!\Ji g E and. and HERTFORDSHIRE COUNTY COUNCIL

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1 DATED 3!\Ji g E HIGHTOWN HOUSING ASSOCIATION LIMITED and DACORUM BOROUGH COUNCIL and HERTFORDSHIRE COUNTY COUNCIL DEED PURSUANT TO SECTION 106 OF THE TOWN AND COUNTRY PLANNING ACT 1990 relating to Viking House and Saxon House, Swallowdale Lane, Hemel Hempstead, HP2 7EA Mark Brookes Solicitor to the Council Dacorum Borough Council Civic Centre, Marlowes, Hemel Hempstead, Hertfordshire, HPI I HH 1

2 THIS DEED is dated and made by (1) DACORUM BOROUGH COUNCIL of Civic Centre Marlowes Hemel Hempstead Hertfordshire HPI I HH (hereinafter called the Council ); (2) HERTFORDSHIRE COUNTY COUNCIL of County Hall Pegs Lane Hertford Hertfordshire, SGI3 8DE ( the County Council ); (3) HIGHTOWN HOUSING ASSOCIATION LIMITED of Hightown House Maylands Avenue Hemel Hempstead Industrial Estate Hemel Hempstead HP2 4XH (a society registered under the Co-Operative and Community Benefit Societies Act 2014 with registration no R) ( the Owner ) RECITALS: (A) The Council and the County Council are the local planning authorities for the purposes of this Deed and for the purposes of the Act for the area within which the Property is situated and consider it expedient in the interests of the proper planning of the area that the Development should be restricted or regulated in accordance with this Deed (B) The Owner is registered under its former name Hightown Praetorian and Churches Housing Association Limited as the registered proprietor of the freehold of the Property identified edged red on the Plan annexed hereto excluding the land hatched black and is registered at the Land Registry with Title Absolute under title number HD (C) On 18 June 2015 Hightown Praetorian and Churches Housing Association Limited amended its name under the Co-operative and Community Benefit Societies Act 2014 to Hightown Housing Association Limited (D) The Owner applied to the Council by the Planning Application for Planning Permission to carry out the Development (E) This Deed is entered into to make provision for regulating the Development and securing the matters hereinafter referred to which are required to enable the Development to go ahead NOW THIS DEED WITNESSETH as follows: DEFINITIONS For the purposes of this Deed the following expressions shall have the following meanings: Act Affordable Housing means the Town and Country Planning Act 1990 as amended or replaced; means housing of a type which having regard to its rent or other consideration is suitable for occupation by people who are in Housing Need; Affordable Housing Units means thirty (30) of the Residential Units to be constructed on the Property pursuant to the Planning Permission and made available for Affordable Housing as Affordable Rental Dwellings or such other split of Units and tenure as may be agreed in writing with the Housing Manager; 2

3 Affordable Rent Affordable Rental Dwelling means a rent being no more than eighty percent (80%) of the gross market rent inclusive of service charges (where applicable) as described by the Homes and Communities Agency in paragraph 3.3 of its Affordable Homes Programme Framework; means an Affordable Housing Unit which is let at an Affordable Rent on the Registered Provider s standard form of letting in accordance with the terms of this Agreement by a Registered Provider; Assistant Director means the Assistant Director of Planning Development and Regeneration of the Council for the time being or such other person as may be nominated by the Assistant Director from time to time; Bus Stop Improvements Contribution Chargee means the sum of sixteen thousand pounds (16,000) (index linked as hereinafter provided); means any mortgagee or chargee of the Owner or Registered Provider or any receiver or manager (including an administrative receiver) or any other person appointed under any security documentation to enable such mortgagee or chargee to realise its security or any administrator (howsoever appointed) including a housing administrator; Chargee s Duty means the tasks and duties set out in clause hereof; Commencement of Development Development Director of Environment Dispute Parties Fire and Rescue Service 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 Development shall be construed accordingly; means demolition of office building and construction of eighty seven (87) dwellings as set out in the Planning Application; means the County Council s Chief Executive and Director of Environment for the time being and his agents and officers; means the Council and the Owner and Dispute Party shall be construed accordingly means that part of the County Council known as the Hertfordshire Fire and Rescue Service uhomes and Communities Agency means the national government agency that regulates affordable housing and any successor body; Housing Manager means the Council s Group Manager (Strategic Housing) for the time being or such other person as 3

4 Housing Need may be nominated by the post holder from time to time; means a person has a housing need if in the opinion of the Housing Manager he meets the criteria in the Council s policies relating to housing allocation (as amended from time to time) as formulated pursuant to the provisions of Housing Act 1985 and Housing Act 1996 or any successor acts; Maylands Business Park means the sum of thirty thousand pounds (30,000) Improvements Contribution (index linked as hereinafter provided); Nickey Line Cycle Way Improvements Contribution Nickey Line Extension Works Nickey Line Extension Plan means the sum of five thousand pounds (5,000) (index linked as hereinafter provided); means the provision of a new pedestrian and cycle path as shown on an indicative-only basis on plan (AA5I Rev 0) from the Nickey Line to the south access on the Eastern side of Redbourn Road fronting the Development; means a plan prepared in accordance with Schedule 2 Occupation Occupy and Occupied means occupation of any part of the Development 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 Planting Scheme means a scheme prepared in accordance with Schedule I to ensure the adequate setting out maintenance and management of the landscaping to be provided as part of the Development as shown indicatively on the approved site plan (AA Rev H) and landscape plan ( H) on the common land to Redbourne Road fronting the Development; Plan Plan 1 means the map annexed hereto; means the plan identifying the common land for the purpose of the Off-Site Planting Scheme; Planning Application means the application for full Planning Permission dated 23/07/2015 submitted to the Council for the Development and allocated reference number 4/02772/1 5/MFA; Planning Permission means such planning permission as is granted by the Council pursuant to the Planning Application; Practical Completion means the issue of a certificate of practical completion by the Owner s architect or agent or in the event that the Affordable Housing Units are constructed by a party other than the Owner the issue of a certificate of practical completion by that other party s architect or agent Property means the land against which this Deed may be enforced shown for the purposes of identification only edged red on the Plan and briefly known as 4

5 Viking House and Saxon House, Swallowdale Lane, Hemel Hempstead, HP2 7EA; Protected Tenant means any tenant who: (a) has exercised the right to acquire pursuant to the Housing Act 1996 or any statutory provision for the time being in force (or any equivalent contractual right) in respect of an Affordable Housing Unit (b) has exercised any statutory right to buy (or any equivalent contractual right) in respect of an Affordable Housing Unit Registered Provider means a registered provider of social housing registered with the Homes and Communities Agency (or any successor authority) pursuant to the Housing and Regeneration Act 2008 or, if there is any statutory modification or change to such legislation, any landlord providing social housing whose status and functions are similar to such a registered provider; Residential Unit means any single unit of residential accommodation comprised in the Development; Section 38 Consent means consent from the Planning lnspectorate pursuant to (inter alia) Section 38 of the Commons Act 2006 to carry out the Nickey Line Extension Works on common land; Section 278 Agreement Travel Plan means an agreement pursuant to section 278 of the Highways Act 1980 in relation to the Nickey Line Extension Works; means a written plan (submitted to and approved in writing by the County Council pursuant to clause 5.8 of this Deed) setting out a scheme to encourage regulate and promote sustainable travel measures for owners occupiers and visitors to the Development and which such plan may from time to time be varied with the written consent of the County Council or by the approval of the County Council of any recommendations for amendments or improvements made by the Owner pursuant to clause 5.8.5(d) and approved in writing by the County Council or any amendments or improvements to the Travel Plan notified by the County Council to the Owner pursuant to clause 5.8.5(e) Travel Plan Guidance means the County Council s published guidance entitled Travel Plan Guidance for Business and Residential Development or such version as at the date of submission of the Travel Plan; Travel Plan Annual Review means an annual study reviewing and monitoring the provisions of the Travel Plan (as more fully set out therein) such annual study to be carried out from the date six (6) calendar months following the first Occupation and then to be carried out annually in the corresponding calendar month for a period of 5 years; Travel Plan Champion means the person appointed by the Owner and approved by the County Council who shall be responsible for managing on behalf of the Owner the 5

6 Travel Plan Evaluation and Support Contribution Water Scheme Working Day implementation monitoring progression reporting and review of the Travel Plan in order to achieve its objectives and targets; means the sum of six thousand pounds (6,OOO) (index linked as hereinafter provided); means either the proposal prepared by or approved by the water undertaker for the area pursuant to the Water Industry Act 1991 to provide mains water services for the Development whether by means of new mains or extension to or diversion of existing services or apparatus or where existing water services are to be used Water Scheme shall mean the details of the Development and the water supply to it; means any day other than a Saturday or a Sunday or bank holiday or a public holiday. 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 severally unless there is an express provision otherwise. 2.5 Any reference to a statute (whether or not specifically named) shall include any statute amending consolidating or replacing the same and for the time being in force and a reference to a statute includes all statutory instruments orders plans regulations byelaws permissions and directions for the time being made issued or given or deriving validity pursuant to the same and any amendments thereto or replacements thereof. 2.6 References to any party to this Deed shall include the successors in title to that party and to any person deriving title through or under that party and in the case of the Council and County Council the successors to their respective statutory functions. 2.7 The headings are for reference only and shall not affect construction. 2.8 Words denoting an obligation on any party (whether as signatory or otherwise) to this Deed to do an act matter or thing include an obligation to procure that it is done and words placing any such party under a restriction include an obligation not to permit or allow infringement of the restriction. 2.9 Save as otherwise provided the covenants restrictions stipulations and obligations contained in this Deed shall be enforceable without any limit of time against the Owner and any successors in title of the Owner (including any freehold reversioner) or any person deriving title under or through the Owner to the Property or any part thereof as if that person had also been an original covenanting party in respect of the interest or estate for the time being held by that person PROVIDED ALWAYS THAT no person shall be liable to perform any covenant or obligation made or given under this Deed once he shall have parted with all his interest in the Property (or the part in respect of which any breach occurs) save in respect of any breach occurring during the period of his interest in the Property. 6

7 2.10 If any provision in this Deed shall be held to be invalid illegal or unenforceable the validity legality and enforceability of the remaining provisions shall not in any way be deemed thereby to be affected or impaired and the parties hereby agree to execute any deeds or documents to give effect to the intention of the provisions such that the provisions in question will become valid, legal and enforceable Nothing in this Deed shall be construed as restricting the exercise by the Council or the County Council of any power or function exercisable by them under the Act or any other Act or authority Any notice certificate or other written communication required to be served under the terms of this Deed shall be served on the party concerned by Recorded Delivery post during the Council s and the County Council s business hours of 10:00am to 4:00pm on a Working Day at the person s address as herein stated or such other address as shall be notified by Recorded Delivery post from time to time This Deed shall be registerable by the Council as a local land charge Where under this Deed any approval, consent, expression of satisfaction or agreement is required to be given by any party such approval, consent, expression of satisfaction or agreement shall not be unreasonably withheld or delayed References to the Property include any part of it Nothing in this Deed shall be construed as imposing a contractual obligation upon the Council as to the issue of the Planning Permission or restricting the exercise by the Council of any powers exercisable to it under the 1990 Act or under any other Act or authority. 3 LEGAL BASIS 3.1 This Deed relates to and binds the Property and is made pursuant to the provision of Section 106 of the Act and the obligations hereinafter contained shall be planning obligations to which the provisions of Section 106 of the Act shall apply and the Council and the County Council are the local planning authorities by which the provisions of this Deed shall be enforceable and in so far as the covenants herein contained 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 Section 33 of the Local Government (Miscellaneous Provisions) Act 1982 and Section 1 of the Localism Act 2011 and any other enabling powers. 3.2 This Deed shall terminate and cease to have any further effect if prior to Commencement of Development the Planning Permission expires, is quashed or revoked or in so far as the provisions thereof remain to be observed and performed if the Planning Permission is quashed or revoked following Commencement of Development (in each case other than at the request of the Owner). 3.3 Nothing in this Deed shall prohibit or limit the right to develop any part of the Property in accordance with a planning permission (other than the Planning Permission) granted (whether or not on appeal) after the date of this Deed. 3.4 The Owner enters into the obligations for itself and its successors in title with the Council and the County Council to the intent that the obligations hereunder shall be enforceable not only against the Owner but also against the successors in title of the Owner and any person claiming through or under the Owner an interest or estate in the Property or any part thereof. 4 CONDITIONALITY This Deed is conditional upon: (i) the grant of the Planning Permission; and 7

8 (ii) the Commencement of Development save for the provisions of Clauses 8, 9, 10, 11, 12 and 13 which come into effect immediately upon completion of this Deed. 5 THE OWNER S COVENANTS 5.1 The Owner for itself and its successors in title hereby covenants and undertakes with the Council and the County Council so as to bind the Property and every part thereof to carry out and comply with the obligations set out in this Deed and as follows: That they will give the Council and the County Council 10 Working Days notice in writing of their intention to Commence Development and further notify the Council and the County Council in writing of the following events within 10 Working Days of such event occurring: (i) (ii) (iii) Occupation of the first (1), forty second Unit Completion of the Affordable Housing Units Completion of the Development (42 n1d) and thereafter the final Residential 5.2 AFFORDABLE HOUSING Not to permit the Affordable Housing Units to be used for any purpose other than as Affordable Housing Not to dispose of any Affordable Rental Dwelling other than at an Affordable Rent Not to Commence Development until a scheme ( the Scheme ) for the provision and long term management of the Affordable Housing Units has been submitted to and approved in writing by the Assistant Director in consultation with the Housing Manager. The Scheme shall deal with and include the size and tenure of the Affordable Housing Units, which shall be consistent with the Dacorum Affordable Housing SPD Upon Commencement of Development the Owner shall implement the approved Scheme (as may be amended from time to time by agreement with the Council) From the date of Practical Completion of the Affordable Housing Units they shall not be used other than for Affordable Housing save that this obligation and the obligations in clauses 5.2.1, 5.2.2, and shall not be binding on: any Protected Tenant or any mortgagee or chargee of the Protected Tenant or any person deriving title from the Protected Tenant or any successor in title thereto and their respective mortgagees and chargees; or any Chargee provided that the Chargee shall have first complied with the Chargee s Duty any purchaser from a mortgagee of an individual Affordable Housing Unit pursuant to any default by the individual mortgagor The Chargee shall prior to seeking to dispose of the Affordable Housing Units or any of them pursuant to any default under the terms of its relevant security documentation shall give not less than one (1) month s prior notice to the Council of its intention to dispose ( the Chargee s Notice ) and: 8

9 in the event that the Council responds within one (1) month from service of the Chargee s Notice indicating that arrangements for the transfer of the Affordable Housing Units or the relevant part of them can be made in such a way as to safeguard them as Affordable Housing then the Chargee shall co-operate with such arrangements and use its reasonable endeavours to complete such transfer if the Council does not serve its response to the Chargee s Notice within the one (1) month provided for in the preceding sub-clause then the Chargee shall be entitled to dispose free of the restrictions set out in this clause 5.2 which shall cease to have effect in relation to the Affordable Housing Units or the relevant parts of them and which restrictions shall not bind any persons or bodies deriving title from or through such Chargee or any of their successors in title if the Council or any other person cannot within two (2) months of the date of service of its response under sub-clause complete such transfer then provided that the Chargee shall have complied with its obligations under sub-clause the Chargee shall be entitled to dispose free of the restrictions set out in this clause 5.2 which shall cease to have effect in relation to the Affordable Housing Units or the relevant part of them and which restrictions shall not bind any persons or bodies deriving title from or through such Chargee or any of their successors in title PROVIDED THAT at all times the rights and obligations in this paragraph shall not require the Chargee to act contrary to its duties under the charge or mortgage and the consideration for such transfer shall not be less than the amount due and outstanding under the terms of the relevant security documentation including all accrued principal monies, interest, costs and expenses and the Housing Manager may in his absolute discretion agree to waive the provisions of this clause Prior to the Occupation of fifty percent (50%) of the Residential Units, rounded down to the nearest whole Residential Unit, to construct to Practical Completion one hundred percent (100%) of the Affordable Housing Units unless otherwise agreed in writing by the Housing Manager Not to Occupy nor cause nor permit Occupation of more than forty nine percent (49%) of the Residential Units, rounded down to the nearest whole Residential Unit, until one hundred percent (100%) of the Affordable Housing Units have been constructed to Practical Completion unless otherwise agreed in writing by the Housing Manager 5.3 MAYLANDS BUSINESS PARK IMPROVEMENTS CONTRIBUTION To pay the Maylands Business Park Improvements Contribution to the Council prior to Commencement of Development as a contribution to be applied by the Council in its absolute discretion towards the cost of improving the Maylands Business Park as detailed on pages 12 & 13 of the Council s Maylands Business Park Improvement Specification Not to Commence Development nor cause nor permit Commencement of Development until the Maylands Business Park Improvements Contribution has been paid to the Council 5.4 NICKEY LINE CYCLE WAY IMPROVEMENTS CONTRIBUTION To pay the Nickey Line Cycle Way Improvements Contribution to the Council prior to Commencement of Development as a contribution to be applied by the Council in its absolute discretion towards the cost of upgrading the surface of Nickey Line Cycle Way Not to Commence Development nor cause nor permit Commencement of Development until the Nickey Line Cycle Way Improvements Contribution has been paid to the Council. 9

10 5.5 BUS STOP IMPROVEMENTS CONTRIBUTION To pay the Bus Stop Improvements Contribution to the County Council prior to Commencement of Development as a contribution to be applied by the County Council in its absolute discretion towards the cost of improving two bus stops in Swallowdale Lane through easy access kerbing and provision of shelters Not to Commence Development nor cause nor permit Commencement of Development until the Bus Stop Improvements Contribution has been paid to the County Council. 5.6 NICKEY LINE EXTENSION PLAN To submit the Nickey Line Extension Plan to the Council for approval prior to the Commencement of Development Not to Commence Development nor cause nor permit Commencement of Development until the Nickey Line Extension Plan has been approved by to the Council. 5.7 NICKEY LINE EXTENSION WORKS To submit an application to the Planning Inspectorate for Section 38 Consent prior to Commencement of Development Not to Commence Development prior to applying to the Planning lnspectorate for Section 38 Consent To use reasonable endeavours to obtain the Section 38 Consent and to enter into any necessary Section 278 Agreement as soon as reasonably practicable Subject to Section 38 Consent having been obtained and subject to any necessary Section 278 Agreement having been entered into to construct and provide at no cost to the Council or the County Council the Nickey Line Extension Works in accordance with the Section 278 Agreement (if applicable) prior to Occupation unless otherwise agreed in writing by the Assistant Director 5.8 TRAVEL PLAN PROVISIONS To pay the Travel Plan Evaluation and Support Contribution to the County Council prior to Commencement of Development as a contribution to be applied by the County Council in its absolute discretion towards the cost of evaluating, administrating and monitoring the objectives of the Travel Plan and engaging in any Travel Plan Annual Review Not to Commence Development nor cause nor permit Commencement of Development until the Travel Plan Evaluation and Support Contribution has been paid to the County Council Prior to Occupation of the Development: (a) To submit a draft Travel Plan for written approval to the County Council and obtain such approval and for the avoidance of doubt the Travel Plan shall be based on and accord with the Travel Plan Guidance and shall further contain as many of the provisions of the Travel Plan Guidance as in the reasonable opinion of the County Council are appropriate to the nature of the Development 10

11 and curriculum vitae of the proposed Travel Plan Champion and the nature of their relationship to the Owner Not to Occupy nor cause nor permit Occupation of the Development until the Travel Plan has At all times during Occupation of the Development to: implementing any actions by the specified dates in the Travel Plan been submitted to and approved in writing by the County Council shall endure throughout the duration of the Travel Plan (C) To appoint and retain the Travel Plan Champion at its own expense which retention (a) Comply with the terms of the approved Travel Plan including but not limited to covenant expressed in favour of the County Council in relation to the approved Travel Plan the name and address of the purchaser and/or tenant; the following details: any part or parts of the Property a covenant that the purchaser tenant or occupier will further that they will use all reasonable endeavours to enforce such obligation against any such purchaser tenant or occupier comply with the approved Travel Plan for such parts or parts of the Property and reasonably required by the County Council following review of the report submitted in pursuant to sub-paragraph (d) above and notified in writing to the Owner the date of each Travel Plan Annual Review such report shall include (but shall not be findings of such review to the County Council within three (3) calendar months from Travel Plan whether or not the objectives of the Travel Plan have been achieved Plan the Development obtain such approval and such nomination shall include contact details full particulars (b) To nominate a Travel Plan Champion for written approval of the County Council and (b) Promote and publicise the approved Travel Plan to owners occupiers and visitors to (c) Implement the Travel Plan by the dates or within the time limits set out in the Travel (d) Carry out the Travel Plan Annual Review and submit a written report setting out the limited to) recommendations for amendments or improvements to the approved (e) Comply with any variations or amendments to the Travel Plan permitted by this Deed which shall in addition include any reasonable amendments or improvements (f) To ensure that they will include in any transfer tenant s lease or occupier s licence of (g) Within twenty (20) Working Days of the transfer or letting of the Property or any part or parts thereof they will procure the delivery to the County Council of a notice giving ii. a description of the premises demised; iii. the length of the term; and iii. a sufficient extract of the transfer or lease setting out the terms of the 11

12 5.9 FIRE HYDRANTS to ensure that the Water Scheme incorporates fire hydrants in accordance with BS 750 (2006) as reasonably and properly required by the Fire and Rescue Service not to Commence Development nor cause nor permit Commencement of Development until they shall have prepared and submitted the Water Scheme to the Fire and Rescue Service for its written approval to construct and provide at no cost to the Fire and Rescue Service or the County Council the fire hydrants reasonably and properly indicated in the Water Scheme and to advise the Fire and Rescue Service in writing of the date upon which each and every fire hydrant becomes operational and ready to be used for the purpose of fire-fighting by the Fire and Rescue Service once operational as aforesaid to maintain the fire hydrants in good condition and repair such that they are suitable at all times for use by the Fire and Rescue Service until they are adopte& by the Fire and Rescue Service which adoption shall take place on the date specified in a written confirmation issued by the Chief Fire Officer of the Fire and Rescue Service provided that such written confirmation shall not be issued prior to the issue by the Director of Environment of the certificate of maintenance for the highways in which the fire hydrants are located not to Occupy nor cause nor permit Occupation of any part of the Development until such time as it is served by a fire hydrant which is operational and ready to be used for the purpose of fire-fighting by the Fire and Rescue Service to address any notice to be given to the Fire and Rescue Service to the Water Services Officer, Fire and Rescue Service, Old London Road Hertford SG13 7LD Telephone OFF-SITE PLANTING SCHEME To submit a draft Off-Site Planting Scheme to the Council for approval prior to the Commencement of Development Not to Commence Development nor cause nor permit Commencement of Development until the Off-Site Planting Scheme has been approved by the Council To implement the approved Off-Site Planting Scheme and ensure that the Development shall be maintained in strict accordance at all times with the requirements of the approved Off-Site Planting Scheme as agreed with the Council from time to time and in the event of non compliance with this sub-clause the Owner shall forthwith take any steps required to remedy such non-compliance Once approved by the Council the Off-Site Planting Scheme shall be deemed to be incorporated in the terms of this agreement as if the same had been fully set out herein 5.11 LAND OWNERSHIP The Owner warrants that it is the freehold owner of the Property identified edged red on the Plan annexed hereto excluding the land hatched black under the title number listed in Recital (B) and the Property is free from any other proprietary interests and from all mortgages charges or other encumbrances save for those (if any) revealed by the Land Registry title 12

13 6 EXCLUSION OF CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999 The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Deed and any person who is not a party to this Deed (or a statutory successor to the Council or a successor in title to one of the original parties) shall not be entitled in that person s own right to enforce any provisions of this Deed pursuant to the provisions of the said Act 7 INDEXATION 7.1 The Maylarids Business Park Improvements Contribution, the Nickey Line Cycle Way Improvements Contribution and the Bus Stop Improvements Contribution shall be index linked to any increase in the index linked in accordance with the All Items index of the Index of Retail Prices from the date of this Deed until the date of payment 7.2 The Travel Plan Evaluation and Support Contribution shall be index-linked to any increase in the index linked by reference to the price adjustment formula for construction contracts in the Monthly Bulletin of Indices published by Her Majesty s Stationery Office as collated into a single index known as the SPONS Construction Civil Engineering Cost Index from the date of the Planning Permission to the date on which the Travel Plan Evaluation and Support Contribution is paid 7.3 Where any sum to be paid by the Owner under the terms of this Deed is required to be index linked then an interim payment shall initially be made using the latest available forecast figure (or figures as the case may be) at the date of payment and any payment or payments by way of adjustment shall be made within 14 days of written demand by the County Council and/or the Council or the Owner as the case may be once the relevant indices have been finalised 8 MISCELLANEOUS 8.1 The Owner shall pay to the Council and the County Council on completion of this Deed the reasonable legal costs of the Council and the County Council incurred in the negotiation, preparation and execution of this Deed. 8.2 This Deed shall be registrable as a local land charge by the Council. 8.3 Where the agreement, approval, consent or expression of satisfaction is required by the Owner from the Council or the County Council under the terms of this Deed such agreement, approval or consent or expression of satisfaction shall not be unreasonably withheld or delayed and any such agreement, consent, approval or expression of satisfaction shall be given on behalf of: (i) (ii) the Council by the Assistant Director of Planning, Development & Regeneration the County Council by the Chief Legal Officer and any notices shall be deemed to have been properly served if sent by recorded delivery to the principal address or registered office (as appropriate) of the relevant party. 8.4 Following the performance and satisfaction of all the obligations contained in this Deed the Council shall forthwith upon request effect the cancellation of all entries made in the Register of Local Land Charges in respect of this Deed. 8.5 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. 8.6 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 (without the consent of the Owner) it is modified by any statutory procedure or expires prior to the Commencement of Development. 8.7 No person shall be liable for any breach of any of the planning obligations or other provisions of this Deed occurring after it shall have parted with its entire interest in the 13

14 Property or the part in respect of which any breach occurs save that it shall remain liable for any such breach occurring before it parted with possession of such interest in the Property or the relevant part of it. 8.8 Nothing in this Deed shall prohibit or limit the right to develop any part of the Property in accordance with a planning permission (other than the Planning Permission) granted (whether or not on appeal) after the date of this Deed. 8.9 Nothing contained or impiled in this Deed shall prejudice or affect the rights discretions powers duties and obligations of the Council or the County Council under all statutes by laws statutory instruments orders and regulations in the exercise of their functions as local authorities. 9 WAIVER No waiver (whether express or implied) by the Council or the County Council of any breach or default in performing or observing any of the covenants restrictions stipulations or obligations contained in this Deed shall constitute a continuing waiver and no such waiver shall prevent the Council or the County Council from enforcing any of such covenants restrictions stipulations or obligations or from acting upon any subsequent breach or default. 10 CHANGE IN OWNERSHIP The Owner agrees with the Council and the County Council to give the Council and the County Council written notice as soon as reasonably practicable and in any event within 10 Working Days of any change in ownership of any of its interests in the Property 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 Property or unit of occupation purchased by reference to a plan. 11 DISPUTE PROVISIONS 11.1 In the event of any dispute or difference arising between any Dispute Parties to this Deed in respect of any matter contained in this Deed such dispute or difference shall be referred to an independent and suitable person holding appropriate professional qualifications to be appointed (in the absence of an agreement) on the application of either of the Dispute Parties by or on behalf of the president for the time being of the professional body chiefly relevant in England with such matters as may be in dispute and such person shall act as an expert whose decision shall be final and binding on the parties in the absence of manifest error and any costs shall be payable by the Dispute Parties in such proportion as the expert shall determine and failing such determination shall be borne by the parties in equal shares In the absence of agreement as to the appointment or suitability of the person to be appointed pursuant to Clause 11.1 or as to the appropriateness of the professional body then such question may be referred by any Dispute Party to the president for the time being of the Law Society for him to appoint a solicitor to determine the dispute such solicitor acting as an expert and his decision shall be final and binding on all Dispute Parties in the absence of manifest error and his costs shall be payable by the Dispute Parties in such proportion as he shall determine and failing such determination shall be borne by the Dispute Parties in equal shares Any expert howsoever appointed shall be subject to the express requirement that a decision was reached and communicated to the relevant Dispute Parties within the minimum practicable timescale allowing for the nature and complexity of the dispute and in any event not more than twenty-eight (28) Working Days after the conclusion of any hearing that takes place or twenty-eight (28) Working Days after he has received any file or written representation The expert shall be required to give notice to each of the said Dispute Parties requiring them to submit to him within ten (10) Working Days of notification of his appointment written 14

15 submissions and supporting material and the other party will be entitled to make a counter written submission within a further ten (10) Working Days The provisions of this clause shall not affect the ability of the Council or the County Council to apply for and be granted any of the following: declaratory relief, injunction, specific performance, payment of any sum, damages, any other means of enforcing this Deed and consequential and interim orders and relief For the avoidance of doubt Clause 11 shall not bind the County Council and the County Council shall not be required to submit any determination pursuant to Clause JURISDICTION This Deed is governed by and interpreted in accordance with the law of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales. 13 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. IN WITNESS whereof the parties hereto have executed this written. Deed on the day and year first before The COMMON SEAL of DACORUM BOROUGH COUNCIL was hereunto affixed in the presence of:- ) ) ) ) C Authorised Signatory The COMMON SEAL of HERTFORDSHIRE COUNTY COUNCIL was hereunto the presence of:- ) )) /t, EXECUTED as a Deed by HIGHTOWN HOUSING ASSOCIATION LIMITED acting by two of its or by one its directors and its company secretary directors. John Oakley Head of Commerdal La aa4kdk kca1f

16 SCHEDULE I OFF-SITE PLANTING SCHEME The Off-Site Planting Scheme must set out: 1. Planting plans for the common land as identified coloured green on Plan I 2. Written specifications, cultivation and other operations associated with plant and tree establishment, schedules of plants and trees (noting species, tree sizes and proposed numbers/densities) 3. Detailed programme for the implementation of the Off-Site Planting Scheme 4. Detailed scheme for the maintenance of the trees and plants subject of the Off-Site Planting Scheme 16

17 SCHEDULE 2 NICKEY LINE EXTENSION PLAN The Nickey Line Extension Plan must set out: 1. The precise width, position and surface materials for the Nickey Line Extension Works at a scale of 1:200 17

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