavours have been made) to enter into a contract with the Nominee for the sale of the Affordable Housing Units within the Development in accordance with the provisions of this Schedule within 6 months of the date of service of the Nomination Notice.

1.12. If after service of the First Affordable Housing Notice the Council fails to serve a Nomination Notice or following the service of a Nomination Notice within 6 months of the Owner having used their reasonable endeavours fail to enter into a Contract with the Nominee within 6 months of the date of service of the Nomination Notice in accordance with paragraph 1.11 then the Owner shall make an offer in writing to transfer the Affordable Housing Units in a Serviced Condition to the Council, freehold, free from incumbrances, with vacant possession and with full title guarantee for a price of the lower of the actual build costs of the Affordable Housing Units as demonstrated by the Owner on an open-book basis or a valuation-based estimate of the Affordable Housing Units to be carried out by the Valuation Office Agency and the Council shall confirm in writing within 14 days whether it will accept the offer and if accepted then on completion of such transfer the Owner shall be deemed to have provided the full number of Affordable Housing Units in discharge of their obligations under this Schedule.

1.13. If the offer described in paragraph 1.12 above is not accepted by the Council then the Owner may serve a notice on the Council (the "Payment Notice") stating that it will pay to the Council a sum (the "Housing Contribution") which will be calculated by the Council in accordance with the Eighth Schedule in place of the Owner providing the Affordable Housing Units and the provisions of paragraph 1.14 shall take effect.

1.14. On service of the Payment Notice in respect of the Development then:

1.14.1. The Owner shall pay to the Council the Housing Contribution within 20 working days of the Payment Notice being served on the Council;

1.14.2. On payment of the Housing Contribution the Owner shall be entitled to sell or otherwise dispose of the Affordable Housing Units as Open Market Housing Units free of all obligations and restrictions

1.15. The Owner covenants with the Council that the Affordable Housing Units to be built on the Application Site shall be constructed according to the standards required by building regulations in force at the relevant time

1.16. The Owner covenants that the Affordable Housing Units shall be provided for disposal to a Registered Provider in a Serviced Condition and in any event of any disagreement as to whether the Affordable Housing Units are in a Serviced Condition a dispute shall be taken to have arisen which shall be dealt with under the provisions of Clause 17 of this Deed

1.17. Where all or some of the Affordable Housing Units shall be provided for disposal to a Registered Provider or the Council the Owner covenants with the Council not to cause suffer or permit Occupation of more than 50% of the Open Market Housing Units until 50% of the Affordable Housing Units have been transferred in a Serviced Condition to a Registered Provider or the Council in accordance with the provisions of this Schedule.

1.18. If 1.17 applies the Owner covenants with the Council not to cause suffer or permit Occupation of more than 95% of the Open Market Housing Units until all of the Affordable Housing Units have been transferred in a Serviced Condition to a Registered Provider or the Council in accordance with the provisions of this Schedule and any outstanding Housing Contribution (if any) has been paid to the Council in accordance with the provisions of this Schedule.

1.19. The Owner covenants with the Council to notify the Council's Housing Strategy & Development Officer of sales of the Open Market Housing Units in stages of 25% within 14 days of completion of the sale of the last Open Market Housing Unit in each stage of 25%.

Part 2: Financial Contributions
Air Quality Type 3 Mitigation Contribution

1 The Owner covenants with the Council to pay the Air Quality Type 3 Mitigation Contribution to the Council prior to Occupation of 50% of the Dwellings.

Outdoor Sports Facilities Contribution

2. The Owner covenants with the Council to pay the Outdoor Sports Facilities Contribution to the Council in two instalments as set out below.

2.1. 1st Instalment: 50% of the Contribution prior to the Occupation of 50% of the Dwellings

2.2. Final Instalment: 50% of the Contribution prior to the Occupation of 90% of the Dwellings

Indoor Sports Facilities Contribution

3. The Owner covenants with the Council to pay 50% of the Indoor Sports Facilities Contribution to the Council prior to the Occupation of 50% of the Dwellings and the remaining 50% of the Indoor Sports Facilities Contribution to the Council prior to the Occupation of 90% of the Dwellings

NHS Doctors Surgeries Contribution

4. The Owner covenants with the Council to pay 50% of the NHS Doctors Surgeries Contribution to the Council prior to the Occupation of 50% of the Dwellings and the remaining 50% of the NHS Doctors Surgeries Contribution to the Council prior to the Occupation of 90% of the Dwellings

Police Infrastructure Contribution

5. The Owner covenants with the Council to pay 50% of the Police Infrastructure Contribution to the Council prior to the Occupation of 50% of the Dwellings and the remaining 50% of the Police Infrastructure Contribution to the Council prior to the Occupation of 90% of the Dwellings

Nhs Hospital Improvements Contribution

6. The Owner covenants with the Council to pay 50% of the NHS Hospital Improvements Contribution to the Council prior to the Occupation of 50% of the Dwellings and the remaining 50% of the NHS Hospital Improvements Contribution to the Council prior to the Occupation of 90% of the Dwellings

Allotments Contribution

7. The Owner covenants with the Council to pay 50% of the Allotments Contribution to the Council prior to the Occupation of 50% of the Dwellings and the remaining 50% of the Allotments Contribution to the Council prior to the Occupation of 90% of the Dwellings.

Off-Site Play Provision Contribution

8. The Owner covenants with the Council to pay 50% of the Off-Site Play Provision Contribution to the Council prior to the Occupation of 50% of the Dwellings and the remaining 50% of the Off-Site Play Provision Contribution to the Council prior to the Occupation of 90% of the Dwellings.

Part 3: Biodiversity Offsetting Definitions:

"Biodiversity Impact Assessment" means the use of the current and locally adopted Defra

Biodiversity Offsetting metrics to calculate the biodiversity impact of the scheme measured in Biodiversity Units as at the date of this Deed.

"Biodiversity Loss" means a negative Biodiversity Unit score

"Biodiversity Offsetting Scheme" means a scheme which will deliver biodiversity enhancements

which shall not be less than the Biodiversity Impact Assessment score

"Biodiversity Units" means the product of the size of an area, and the distinctiveness

and condition of the habitat it comprises to provide a measure of ecological value

"DEFRA Biodiversity Offsetting Matric" the Defra mechanism to quantify impacts on biodiversity that

allows biodiversity losses and gains affecting different habitats to be compared and ensure offsets were sufficient to compensate for residual losses of biodiversity

"Reserved Matters" in respect of this Part 3 means the details to be approved by the

Council or the Secretary of State in relation to the landscaping of the area in question, the layout of the area in question and its relationship with adjoining development

"WCC Financial Contribution Calculator" means the mechanism used to calculate the fixed sum

contribution being in accordance with the methodology set out in Appendix 1 attached to this Deed

The Owner covenants with the Council as follows:

1.1 The approved Reserved Matters shall not result in a Biodiversity Impact Assessment score for the Development as a whole greater than              Biodiversity Units or such other number as may be proposed by the Owner and agreed by the Council.

1.2 Where there is a Biodiversity Loss, Commencement of Development (here including site clearance, demolition work, remedial work in respect of any contamination or other adverse ground conditions, the erection of a site office and the creation of a site compound) shall not take place until a Biodiversity Offsetting Scheme has been submitted to and approved in writing by the Council ("the Approved Scheme"). The Approved Scheme shall be approved with the purpose

of ensuring that the Development shall not result in a Biodiversity Loss in accordance with the National Planning Policy Framework; unless otherwise agreed with the Council

1.3 The Approved Scheme shall either

1.3.1 include: -

1.3.1.1 the identity of an appropriate receptor site or sites;

1.3.1.2 a management plan for the provision and maintenance of such offsetting measures for not less than thirty (30) years from the date of implementation of the Approved Scheme;

1.3.1.3 the provision of contractual terms to secure the delivery of the offsetting measures; or

1.3.2 provide for a fixed sum contribution to be paid to Warwickshire County Council within three (3) months from the date of the approval of the Reserved Matters or prior to the Commencement of Development (whichever is the later) such sum to be calculated using the WCC Financial Contribution Calculator ("the Bio- Diversity Contribution"). The Bio-Diversity Contribution for the Development as a whole shall not exceed three hundred and twenty four thousand one hundred and sixteen pounds (£) and the County Council shall use the contribution to enhance and secure long term management of biodiversity within the vicinity of the Application Site; or

1.3.3 provide for a Bio-Diversity Contribution in conjunction with the proposals pursuant to paragraph 1.3.1 above of this Part 3

1.4 If paragraph 1.3.1 above applies the Owner covenants to implement the Approved Scheme and not to carry out any changes to the Approved Scheme without the written consent of the Council.

Part 4: Employment

1. The Owner covenants with the Council that:

1.1 at least twenty (20) Working Days before Commencement of Development it shall submit a local employment and training strategy in relation to the construction phase of the Development to the Council for its approval (such approval not to be unreasonably withheld or delayed); and

1.2 it shall implement the local employment and training strategy for the construction phase of the Development by the date set out in the approval of the Council

2 The Council covenants with the Owner that within twenty (20) Working Days of the submission by the Owner of the local employment and training strategy for the construction and operational phases of the Development, the Council shall either approve the local employment and training strategies or suggest reasonable amendments therein in writing SAVE that if at the end of the twenty eight (28) day period the Council has not approved the local employment and training strategies or provided comments in writing suggesting appropriate amendments to the local employment training strategy such failure to comment in writing shall be taken as approval of the terms of the obligations set out in the submitted local employment and training strategies

Part 5: Open Space Definitions:

"Grounds Maintenance Contract" means the Council's contracts with providers of grounds

maintenance including but not exhaustively, the management and maintenance of hard and soft landscaping; and play areas.

"Public Open Space Completion Certificate" means a certificate issued by the Council to the effect that the

Public Open Space has been laid out in accordance with the Public Open Space Scheme to the reasonable satisfaction of the Council and the issue of a Public Open Space Completion Certificate shall commence the Public Open Space Maintenance Period in respect of the whole or the part of the Public Open Space to which the Public Open Space Completion Certificate relates

"Public Open Space Final Certificate "means a certificate issued by the Council which shall be

conclusive evidence that the Public Open Space has been properly maintained during the Public Open Space Maintenance Period to the effect that the Public Open Space is finally complete and any defects which have become manifest since the issue of the Public Open Space 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 Space Completion Certificate and ending with the issue of the Public Open Space 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 the Public Open Space SPD in accordance with the Public Open Space 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 means the sum that shall be paid by the Owner to Commuted Maintenance Sum" the Council prior upon the Public Open Space Transfer for the purposes of future maintenance of the Public Open Space to be calculated in accordance with the formula set out in Part [ ] of the [ ]

Schedule

"Public Open Space off-site contribution" means a sum which shall be calculated in accordance with the Public

Open Space SPD in order to meet any shortfall in Public Open Space provision in accordance with para [ ] of Part [ ] of the [ ] Schedule.

Any Public Open Space Balancing Contribution shall be used for the provision of off-site open space and/or towards the enhancement of existing off site open space provision and shall be paid in accordance with para [ ] 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 Space 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 Space 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

For the avoidance of doubt the Public Open Space Scheme is a separate and an additional requirement to any requirement to submit a landscaping scheme in accordance with a planning condition imposed upon the Planning Permission or as part of any Reserved Matters approval.

"Public Open Space Works" means the works to be carried out in accordance with the approved

Public Open Space Scheme

"Public Open Space SPD" means the Council's Supplementary Planning Document in respect

of Public Open Space dated April 2019 or where this document is superseded the Supplementary Planning Document in respect of Public Open Space currently adopted by the Council

"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 Space including any SUDS, play area equipment and associated equipment on the Public Open Space

"Royal Society Prevention of Accidents for the (RoSPA) Final Inspection 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 Report" the safety of all elements of the Public Open Space including any SUDS play area equipment and associated equipment on the Public Open Space at the end of the Public Open Space Maintenance Period

The Owners hereby covenant and undertake as follows:

Public Open Space Delivery

1. Commencement of Development shall not take place until

:

1.1. the Owners have submitted the Public Open Space 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

1.2. the Council has approved the Public Open Space 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 Space to the reasonable satisfaction of the Council as evidenced by the Public Open Space Completion Certificate.
3. Upon the completion of the Public Open Space 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 Space Works and shall, if satisfied that the works have been carried out in strict accordance with the Public Open Space 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 Space Completion Certificate.
5. In the event that the Council inspects the Public Open Space 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 Space.
6. The procedure set out in paragraphs 3, 4 and 5 shall be repeated in respect of the Public Open Space Works until such time as the Council either;

6.1 issues the Public Open Space Completion Certificate or;

6.2 fails to inspect the Public Open Space 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 Space 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 Space Completion Certificate within 40 Working Days of the inspection where no remedial works have been identified in which case the Public Open Space Completion Certificate shall be deemed to have been issued 40 Working Days following the inspection

Public Open Space Maintenance

7. The Owner shall;

7.1 maintain the Public Open Space in strict accordance with the Public Open Space Scheme until such time as the Public Open Space is transferred to the Council and

7.2. from the date the Public Open Space Certificate of Practical Completion is issued or deemed issued allow free unrestricted use and access of the Public Open Space 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 Space 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.

8. The Owner shall notify the Council in writing at the end of the Public Open Space Maintenance Period and invite the Council in writing to inspect the Public Open Space with a view to issuing the Public Open Space Final Certificate
9. 40 Working Days from receipt of the Notice served pursuant to paragraph 8 above the Council shall inspect the Public Open Space and shall, if satisfied that the Public Open Space has been properly maintained during the Public Open Space 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 Space Final Certificate.
10. In the event that the Council inspects the Public Open Space 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 Space.
11. The procedure set out in paragraphs 8, 9 and 10 shall be repeated in respect of the Public Open Space until such time as the Council either

11.1 issues the Public Open Space Final Certificate; or

11.2 fails to inspect the Public Open Space 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 Space Final Certificate shall be deemed to have been issued 40 Working Days following receipt of the Notice; or

11.3 fails to issue the Public Open Space 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

12. The Owner shall continue to maintain the Public Open Space in accordance with the Public Open Space Scheme and permit unrestricted public access in accordance with paragraph 7 above until its transfer.
13. Prior to commencement of development the Owner shall offer to transfer the Public Open Space Land to the Council on the terms set out in the Ninth 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 Space and the transfer will contain a covenant that the Public Open Space 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.
14. Where the Council confirms in writing that it does not accept the Offer the Owner may elect to transfer the Public Open Space to a Management Company.
15. Where the Public Open Space 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 Public Open Space SPD and the Councils written approval shall be required before the transfer shall take place.
16. On completion of the transfer of the Public Open Space Land to the Council the Owners shall pay to the Council the Public Open Space Commuted Maintenance Sum

Formulae For Calculation Of Open Space Maintenance Sum

17. 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: -

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

17.2 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

Part 6: Suds Definitions

"Foul/Surface Water Drainage means the sewers and drains to be constructed or completed within and Sewerage" the Application Site pursuant to the Planning Permission or such sewers

and drains that may already exist at the time Planning Permission is granted

"SUDS" means visible surface water drainage measures/features which will be located within the Application Site and which shall include the following to serve the Application Site:

(a) swales watercourses and ditches;

(b) attenuation ponds and infiltration basins;

(c) soakaways;

but shall exclude (unless otherwise specified on any application for Reserved Matters) any such measures or features located within the curtilage of any Dwelling constructed on the Application Site

"SUDS Alternative Body" means any statutory water undertaker that is legally permitted to adopt

or otherwise manage and maintain surface water drainage features and measures

"SUDS Commuted Sums" means a commuted sum for maintenance of the SUDS (for 20 years)

determined in accordance with Paragraph 2.1.3 of Part 7 of this Schedule

"SUDS Completion Certificate" means a certificate issued by the Council which shall be conclusive

evidence that the SUDS have been laid out in conformity with this Deed to the reasonable satisfaction of the Council and the issue of a SUDS Completion Certificate shall commence the SUDS Maintenance Period in respect of the whole or part of the SUDS to which the SUDS Completion Certificate relates;

"SUDS Final Certificate" a certificate to be issued by the District Council which shall be

conclusive evidence that the SUDS have been properly maintained during the SUDS Maintenance Period;

"SUDS Land" means the land on which SUDS are to be located whose size and

exact location shall be determined as a result of a Reserved Matters Application and whose exact size shall be approved pursuant to the SUDS Specification

"SUDS Maintenance Period" means:

(a) in the event the SUDS are to be transferred to the Council the period shall be 12 months from the date of the SUDS Completion Certificate or such longer period as a statutory water undertaker that is legally permitted to adopt or otherwise manage and maintain surface water drainage

features may reasonably require whether or not the SUDS are transferred to that statutory undertaker; or

(b) the period shall be 12 months from the date of the SUDS Completion Certificate or such longer period as a statutory water undertaker that is legally permitted to adopt or otherwise manage and maintain surface water drainage features may reasonably require whether or not the SUDS are transferred to that statutory undertaker; or

(c) in the event the SUDS are to be transferred to a statutory water undertaker that is legally permitted to adopt or otherwise manage and maintain surface water drainage features and measures the period shall be up to 24 months from the date of the SUDS Completion Certificate or such shorter period as agreed by that statutory undertaker

"SUDS Specification" means a detailed specification to be prepared by or on behalf of the

Owner by a suitably qualified and professionally approved person carrying appropriate professional indemnity insurance and which detailed specification shall include (where applicable):

(a) Hydraulic calculations;

(b) Details of control devices and flow control measures;

(c) Geotechnical design criteria;

(d) Permeability assessment;

(e) Proposed design specification and landscaping and boundary treatments;

(f) Life-saving equipment (e.g. lifebelts);

(g) Warning and information signage;

(h) Proposals to seek to minimise long term maintenance and a long term maintenance scheme ("the Maintenance Scheme"); and

(i) Proposals to seek to maximise ecological benefit;

(j) The exact location and dimensions of the SUDS;

(k) A construction programme for the SUDS setting timings for commencement through to completion of the SUDS;

(l) Both a ROSPA assessment/certificate and CDM designer's risk assessment evidencing that the SUDS can be operated safely;

(m) Suitable Public Liability Insurance for the above

"SUDS Transfer" means a transfer by the Owner of the unencumbered freehold interest in the SUDS on terms to be agreed but which shall nevertheless:

(a) include terms which would not restrict public access;

(b) include terms which would not directly or indirectly affect the construction servicing or occupation of the part of the Application Site that is retained by the Owner;

(c) include reservation of rights of access over the SUDS;

(d) include the grant of any rights reasonably necessary for the proposed end use of any adjoining land;

(e) include for the benefit of the SUDS the grant of any rights of access over any adjoining land which rights are reasonably required for the management and maintenance of the SUDS for its purpose for public open space, water attenuation and surface water drainage purposes;

(f) be at consideration of £1;

(g) include a covenant that the SUDS shall not be used for any purpose other than for public open space, water attenuation and surface water drainage purposes associated with the Development;

(h) include obligations on the part of the transferee to maintain the SUDS in full accordance with the Maintenance Scheme comprising part of the SUDS Specification; and

(i) include obligations on the part of the Owner to bear the reasonable legal and professional costs of the other parties to the transfer;

Provision of Suds

The Owner and the Council covenant with each other as follows:

1. Prior to Commencement of Development and as part of the Reserved Matters Applications the Owner shall submit to the Council in writing for approval the SUDS Specification
2. Development shall not Commence until the Council has approved the SUDS Specification by way of Reserved Matters Applications.
3. Prior to the Occupation of any Dwelling or use of any buildings (being buildings other than those forming part of a Dwelling) the Owner shall layout install and complete the relevant SUDS:

3.1 to the reasonable satisfaction of the District Council as evidenced by the issuing of a SUDS Completion Certificate; and

3.2 in accordance with the approved SUDS Specification.

4. Following completion of the SUDS:

4.1 the Owner shall serve notice on the Council inviting them to inspect the SUDS and to issue a SUDS Completion Certificate confirming that such works have been completed to the Council's

reasonable satisfaction provided that in order that the notice served by the Owner shall be validly served it shall be accompanied by: _

(i) a RoSPA assessment and certificate evidencing that the SUDS in their completed form can be operated safely; and

(ii) a confirmation from a SUDS expert that the SUDS in their completed form are either: _

(1) built in accordance with the relevant approved SUDS Specification; or

(2) where there is a variation from the relevant approved SUDS Specification, identification of any variation and confirmation that the SUDS in their completed form fulfil the SUDS requirements for the development

4.2 if the Council inspects the SUDS and identifies any defects requiring remedial works, the Council will notify the Owner of the defects within 15 Working Days of such inspection. The Owner shall complete any necessary remedial works to the reasonable satisfaction of the Council;

4.3 upon completion of any remedial works, the Owner shall serve notice on the Council inviting them to inspect the remedial works identified by them pursuant to paragraph 4.2 and to issue a SUDS Completion Certificate confirming that such works have been completed to the Council's reasonable satisfaction

PROVIDED THAT if the Council fails to inspect the SUDS within 30 Working Days of receipt of a notice of invitation from the Owner pursuant to paragraphs 4.1 or 4.3 or fails to issue a SUDS Completion Certificate within 30 Working Days of the inspection where no remedial works have been identified then the SUDS Completion Certificate shall be deemed to have been issued at the end of those specified periods PROVIDED FURTHER THAT the inspection procedure identified in paragraphs . 4.1 and

4.3 shall be repeated until such time as the Council issue or are deemed to have issued a SUDS Completion Certificate in relation to the SUDS AND PROVIDED FURTHER THAT nothing shall prevent the Owner undertaking the SUDS in phases or in individual component parts and seeking SUDS Completion Certificates for each such phase or part of SUDS.

5. On expiration of the SUDS Maintenance Period the Owner shall:

5.1 serve notice on the Council inviting them to inspect the SUDS and issue a SUDS Final Certificate confirming that such works have been maintained to the Council's reasonable satisfaction;

5.2 if the Council inspects the SUDS and identifies all necessary remedial works, the council will notify the Owner of the required remedial works within 15 Working Days of such inspection and the Owner will thereafter complete such remedial works to the reasonable satisfaction of the Council;

5.3 upon completion of all remedial works, serve notice on the Council inviting them to inspect the remedial works identified by them pursuant to paragraph 5.2 and issue a SUDS Final Certificate confirming at such works have been completed to their reasonable satisfaction

PROVIDED THAT if the Council fails to inspect the SUDS within 30 Working Days of receipt of a notice of invitation from the Owner pursuant to paragraphs 5.1 or 5.3 or fails to issue a SUDS Final Certificate within 30 Working Days of the inspection where no remedial works have been identified then the SUDS Final Certificate shall be deemed to have been issued at the end of those specified

periods PROVIDED FURTHER THAT the inspection procedure identified in paragraphs 5.1 or 5.2 shall be repeated until such time as the Council issue or are deemed to have issued a SUDS Final Certificate in relation to the SUDS PROVIDED FURTHER THAT nothing shall prevent the Owner undertaking the SUDS in phases or in individual component parts and seeking SUDS Final Certificates for each such phase or part of the SUDS.

6. The Owner shall:

6.1 maintain the SUDS in accordance with the approved SUDS Specification until such time as the SUDS are transferred to the Council or at the Council's election a SUDS Alternative Body pursuant to the Maintenance Scheme; and

6.2 from the date the SUDS Completion Certificate is issued or of deemed issue of the SUDS Completion Certificate to allow free unrestricted use and access of the SUDS for the general public at all times of the day and night PROVIDED THAT use and access may be restricted in the following circumstances:

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

6.2.2 where any part of the SUDS shall for health and safety purposes be proposed to be permanently fenced off or where other means are used to permanently prevent use and access by the general public this shall be documented and approved in the SUDS Specification.

7. The Owner shall save as otherwise agreed in writing by the Council (acting reasonably):

7.1 not locate any Utilities or Foul/Surface Water Drainage and Sewerage in on or under the SUDS Land other than those public surface water sewers directly associated with and connected to the

SUDS features;

7.2 not locate the SUDS Land within an area of the Application Site that at the time Planning Permission is granted already has Utilities or Foul/Surface Water Drainage and Sewerage located within such area; unless these are to be relocated.

Part 7: Transfer of The Suds Land

The Owner covenants with the Council as follows:

1. No later than 30 Working Days after the issue of a SUDS Completion Certificate to serve written notice on the Council either:

1.1 offering to the Council the SUDS Land to adopt and offering to transfer to the Council the SUDS Land pursuant to the SUDS Transfer;

1.2 at the Council's election offering to transfer to a SUDS Alternative Body the SUDS Land pursuant to the SUDS Transfer.

2. In the event that the Council accepts the offer to adopt and take a transfer of any part of the SUDS Land then the Owner shall:

2.1.1 following the issue or deemed issue of the SUDS Final Certificate in relation to the relevant part of the SUDS, execute and deliver to the Council the SUDS Transfer in respect of such part of the SUDS Land;

2.1.2 the transfer will take place either

(a) as soon as practicably possible after the issue of the relevant SUDS Final Certificate in relation to the SUDS for the whole of the SUDS Land; or

(b) where individual SUDS Final Certificates are issued or deemed to be issued in relation to various parts of the SUDS the transfer of the relevant SUDS on which the said SUDS have received a SUDS Final Certificate will occur as soon as practicably possible after the SUDS Final Certificate has been or is deemed to have been issued in respect of the relevant SUDS

PROVIDED ALWAYS THAT the transfer(s) of the whole of the SUDS Land whether it occurs as a result of one or more transfers shall be completed prior to whichever shall be the first to occur of 75% of the

Dwellings being Occupied within the relevant Area or the bringing into use of the last building (being buildings other than those forming part of a Dwelling) constructed as part of the Development and the Owner shall bear the reasonable legal and professional fees of the parties to the transfer(s) and any SDLT costs of the transfer (s).

2.1.3 on completion of such SUDS Transfer to pay to the Council the relevant proportion of the SUDS Commuted Sum (such proportion being calculated by reference to the area of the land being transferred against the total area of the SUDS Land within the Application Site) and the quantum of such commuted sum shall be agreed between the Owner and the Council prior to the

date of transfer based on the details set out in the approved SUDS Specification and the Council will covenant in the transfer to thereafter maintain the SUDS in accordance with the Maintenance Scheme.

3. Where the Council elects not to accept the offer of the transfer of the SUDS Land to it the Council shall be entitled to notify the Owner in writing of an SUDS Alternative Body to whom the Council elects that the offer to transfer the SUDS Land should be made by the Owner PROVIDED THAT the Council shall notify the Owner in writing of any proposed election of a SUDS Alternative Body at any time before the date 20 Working Days after the receipt of the notice served pursuant to paragraph 1 of this Part 7 AND PROVIDED FURTHER THAT if the Council shall not have elected an SUDS Alternative Body by the expiry of the said 20 Working Days it shall be deemed that the Council does not wish to elect an SUDS Alternative Body and that the Council will accept the transfer to it of the SUDS Land.
4. Where the Council has elected an SUDS Alternative Body and has notified the Owner before the expiry of the 20 Working Days the Owner shall forthwith write to the SUDS Alternative Body offering to transfer the Open Space Land and/or SUDS Land pursuant to the Open Space Land Transfer to the SUDS Alternative Body.
5. In the event that the SUDS Alternative Body accepts the offer to transfer the SUDS Land to it the Owner shall:
5.1.1 following the issue or deemed issue of the SUDS Final Certificate in relation to the relevant part of the SUDS, execute and deliver to the SUDS Alternative Body the SUDS Transfer in respect of such part of the SUDS Land;

5.1.2 the SUDS Transfer will take place either:

(a) as soon as practicably possible after the issue or deemed issue of the relevant SUDS Final Certificate in relation to the SUDS for the whole of the SUDS Land; or

(b) where individual SUDS Final Certificates are issued or deemed to have been issued in relation to various parts of the SUDS the transfer of the relevant SUDS Land on which the said SUDS have

received a SUDS Final Certificate will occur as soon as practicably possible after the SUDS Final Certificate has been issued or deemed to have been issued in respect of the relevant SUDS

PROVIDED ALWAYS THAT the transfer(s) of the whole of the SUDS Land whether it occurs as a result of one or more transfers shall be completed prior to whichever shall be the first to occur of 75% of the Dwellings being Occupied or the bringing into use of the last

building (being buildings other than those forming part of a Dwelling) constructed as part of the Development; and the Owner shall bear the reasonable legal and professional fees of the parties to the transfer(s) and any SDLT costs of the transfer(s)

5.1.3 on completion of such SUDS Transfer to pay to the SUDS Alternative Body the relevant proportion of the SUDS Commuted Sum (such proportion being calculated by reference to the

area of the land being transferred against the total area of the SUDS Land within the Application Site) and the quantum of such commuted sums shall be agreed between the Owner and the Council prior to the date of transfer based on the details set out in the approved SUDS Specification and the SUDS Alternative Body will covenant in the transfer to thereafter maintain the SUDS in accordance with the Maintenance Scheme.

6. No more than 75% (seventy-five percent) of the Dwellings shall be permitted to be Occupied or the last building (being buildings other than those forming part of a Dwelling) constructed as part of the Development shall be permitted to be brought into use (whichever shall be the first to occur) until such time as:

6.1 the whole of the SUDS Land has been offered to be transferred to either the Council or a SUDS Alternative Body; and

6.2 a SUDS Final Certificate has been issued or deemed to have been issued in relation to all parts of the SUDS.

7. Owner's Obligations to Transfer

7.1 The Owner shall only transfer the SUDS Land to either:

(a) the Council, or

(b) a SUDS Alternative Body nominated by the Council.

FOR THE AVOIDANCE OF DOUBT neither the Council nor the SUDS Alternative Body is obliged in any event to take a transfer of the SUDS Land in the event the SUDS have not been constructed in accordance with the approved SUDS Specification or a SUDS Final Certificate has not been issued but at all times the Council or the SUDS Alternative Body must act reasonably and in good faith and the Council must not unreasonably resist the transfer of the SUDS Land to it.

8. Any dispute under Parts 6 or 7 of this Third Schedule shall be referred to arbitration in accordance with Clause 17 of this Deed.
9. Where neither the Council nor any SUDS Alternative Body nominated by the Council are willing to take a transfer of the SUDS Land the Owner may upon Occupation of 75% (seventy-five percent) of the Dwellings transfer the SUDS to a Management Company.
10. The Owner covenants to transfer the SUDS to a Management Company on the basis that one of its primary objectives is to maintain and manage the SUDS to the reasonable satisfaction of the Council

Fourth Schedule

The Owner's Covenants with The County Council
Part 1
Financial Contributions
The Owner Covenants with The County Council as Follows:
Education Contribution

1. To pay 10% of the Education Contribution to the County Council upon Commencement of Development, to pay 50% of the Education Contribution prior to occupation of 30% of the Dwellings and to pay the remaining 40% of the Education Contribution to the County Council prior to the Occupation of 60% of the Dwellings

Libraries Contribution

2. To pay the Libraries Contribution to the County Council prior to Occupation of 50% of the Dwellings

Sustainability Travel Pack

3. Prior to or on the Commencement of Development to pay the Sustainability Travel Pack Contribution to the County Council

Bus Service Contribution

4. To pay the Bus Stop Contribution to the County Council prior to Occupation of 50% of the Dwellings

Cycle Link Contribution

5. To pay the Cycle Link Contribution to the County Council prior to Occupation of the Dwellings.

Highways Contribution

6. To pay the Highways Contribution to the County Council prior to Occupation of the Dwellings.

Rights of Way Contribution

7. To pay the Rights of Way Contribution to the County Council prior to Occupation of the Dwellings

FIFTH SCHEDULE

THE COUNCILS AND COUNTY COUNCILS

COVENANTS PART 1
Council's Covenants
Repayment of contributions

1 The Council hereby covenants with the Owner to use all sums received from the Owner under the terms of this Deed for the purposes specified in this Deed for which they are to be paid or for such other purposes for the benefit of the Development as the Owner and the Council shall reasonably agree PROVIDED THAT such purposes comply with Regulation 122 of the Community Infrastructure Levy Regulations 2010.

2 The Council covenants with the Owner that it will pay to the Owner such amount of any payment made by the Owner to the Council under this Deed which has not been expended or committed in accordance with the provisions of this Deed within ten years of the date of receipt by the Council of such payment.

3 The Council shall provide to the Owner such evidence, as the Owner shall reasonably require in order to confirm the expenditure of the sums paid by the Owner under this Deed PROVIDED THAT such request shall be made in writing to the Council's Head of Development Services where the sum relates to open space provision or the Housing Strategy Manager where the sum relates to affordable housing.

Discharge of obligations

4 At the written request of the Owner the Council shall provide written confirmation of the discharge of the obligations contained in this Deed when satisfied that such obligations have been performed.

Part 2

County Council's Covenants Repayment of contributions

1 The County Council hereby covenants with the Owner to use all sums received from the Owner under the terms of this Deed for the purposes specified in this Deed for which they are to be paid or for such other purposes for the benefit of the Development as the Owner and the County Council

shall reasonably agree PROVIDED THAT such purposes comply with Regulation 122 of the Community Infrastructure Levy Regulations 2010.

2 The County Council covenants with the Owner that it will pay to the Owner such amount of any payment made by the Owner to the County Council under this Deed which has not been expended or committed in accordance with the provisions of this Deed within ten years of the date of receipt by the County Council of such payment.

3 The County Council shall provide to the Owner such evidence, as the Owner shall reasonably require in order to confirm the expenditure of the sums paid by the Owner under this Deed PROVIDED THAT such request shall be made in writing to the County Council's Infrastructure Delivery Manager.

Discharge of obligations

4 At the written request of the Owner the County Council shall provide written confirmation of the discharge of the obligations contained in this Deed when satisfied that such obligations have been performed.

Sixth Schedule Indexation

1 In this Schedule:

1.1 "Relevant Index" means:

1.1.1 In respect of the, the All Terms Retail Prices Index published by the Office of National Statistics contained in the Monthly Digest of Statistics (or contained in any official publication substitution therefor) or such other index as may from time to time be published in substitution therefor or if for any reason the index shall be abolished there shall be substituted for the purposes of this Schedule such index of food price costs (including the altered All Items Retail Prices Index) as may from time to time be published by or under the authority of any Ministry or Department of her Majesty's Government and if no such index is published the parties thereto shall endeavour to agree such other index as shall most closely reflect changes in the costs of living; and

1.1.2 In the case of the, the All in Tender Price Index of Buildings Cost Information Services ("BCIS") as published by the Royal Institute of Chartered Surveyors ("RICS") or in the event that the RICS shall change the basis of compilation or cease to compile or publish the said Index such other Index as the parties hereto shall agree or in default of agreement such index as shall be determined

by the Arbitrator appointed by the President of the RICS of the purposes of this Deed in all cases to ensure as nearly as possible that the sum of money involved shall fluctuate in accordance with the general level of the building industry costs.

1.1.3 In the case of the, the Baxter Index which is the Department of Transport Local Government and the Regions Monthly Bulletin of Indices-Civil Engineering Formula 1990 Series to be weighed in the proportions Labour and Supervision 25% Plant and Road Vehicles 25% Aggregate 30% and Coated Macadam and Bitumen Products 20%

1.2 "Base Index Date" means the date of the grant of Planning Permission or such other date in respect of a particular sum as may be specified in this Deed with particular reference to Clause 13 hereof in respect of sums not fixed in this Deed but remaining to be agreed or determined at a later date.

1.3 "Base Index Figure" means the figure published in respect of the Relevant Index immediately prior to the Base Index Date

1.4 "Final Index Date" means the figure published or otherwise agreed or determined in respect of the Relevant Index immediately prior to the respective dates upon which the Contributions are paid.

2 The Contributions shall be increased to such sum if any in pounds sterling as shall be equal to the sum calculated according to the following formula:

Increased Sum = A x C / B

Where "A" equals the Contribution
"B" equals the Base Index Figure
"C" equals the Final Index Figure

3 If after the Base Index Date there should be any change in the Base Index Figure by reference to which changes in the Relevant Index are calculated, the figure taken to be shown in the Relevant Index after such change shall be the figure which would have been shown in the Relevant Index if the said Base Index Figure had been retained and the appropriate reconciliation shall be made.

4 If any substitution for the said All Items Retail Prices Index or the BCIS Index or Baxter Index or any index previously substituted therefor shall occur the parties hereto shall endeavour to agree the appropriate reconciliation between the Relevant Index substituted on the one hand and the All Items Retail Prices Index or the BCIS Index or Baxter Index or any index previously substituted therefor on the other hand.

Seventh Schedule

Mortgagee in Possession

1. The covenants contained in this Deed shall not be binding on a mortgagee or chargee or receiver appointed by the mortgagee or chargee (or administrative receiver) which shall have the benefit of a legal mortgage or charge secured against any of the Affordable Housing Units ("the Mortgaged Properties") or any person who shall derive title directly or indirectly from such mortgagee or chargee or receiver (or administrative receiver) appointed by the mortgagee or chargee ("the Mortgagee") (except in the case of a purchaser which is a Registered Provider of Social Housing) PROVIDED THAT the following procedure shall have been followed in all respects:

1.1 The Mortgagee acting pursuant to an event of default shall:

1.1.1 first serve written notice on the Council's Head of Housing Services of its intention to seek possession of the Mortgaged Properties no less than seven days prior to the commencement of such action.

1.1.2 at the time it commences such action send copies of any notices or other documents served in relation to such action to the Council's Head of Housing Services.

1.1.3 use its reasonable endeavours to the reasonable satisfaction of the Council's Head of Housing Services over a period of 12 weeks from the date on which it serves notice pursuant to paragraph 1.1.1. to dispose of the Mortgaged Properties to a Registered Provider of Social Housing approved in writing by

the Council (such approval not to be unreasonably with-held or delayed) on terms which are reasonable in all respects to enable the same to be used for the purposes specified in this Deed and for a consideration determined in accordance with paragraph 7 below.

2 If the Mortgagee is unable within the said period of 12 weeks to dispose of the Mortgaged Properties in accordance with paragraph 1.1.3 and the Council shall have certified in writing that it is satisfied that the Mortgagee has complied with paragraph 1.1.3 (or the Mortgagee has issued a Deemed Certificate) then the Mortgagee shall be entitled to sell or otherwise dispose of the

Affordable Housing Units as Open Market Dwellings free from all obligations or restrictions insofar as they relate to the use and occupation of the Affordable Housing

3 The Mortgagee shall provide written progress reports to the Council showing the steps it has taken to comply with Paragraph 1.1.3 above at 4, 8, 10 and 12 weeks from the date on which it served notice pursuant to paragraph 1.1.1. Such reports shall include: -

3.1. The names addresses and contact details of the registered providers of social housing which it has approached with a view to disposing of the Mortgaged Properties.

3.2 Any valuation of the Mortgaged Properties carried out at that time on the behalf of the Mortgagee.

3.3. Details of any part played by the Regulator of Social Housing and the details of the contact at the Regulator of Social Housing

3.4 Any written offers made by a registered provider of social housing to purchase the Mortgaged Properties.

3.5 The acceptance by the Mortgagee of an offer made in accordance with sub paragraph 3.4 above.

3.6 Written consent authorising any registered provider of social housing which the Mortgagee has approached with a view to disposing of the Mortgaged Properties and the Regulator of Social Housing to disclose the details of any confidential negotiations relating to such disposal to the Council.

3.7 Any other information relating to the disposal of the Mortgaged Properties that the Mortgagee considers appropriate

4 The Council shall within 14 days of the expiry of the 12-week period provided for in paragraph 2 above deliver to the Mortgagee a certificate stating whether or not the Mortgagee has complied with the provisions of paragraph 1.1.3. In the event that the Council certifies that the Mortgagee has not complied with the provisions of paragraph 1.1.3 such certificate will state what steps the Mortgagee must take to secure such compliance. If the Council has not delivered the above certificate to the Mortgagee within the above period of 14 days (or the arbitrator referred to in paragraph 6 below confirms that the Mortgagee has complied with the provisions of paragraph 1.1.3) the Mortgagee shall be entitled to certify that it has complied with paragraph 1.1.3 ("The Deemed Certificate ") and such certificate shall operate as a deemed certificate of satisfaction for the purposes of paragraph 2

5 Paragraph 4 above shall not prevent the Council from delivering to the Mortgagee a certificate stating whether or not the Mortgagee has complied with the provisions of paragraph 1.1.3 at any time following 4 weeks from the date that the Mortgagee served the notice pursuant to paragraph 1.1.1.

6 In the event that the Council has delivered a certificate in accordance with paragraph 4 above and there is a dispute between the parties in relation to whether the Mortgagee has complied with the provisions of paragraph 1.1.3 then either party may elect to refer such dispute to be determined by arbitration by a person appointed by the President for the time being of the Law Society

7 The consideration in accordance with paragraph 1.1.3 above shall be determined subject to any leases or tenancies subsisting the amount of such consideration to be agreed between the Registered Provider of Social Housing and the Mortgagee and failing such agreement to be determined by a Member of the Royal Institution of Chartered Surveyors acting as an expert and not as an arbitrator to be appointed by joint agreement of the parties or in default of agreement on application by either party by the President for the time being of the Royal Institution of Chartered Surveyors (the cost of his appointment and acting to be met by the parties in equal shares) and for the avoidance of doubt such consideration shall not be less than the amount due and outstanding to the Mortgagee under the terms of the mortgage or charge including all principal monies interest and costs and expenses incurred by the Mortgagee in respect of the mortgage or charge

8. Provided that at all times the rights and obligations in this Seventh Schedule shall not require the Mortgagee to act contrary to its duties under the charge or mortgage

Eighth Schedule

The Housing Contribution

1. The Housing Contribution shall be a sum equivalent to the lower of the actual build costs of the Affordable Housing Units as demonstrated by the Owner on an open-book basis or a valuation- based estimate of the build-costs of the Affordable Housing Units to be carried out by the Valuation Office Agency and based upon a number of units calculated in accordance with Paragraph 5.15

of the Affordable Housing SPD and which shall be applied by the Council towards the provision of Affordable Housing within Warwick District and Part 1 of the Fifth Schedule shall apply in respect of the repayment of this contribution.

2. Where there is a dispute regarding the amount of the Housing Contribution then such dispute may be referred to arbitration in accordance with Clause 17 of this Deed.

Ninth Schedule
Transfer of The Open Space

1. The Owner shall transfer ownership of the Public Open Space (excluding highway related land or engineering / land drainage functions of SUDS/ balancing ponds) to the Council in accordance with the requirements set out below:
2. The Public Open Space is transferred with vacant possession free from any encumbrances on completion.
3. The Owner shall transfer with Full Title Guarantee.
4. The Owner shall ensure that the Council has the right to access the Public Open Space from the public highway to enable the land to be maintained
5. 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.
6. Title should be deduced in accordance with the Land Registration Act 2002. The purchase price is nil consideration.
7. 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:
8. 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
9. To maintain the Open Space Land in reasonable condition to a reasonable standard and conforming to good horticultural practice.

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

THE COMMON SEAL OF WARWICK DISTRICT COUNCIL )

was affixed in the presence of: )

Authorised Signatory:

THE COMMON SEAL OF WARWICKSHIRE COUNTY COUNCIL )

was affixed in the presence of: )

Authorised Signatory:

EXECUTED AS A DEED by )

)

in the presence of: )

Director:

Director/Secretary:

EXECUTED AS A DEED )

)

In the presence of: - )

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