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T H E C I T Y OF E D I N B U R G H C O U N C I L
Legal Agreements: Model Section 75 Agreement
Final Version
-
Planning Committee
13 May 201 0
1
Purpose of report
1.1 To inform Committee of the alterations made to the draft model agreement
following a consultation exercise and to seek approval of the revised model
agreement.
2
Summary
2.1 A draft model agreement was included in the Committee report of 3 December
2009 on legal agreement improvements. It was agreed that the model
agreement would be put out to consultation. This report sets out the responses
to this exercise and the resulting alterations made to this model agreement.
3
Main report
Background
3.1
In September 2008 the Planning Agreements Team was audited by the
Council’s Internal Auditing Service. The remit was to review the system in place
for developer contributions and ensure that all contributions are formalised in
agreements under section 75 of the Town and Country Planning (Scotland) Act
1997.
3.2 On 2 April 2009 a report was presented to the Audit Committee. It noted that
there had been improvements made in this service area but also identified
areas where further improvement was required. One of the identified
improvements was the production of a model Section 75 agreement.
1
Model Legal Agreement
3.3 The Audit Committee identified the need to prepare a standard legal agreement
in the interests of consistency and to aid monitoring.
3.4 It is not possible to dictate the terms of Section 75 agreements as they are
voluntary agreements. However, the Council as Planning Authority is seeking
to approve planning applications in compliance with its policies and there are
benefits in setting out the Council’s preferred terms in advance. The preparation
of a model agreement is provided as an aid in the preparation of legal
agreements when required in connection with planning applications.
3.5 The provisions in this document are not exhaustive. They do not cover all of the
circumstances in which contributions will be sought or other requirements that
may be placed upon developers. It would not be possible to achieve this and
instead it is considered more useful to identify the standard provisions that
apply in most instances. It is accepted that the clauses provided will need to be
amended to suit individual circumstances.
3.6 It is hoped that this document will be a useful tool in facilitating discussions on
developer contributions and streamlining the process. It is intended as a means
of making this aspect of the planning process clearer to all parties involved.
Consultation Responses
3.7 A total of 164 invitations were made to various firms and bodies to take part in
the consultation exercise. Seven written responses were received, amongst
which there were responses from Solicitors, Architects and Designers,
Registered Social Landlords, relevant professional bodies and planning
consultants on behalf of their clients.
3.8 The model agreement has in general been welcomed by the respondents and
by others who have been in touch to discuss the document but who have not
provided a written response. Some of the consultation responses made
reference to wider matters of policy or process, which are not relevant to the
consideration of the model agreement. These issues will be considered in any
wider review of policy or process.
3.9
The consultation exercise identified a number of useful points for consideration.
These points and the responses to them are set out in Appendix 2. Alterations
have been made to the model agreement where considered appropriate
following consultations with other relevant functions. The final version of the
Agreement is attached at Appendix 1 with the amendments underlined.
3.10 The benefits from this exercise and the changes made to the model agreement
can be summarised as follows:
0
The incorporation of useful suggestions for improvements to both the
introduction and the model agreement document, which have included
new and revised clauses and definitions (see Appendix 2).
2
0
0
4
The opportunity to bring matters of importance and concern to the
respondents to the attention of relevant colleagues in the planning and
other functions involved.
The responses received have given colleagues with policy
responsibilities the opportunity to liaise with customers about the matters
that have been raised, but which do not have a specific bearing on the
terms of the current model agreement.
Financial Implications
4.1 The effective negotiation and monitoring of section 75 agreements is important
in ensuring that the Council is able to deliver infrastructure to meet the needs of
development. This report identifies improvements designed for this area of
work. There are no significant financial implications arising from this report.
5
Environmental Impact
5.1 This report is concerned with improvements made to the model section 75
agreement and not to any change in policy. It will not have any impact on the
quality of development or the actual infrastructure delivered in conjunction with
development. There is no resultant environmental impact.
6
Conclusions
6.1 The revised model agreement will make it clearer to all parties involved in the
planning process what is actually included in a Section 75 agreement. It will be
a useful tool in facilitating the negotiation of section 75 agreements. It is hoped
that this document will help to streamline the planning process.
7
Recommendations
7.1 It is recommended that the Committee approves the revised model legal
agreement (Appendix 1).
Dave Anderson
Director of City Development
3
Appendices
Appendix 1: Revised Model Section 75 Agreement
Appendix 2: Model Legal Agreement Consultation
Response and Consideration
Contacthe1
David Cooper 529 6233
Ian Williams 529 3752
Wards affected Allkity wide
Single
Outcome
Agreement
Supports National Outcome 1: We live in a Scotland that
is the most attractive place for doing business in Europe.
Supports Edinburgh Outcome: Edinburgh is a thriving,
growing city with a high quality of life and environment
and a prosperous economy.
Supports National Outcome IO: We live in well-designed,
sustainable places where we are able to access the
amenities and services we need.
Supports National Outcome 12: We value and enjoy our
built and natural environment and protect it and enhance
it for future generations
Supports Edinburgh Outcome: Edinburgh’s natural and
built environment is supported and enhanced.
Background
Papers
The consultation responses, bar one where a request for
anonymity has been made, are available on request.
IW/FK/PLANCOM/Model S75 Agreement
4 May 2010
4
APPENDIX I
Model S.75 Agreement City of Edinburgh Council 2010
Contents
lntroduction
Pages 3-4
Section 1 - Title and Preamble
Pages 5-6
Section 2 - Definitions
Pages 7-14
Section 3 - Operative Clauses
Pages 15-25
.
Affordable Housing
Pages 15-19
Education
Page 20
Tram
Page 21
Transport
Pages 22-25
Section 4 - General Clauses
Pages 26-28
2
Introduction
This document has been prepared as the City of Edinburgh Council’s ‘model legal
agreement’ under Section 75 of the Town and Country Planning (Scotland) Act 1997.
It is provided as an aid in the preparation of legal agreements when required in
connection with planning applications.
The clauses contained in Section 2 - Operative Clauses, represent the preferred terms
in which the Council will seek to enter into Section 75 agreements in relation to the
Council’s policies that involve developer contributions. These policies are as follows;
Affordable Housing;
Developer Contributions for Investment in Schools;
Tram Developer Contribution Guideline; and,
Transport Requirements: Developer Contributions.
Further notes on the way in which these policies are implemented via agreements are
provided alongside each of the model clauses. These policies can be accessed in full
using the Council’s website.
Planninq Circular 1110: Plannninq Aqreements sets out Scottish Government policv on
the use of aqreements made under Section 75 of the Town and Country Planninq
/Scotland) Act 1997. This model Section 75 Aqreement takes into account the policv
tests and principles set out in the Circular.
The provisions in this document are not exhaustive. They do not cover all of the
circumstances in which contributions will be sought or other requirements that may be
placed upon developers. It would not be possible to achieve this and instead it is
considered more useful to identify the standard provisions that apply in most
instances. It is accepted that the clauses provided will need to be amended to suit
individual circumstances for example; in connection with large developments the
Council will usually be willing to phase large contributions. A Section 69 Agreement
under the Local Government (Scotland) Act 1973 mav be acceptable provided
3
pavments are made at the r>oint of sisnina and before the release of Dlanninq
permission.
It is hoped that this document will be a useful tool in facilitating discussions on
developer contributions and streamlining the process. It is intended as a means of
making this aspect of the planning process, clearer to all parties involved.
4
Section 1 - Title Page and Preamble
MINUTE OF AGREEMENT
between
THE CITY OF EDINBURGH COUNCIL, the
Local Authority for the said City in terms of
the Local Government etc. (Scotland) Act
1994, and having its principal office at City
Chambers, High Street, Edinburgh (who
and whose successors as the Planning
Authority and Roads Authority respectively
are hereinafter referred to as "the Council")
and
(ENTER COMPANY NAME) a Company
incorporated under the Companies Acts,
Company
Number
(enter
company
number) and having its Registered Office
at (enter address)
or
(ENTER RSL NAME) registered under the
Industrial and Provident Societies Acts
a
(Registered Number enter
Scottish Charity (Registered Number enter
)I
) and having its Registered Office at (enter
address)
(who with their respective successors in
ownership of the Agreement Subjects as
hereinafter defined are hereinafter referred
to as "the Proprietors")
5
CONSIDERING
(One) that the Council is the planning authority for the City of
Edinburgh in terms of Section 1 of the Town and Country Planning (Scotland) Act
1997 (hereinafter referred to as "the 1997 Act");
(Two) that the Council is the roads authority for the City of
Edinburgh in terms of Section 151 of The Roads (Scotland) Act 1984 (as said Section
151 is amended by Section 180 and Paragraph 135( I O ) of Schedule 13 to the Local
Government etc. (Scotland) Act 1994);
(Three) that the Council as planning authority is entitled in terms
of Section 75 of the 1997 Act, to enter into an agreement with any person interested
in land in its district (in so far as the interest of that person enables him to bind the
land) for the purpose of restricting or regulating the development or use of the land,
either permanently or during such period as may be prescribed by the agreement;
(Four) that the Proprietors are heritable proprietors of the
Agreement Subjects as hereinafter defined;
(Five)
that the Proprietors have applied to the Council for
planning permission under the 1997 Act for the Development as hereinafter defined
and the Council has resolved to grant said permission subject inter alia to an
Agreement under Section 75 of the 1997 Act being entered into in the terms aftermentioned.
NOW THEREFORE the parties hereto have agreed and do hereby agree as follows:-
6
Section 2 - Definitions
“the Act“
means the Town and Country Planning (Scotland)
Act 1997;
“Affordable Housing
means:
Contracts”
(a)
a contract or contracts for sale by the
Proprietors of land within or forming part of
the Agreement Subjects for the purposes of
constructing Affordable Housing Units; or
(b)
a contract or contracts entered into by the
Proprietors for sale or lease of Affordable
Housing Units to persons in housing need; or
such other contract or contracts as may be
agreed by the Council for the purposes of
providing Affordable Housing Units;
“Affordable Housing
means that area or piece of ground forming part of
Subjects”
the Agreement Subjects and shown hatched in black
on the Plan, or a site to be agreed by the Council
and the Proprietors capable of accommodating the
Affordable Housing Units;
“Affordable Housing Unit”
means a residential unit which is social rented
housing, mid rent housing, shared equity housing,
shared ownership housing, discount low cost sale,
housinq without subsidv or other format of affordable
housing tenure which is agreed by the Council as
meeting the requirements of persons in housing
need and which unit is constructed to Lifetime
Homes Standard as defined in the Council’s
document “New Build Target Standards - A Practice
7
Note on Design Quality in New Affordable Housing
Development”, provided that, in the event that the
agreed form of affordable housing units do not
attract public funds in respect of their provision, the
Council may waive or vary the requirement that such
units be constructed to Lifetime Homes Standard;
“the Agreement Subjects”
means ALL and WHOLE land at [insert address
here], Edinburgh, registered in the Land Register of
Scotland under Title Number [insert number here];
(or enter Sasines Conveyancing description here)
‘Ithe Application”
means the application for planning permission
registered by the Council on [ enter date] under the
Council’s reference (enter planning application
reference) for the Development;
“Bus Stop Improvements
means the sum of (enter amount in words)
Cont ribution”
POUNDS (fenter amount) STERLING;
“Citv Car Club Contribution”
means the sum of (enter amount in words)
POUNDS (fenter amount) STERLING;
“
Co mmencement Date”
means the date on which the Development is
initiated by the carrying out of any Material
Operation;
“Commuted Sum for
means the sum of [insert number here] POUNDS
Aff o rda ble Ho using”
(f[insert]) STERLING to be applied by the Council
for the provision of Affordable Housing Units;
8
“Completion of Construction”
means the issuinq of a Notice of Acceptance of
Completion Certificate by the Buildinq Standards
Department of the Council;
“the Development”
means the development consisting of [enter
description of proposed development here] on the
Agreement Subjects in terms of the Permission;
“Discount Low Cost Sale”
means a residential unit sold at a percentage
discount of its open market value for households to
persons in housing need;
“Education Contribution”
means the sum of (enter amount) POUNDS (f enter
amount)
STERLING
towards
alleviating
accommodation pressures at School, Edinburgh.
“Housing without subsidy”
means non-subsidised Affordable Housing Units
with conditions attached to the missives to maintain
the
units
as
Affordable
Housing
Units
to
subsequent purchasers, such purchasers being
persons in housing need;
“Index”
means the All-in Tender Price Index firm figures as
published by the Building Cost Information Service
of the Royal Institution of Chartered Surveyors on a
monthly basis, or if that ceases to be published or
the basis upon which such index is calculated is
substantially changed or rebased, such substitute or
alternative index most likely to achieve an equivalent
result as the parties may agree or, in the absence of
agreement, as shall be determined pursuant to
9
Clause (arbitration) of this Agreement;
“Indexed”
means increased in accordance with the following
formula:-
bxc
a
Where: a equals the All-in Tender Price Index
published as at the final date of signing of this
Agreement, b equals the Index as at the date of
payment of the relevant sum to be indexed, and c
equals the relevant sum to be Indexed;
“Material Operation”
Has the meaning given in section 27 of the Act. For
the avoidance of doubt, this definition excludes any
material operation undertaken in terms of any valid
planning permission granted before the date of the
Permission;
“mid rent housing”
means housing with rents set at a level higher than
social rented housing, but lower than market rent
levels to meet the requirements of persons in
housing need, such rent levels to be agreed with the
Council, acting reasonably having regard to other
schemes in Edinburgh and the
Government auidance;
10
most recent
“Off-site Affordable Housing means the landdarea known as (enter name of
Subiects Site”
subiects) and reaistered in the Land Resister of
Scotland under Title Number (enter title number)
or.. . .that area or piece of ground referred to as “Offsite Location” on the plan annexed and sianed as
relative hereto which area of around forms part and
portion of ALL and WHOLE (enter convevancinq
description here2;
“Open Market Housina”
means the Residential units comprised in the Total
Housina Units which are not Affordable Housing
Units;
“the Permission”
means the planning permission for the Development
subject to the conditions set out in the report on the
Application to the Council’s Development Quality
Sub-committee held on [enter date];
“persons in housing need”
means persons with identified housing needs that
would not be met by the normal operation of the
housing market in terms of criteria set by the Council
from time to time for low cost home ownership
housing, mid rent housing and social rented housing
or such other type of affordable housing units that
may be agreed by the Council to constitute
affordable housing tenure;
I‘
Plan”
means the plan annexed and signed as relative
hereto;
11
“Registered Social Landlord”
means a landlord registered under Section 57 of the
Housing (Scotland) Act 2001 or their subsidiarv;
“residentiaI unit”
means any property within the Agreement Subjects
constructed and designed for residential use of any
sort and which term may apply individually or to a
group of such units whether divided from one
another either vertically or horizontally and which
term also includes the Affordable Housing Units;
“Road and Junction
Means the sum of (enter amount in words)
Improvements Contribution”
POUNDS (f enter amount) STERLING;
“Safer Routes to School
Means the sum of (enter amount in words)
Contribution”
POUNDS (f enter amount) STERLING;
“shared equity housing ”
means
the individual owner of a residential unit
whilst bearing to own a 100% share of a residential
unit owns a part agreed share with the remaining
share secured to a registered social landlord or
Scottish Ministers or other such landlord or body as
may be approved by the Council;
“shared ownership housing”
means the individual owner purchases part of the
residential unit, with the remaining share of the
residential unit
remaining in the ownership by a
Registered Social Landlord. The individual owner
pays rent for the share of the residential unit
retained by the Reqistered Social Landlord. The
Registered Social Landlord benefits from any equity
12
gain when the house is sold;
“social rented housing”
means property provided at an affordable rent
owned, managed, leased or otherwise provided by
a Registered Social Landlord (or such other body as
maybe approved by the Council) to meet the
requirements of persons in housing need;
“Temporary TRO”
means
an
order
allowing
for
the
Roads
Authority/Council to temporarily restrict or prohibit
the use of a road, or any part of a road, by vehicles
or pedestrians; where works are being or are
proposed to be carried out on or near the road and
there is a likelihood of danger to the public or of
serious damage to the highway.
“Temporary TRO
means the sum of (enter amount) POUNDS (f enter
Contribution”
amount) STERLING ;
“Total Housing Units”
means the total number of residential units which
are permitted to be constructed on the Agreement
Subjects in terms of the Planning Permission;
“Tram Contribution”
means the sum of (enter amount) POUNDS (f enter
amount) STERLING;
“Tram Project”
means the proposals to construct and operate tram
lines in Edinburgh including the provision of tram
vehicles,
tram
stops,
and
all
associated
infrastructure, plant and equipment, as authorised
by the Edinburgh Tram (Line One) Act 2006 and the
Edinburgh Tram (Line Two) Act 2006 as may be
amended from time to time;
“Transferring Party”
means a Proprietors whom has used all reasonable
endeavours to transfer the Affordable Housing and
to
enter
into
Contracts,
any
other
Affordable
Housing
and whom elects to transfer
the
ownership of the Affordable Housing Subjects to the
Council for nil consideration;
“Transport Contribution”
means the sum of (enter amount) POUNDS (fenter
amount)
STERLING towards
public
transport
infrastructure improvements in the vicinity of the
Development;
“Transport Improvement
means works to be carried out by the Proprietors in
Works”
the vicinity of the Development, specifically (enter
details of works to be carried out to local transport
infrastructure here);
“TRO Contribution”
means the sum of (enter amount) POUNDS (f enter
amount) STERLING;
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Section 3 - Operative Clauses
3.1 AFFORDABLE HOUSING
The requirement for affordable housing will be assessed through the
application process. The Council’s guideline, Affordable Housing Policy is a
key document in this respect. The usual arrangement between CEC and a
Private Developer is that land for 25% of the residential units will be passed
on to a Registered Social Landlord at nil value, before 30% of the market
units have been completed. The Registered Social Landlord will normally
then develop the affordable housing land. There are circumstances in which
commuted sums and off-site provision will be acceptable. As a result
clauses reflecting these arrangements are also provided.
3.1.I.On-site Affordable Housing
(a)
Twenty-five percent of the Total Housing Units shall be Affordable
Housing Units, which units shall be constructed on the Affordable
Housing Subjects;
(b)
The Proprietors will agree the following details with the Council
before the Commencement Date:(i)
the type of affordable housing tenure for the Affordable
Housing Units;
(ii)
the location(s) of the Affordable Housing Subjects if not
already agreed between the Council and the Proprietors;
(iii)
the design standards to which the Affordable Housing
Units are to be built, which standards shall be agreed with
the Council’s Housing Department (Services for
Communities) and shall not be deemed to have been agreed
by virtue of the grant of the Planning Permission or any other
approval granted by the Council’s Head of Planning and
Strategy;
15
(iv)
the type of Affordable Housing Contracts by which the
Affordable Housing Units are to be leased, sold or otherwise
made available to persons in housing need whether by
transfer of land or completed units to the Council, to a
Registered Social Landlord or otherwise;
c)
The details agreed in Sub-clause (b) shall be implemented by the
Proprietors to the satisfaction of the Council but may be varied by
agreement of the Proprietors and the Council both acting reasonably
at all times.
d)
The Proprietors shall use all reasonable endeavours to enter into
Affordable Housing Contracts with the Council, or a third party
nominated by the Council, prior to the completion of construction of
twenty-five per cent of the Market Housing.
e)
The Proprietors shall use all reasonable endeavours to transfer the
Affordable Housing Subjects to the Council or to a third party
nominated by the Council, prior to the completion of construction of
thirty per cent of the Market Housing.
f)
In the event that the Proprietors have been unable to enter into any
other Affordable Housing Contracts in accordance with Clause 3.1 .I
(d) prior to the completion of construction of twenty-five per cent of the
Market Units, the Proprietors shall give notice to that effect to the
Council and shall with any such notice provide the Council with
evidence demonstrating that
they
have used all
reasonable
endeavours to transfer the Affordable Housing and to enter into any
other Affordable Housing Contracts. If, following receipt of the said
notice, the Council (being bound to act reasonably) confirms that it is
satisfied that the Proprietors have used all reasonable endeavours as
aforesaid, then the provisions of Clause 3.1.I(d) shall cease to apply
and in that event the Proprietors shall continue to use all reasonable
16
endeavours to transfer the Affordable Housing Subjects to the
Council, or to a Registered Social Landlord or to enter into any other
Affordable Housing Contracts; provided always that no more than
thirty per cent of the Market Units shall be permitted to reach
completion of construction until such time as the Proprietors have
entered into any other Affordable Housing Contract.
g)
If, following receipt of the said notice in accordance with clause 3.1.1
(f), the Council (being bound to act reasonably) confirms that it is
satisfied that the Proprietors have used all reasonable endeavours as
aforesaid, then the Proprietors shall have the option to transfer the
Affordable Housing Subjects to the Council for no consideration. In the
event that the Council cannot within 60 months of the exercise of such
option enter into Affordable Housing Contracts to provide Affordable
Housing Units or transfer them to a Registered Social Landlord the
Council shall at the request of the party from whom the Council
obtained ownership of the Affordable
Housing Subjects (“the
Transferring Party”) transfer the Affordable Housing Subjects back to
that Transferring Party who shall be able to market them for the
purposes of Market Housing.
h)
In the event that the Proprietors exercises the option referred to in
Clause 3.1.1(g) the Transferring Party shall be bound to grant the
Council or the third party nominated by the Council, as the case may
be, a valid marketable title to the Affordable Housing Subjects.
i)
The terms of the conveyance of the Affordable Housing Subjects shall
be agreed prior to the delivery thereof among the Council and the
Proprietors and the third party nominated by the Council, as the case
may be, declaring that the said conveyance shall contain the
Proprietors’ absolute warrandice insofar as relating to the Affordable
Housing Subjects and may, at the option of the Proprietors, contain a
condition providing that the Affordable Housing Subjects shall be used
17
only for the provision of Affordable Housing Units.
j)
On the delivery of the duly executed conveyance of the Affordable
Housing Subjects to the Council, or the third party nominated by the
Council, the limits on the occupation of Affordable Housing Units
contained in clause 3.1 shall cease to apply.
N.B. For sites which are 100% RSL-owned the following sentence is to be inserted at
Clause 3.1. I (b)
3.1.1 (b) The following clauses (b) to
0)
inclusive shall only apply if the said
Agreement Subjects are sold to a party other than a Registered Social Landlord as
defined by the Housing (Scotland) Act 2001 as amended.
3.1.2 Commuted Sum for Affordable Housing
The Proprietors will pay to the Council the Commuted Sum for
Affordable Housing before the Commencement of Development on the
Agreement Subjects.
On the delivery of the payment of the Commuted Sum to the Council
by the Transferring Party, the limits on the Affordable Housing Subjects
contained in clause 3.1 shall cease to apply.
In the event of the Commuted Sum for Affordable Housing not being
utilised in full by the Council within ten years of the date of payment to
the Council (or if phased payments the date of the last payment) for
the provision of Affordable Housing Units the such contribution or the
unused part thereof, as appropriate, shall be refunded to the
Transferring Party following a written request from the Transferring
Party for repayment.
N.B. Where larger residential developments are proposed the Council may negotiate
the payment of the Commuted Sum for Affordable Housing by way of instalments
linked to phasing.
18
3.1.3 Offsite Affordable Housing
The Proprietors will submit detailed proposals (or the Council and the
Proprietors will reach an agreement regarding the terms and conditions
that an offsite location must meet, in line with policy requirements) for
the off-site provision of the Affordable Housing Subjects.
The
Proprietors will submit details of the Off-site Affordable Housing
Subjects site where they are to be located to be approved by the Head
of Services for Communities.
Following receipt of the said approval, the Proprietors will deliver to the
Council, or to a Registered Social Landlord approved by the Council,
the whole title and interest in the Off-site Affordable Housing Subiects
Site for
nil consideration prior to the Commencement of Development
on the Agreement Subjects.
On the delivery of the duly executed conveyance of whole title and
interest of the Off-site Affordable Housing Subiects Site to the Council,
or the third party nominated by the Council, the limits on the Affordable
Housing Subjects contained in Clause 3.1 shall cease to apply.
19
3.2 EDUCATION
The requirement for a contribution towards school infrastructure will be
assessed through the application process. The Council’s guideline,
Developer Contributions for Investment in Schools is a key document
in this assessment and identifies the circumstances in which
contributions will be sought. The clauses below set out the way in
which contributions should be delivered. In relation to large
developments phased payments may be acceptable and will be paid at
appropriate points in the construction programme.
Education
contributions should be indexed to the date of payment.
3.2.1 Education Contribution
(a)
Prior to carryi g out any M terial Operation/o xpation of any
residential unit (delete as appropriate), the Proprietors shall pay to the
Council the Education Contribution Indexed.
(b)
In the event of the Education Contribution paid under Clause (2.l(a))
hereof not being utilised in full by the Council within [fiveken] (delete as
appropriate) years of the date of payment to the Council then such
contribution or the unused part thereof, as appropriate, toqether with
anv interest that has accrued thereon, shall be refunded to the
Proprietors following a written request from the Proprietors for
repayment.
N.B. The decision as to whether the Council will hold the money for ten years or five
years will be dependent upon the programme for delivery of school infrastructure and
the need to identify further funding.
20
3.3 TRAM
The requirement for a contribution towards the tram project will be assessed
through the application process. The Council’s Tram Developer Contributions
guideline is a key document in this assessment and identifies a number of
contributions which may be sought. The clauses below set out the way in
which contributions should be delivered. In relation to large developments
phased payments may be acceptable and will be paid at appropriate points in
the construction programme.
3.3.1 Tram Contribution
Prior to the date on which the Proprietors Commence Development,
the Proprietors shall pay to the Council the Tram Contribution Indexed
to the date of payment, which Tram Contribution shall be applied
towards the Tram Project. In the event that the Council decides not to
proceed with the Tram Project or if the Tram Project has not
commenced within ten years of the date of payment of the Tram
Contribution, the Council shall be entitled to use the Tram Contribution
for the provision of alternative public transport improvements serving
the Development.
The Council shall on receipt of the Tram Contribution pay the Tram
Contribution into a separate account held by the Council, which Tram
Contribution shall be invested so as to earn the best rate of interest
that can reasonably be obtained by the Council.
In the event of the Tram Contribution not being utilised by the Council by 31
December 2020 then the Tram Contribution, together with any interest that
has accrued thereon, shall be refunded to the Proprietors following receipt of
a
written
request
from
the
21
Proprietors
for
repayment.
3.4 TRANSPORT
The requirement for a contribution towards transport infrastructure will be
assessed through the application process. The Council’s guideline, Transport
Requirements: Developer Contributions is a key document in this assessment
and identifies a number of contributions which may be sought. The clauses
below set out the way in which contributions should be delivered. In most
cases it is preferable for the developer to carry out the necessary works
although in some cases the payment of a financial contribution will be
acceptable. In relation to large developments phased payments may be
acceptable and will be paid at appropriate points in the construction
programme.
3.4.1 Transport Infrastructure Works
Prior to first occupation of the developmentlfirst day of tradinghhe
Commencement Date(delete as appropriate) the Proprietors will carry
out and complete the Transport Improvement Works to the satisfaction
of the Head of Planning
3.4.2 City Car Club Contribution
The Proprietorsshall pay the City Car Club Contribution to the Council,
which sum shall be applied by the Council towards the Edinburgh City
Car Club to fund the provision of a City Car Club vehicle to be located
within the vicinity of the Development and associated costs.
The Contribution shall be payable in full prior to [first occupation of the
Developmentlthe Commencement Date] (delete as appropriate).
22
3.4.3 Road and Junction Improvements Contribution
(a)
The Proprietors shall prior to the Commencement Date pay to the
Council the Road and Junction Improvements Contribution to be
applied by the Council towards the upgrading of the (enter details)
Road/ (enter details) Road signalised junction.
3.4.4 Bus Stop Improvements
(a)
Prior to the Commencement Date the Proprietors shall pay the Bus
Stop Improvements Contribution to the Council, and the Council will
apply the contribution towards bus stop improvements and in
particular the part cost of a new bus shelter in the vicinity of the
Development .
3.4.5 Safer Routes to School
(a)
Prior to the Commencement Date The Proprietors shall pay the Safer
Routes to School Contribution to the Council, and the Council will
apply the contribution towards the Council’s Safer Routes to School
programme for improvements to cycling and walking routes to (enter
name) School/Acade my.
3.4.6 Vehicle and Pedestrian Movements
(a)
Upon the Commencement Date
the Proprietors shall pay to the
Council the Transport Contribution Indexed, from the last date of
signing of this Agreement which Contribution shall be applied by the
Council towards improvements to vehicular and pedestrian movements
at (enter location address), Edinburgh and the surrounding road
network.
23
3.4.7 Temporary TRO and TRO Provision
Prior to the Commencement Date, the Proprietors shall pay to the
Council the TRO Contribution, which Contribution shall be applied by
the Council towards the promotion of a Traffic Regulation Order for the
purpose of [introducing loading and waiting restrictiondthe redetermination of a road/the installation of a traffic management system]
(delete as appropriate) on/at (delete as appropriate) (enter location
address), Edinburgh; or
Prior to the Commencement Date, the Proprietors shall pay to the
Council the Temporary TRO Contribution, which Contribution shall be
applied by the Council towards the promotion of a Temporary Traffic
Regulation Order for the purpose of [introducing loading and waiting
restrictiondthe re-determination of a roadthe installation of a traffic
management system ](delete as appropriate) on a temporary basis
on/at (delete as appropriate) (enter location address), Edinburgh.
3.4.8 Standard Clause for Re-payment of Contributions
In the event of (One) the Planning Permission being refused, revoked or in any
way falling; or (Two) the Contribution not being utilised, or fully utilised, by the
Council within fivehen years of the Payment Date, then following a written
request from the Proprietors, the Contribution or the unused part thereof,
together with any interest that has accrued thereon, as appropriate, shall be
refunded to the Proprietors.
24
3.4.9 Travel Plans
[Within three months of commencement of demolition works in implementation
of the Development/Prior to use being taken up/Prior to first occupation of/Prior
to the Commencement Date] (delete as appropriate), the Developer shall
submit a draft Travel Plan in respect of the Agreement Subjects (“the Plan”) to
the Council for approval. The Council shall have a period of not exceeding six
months from its receipt of the Plan to approve or reject the same (with written
reasons therefore). In the event of the rejection of the Plan by the Council,
either party shall have the right to require that the matter is referred to an
arbiter in terms of Clause (enter number of arbitration clause).
Following
approval or determination of the Travel Plan, the Proprietors shall (or shall
procure that any person holding a lease of the Development or any part thereof
from time to time) shall (i) publicise the Travel Plan appropriately to the
satisfaction of the Council, acting reasonably; and (ii) implement the terms of
the Travel Plan within six months of [the first occupation of/the first use of the
development] (delete as appropriate).
25
Section 4 - General Clauses
4.1 DISCHARGE
(a)
If so requested in writing by the Proprietors, the Council agrees to
grant a partial or full Discharge of the Promietor’s obliqations (enter
here a reference to the clauses which contain the Proprietor’s
obliqations) under this Agreement on due Performance bv the
Proprietor of its obliqations hereunder. Further in the event of the
Planning Permission granted pursuant to this Agreement being
revoked or in any way falling these presents shall fall and be deemed
pro non scripto and the Council shall grant a Discharge of this
Agreement. The Proprietors shall be responsible for the Council’s
reasonable legal expenses and outlays properly incurred in the
negotiation, drafting, preparation, completion and registration of any
Discharge hereto.
4.2 VARIATION
(a)
Without prejudice to Clause (refer to Discharge clause) hereof in the
event of the parties hereto agreeing to a variation of the terms hereof
the Council shall grant a Discharge of this Agreement and the parties
shall contemporaneously enter into a fresh agreement in terms
identical to the terms of this Agreement subject only to any variations
as may be agreed between the parties hereto. The Proprietors shall be
responsible for the Council’s reasonable legal expenses and outlays
properly incurred in the negotiation, drafting, preparation, completion
and registration of any Discharge or variation hereto.
26
4.3 ASSIGNATION
(a)
The Proprietors shall not transfer or assign their rights and obligations
under this Agreement or dispose of their interests in the Agreement
Subjects prior to the recording of this Agreement in the Land Register
of Scotland.
4.4 ARBITRATION
(a)
Any dispute of any kind which may arise between the parties hereto
and their successors regarding this Agreement shall be referred to the
decision of an Arbiter to be mutually agreed by the parties and failing
agreement appointed by the Sheriff Principal of Lothian and the
Borders at Edinburgh on the application of any party and the decision
of such Arbiter, including any award of expenses, shall be final and
binding on the parties and failing such award the cost of any such
arbitration shall be borne equally by the parties.
4.5 ENFORCEABILITY
(a)
This Agreement is made pursuant to Section 75 of the 1997 Act and it
is agreed by the Council and the Proprietors that the obligations
undertaken by the Proprietors in this Agreement shall be enforceable
at the instance of the Council as planning and roads authority against
the Proprietors and persons deriving title to the Agreement Subjects or
any part thereof from the Proprietors.
27
4.6 REGISTRATION
(a)
The parties consent to registration hereof for preservation and
execution.
4.7 EXPENSES
(4
The Proprietors shall meet the Council’s reasonable legal expenses
and outlays properly incurred in the negotiation, drafting, preparation,
completion and registration of this Agreement, to include the provision
of two Extracts of the Agreement for the Council’s own use: IN
WITNESS WHEREOF
28
MINUTE OF AGREEMENT
under Section 75 of the Town and
Country Planning (Scotland) Act
1997
between
THE
CITY
COUNCIL
OF
EDINBURGH
and
Subjects:-
FAS: 1245
Alastair Maclean
Head of Legal and Administrative Services
Corporate Services
City of Edinburgh Council
Waverley Court 3: 1
4 East Market Street
Edinburgh
EH8 8BG
29
, Edinburgh
APPENDIX 2
Model Legal Agreement Consultation Response
and Consideration
Response Issue
Response Consideration
The definition of “Affordable Housing”
should incorporate all types of
affordable housing and all types
mentioned in the document should
have a definition.
Agreed and incorporated
Considered inappropriate to have two
standards to which housing is
designed (one for affordable housing
and one for market sector housing).
A common standard should be set
through the Building Regulations and
the definition of “Affordable Housing
Unit” should be amended in line with
this.
This is not a matter which can be
considered within this model
agreement at the present time, but is
a policy matter outwith its remit. It is
a model which can be altered as and
when necessary.
For the purposes of clarity “Mid Rent
Housing” rent levels should be
defined either in terms of Scottish
Government Guidance or other such
appropriate guidance in place at the
point of entering any agreement.
Agreed with the preference for “most
recent guidance” given this model
agreement is a template and this
would allow it to incorporate any
changes in the guidance.
Within “Shared Ownership” definitions Agreed and change incorporated.
the purchaser does pay rent for the
share retained by the RSL.
Affordable Housing general
Comment:- within the agreement
model there is a potential for the lack
of integration of the affordable
The model agreement in itself will not
secure the integration of the
affordable housing. This will be
considered prior to the determination
1
elements within an overall
development. Consideration should
be given to section 3.1 to ensure that
the affordable housing is fully
integrated within a development
proposal.
of the application by the Committee or
the Development Management
function. The model agreement
should make the process of agreeing
the first draft of the agreement much
quicker than was possible previously.
Agreeing the type of affordable
housing tenure prior to the
‘Commencement Date” (3.1.1(b)) is
too late in the process and may
preclude obtaining affordable units
through no grant funded options.
Establishing whether grant funding is
available should be made earlier in
the process so as other options can
be considered and accounted for in
developers appraisals. This is
particularly important in an
environment of reduced public
expenditure. Establishment of grant
availability should be undertaken prior
to lodgement of a planning
application .
Agreeing the Affordable Housing
tenures prior to the commencement
date is considered to be the earliest
meaningful trigger point within the
model agreement. Before that date
would in effect be prior to the
concluding of the agreement or prior
to the agreement taking effect. In
practice it is often agreed well before
this, which would mean that it has
been agreed prior to the
commencement date.
Consideration of public subsidy /
funding is not a matter for the model
agreement.
The term Registered Social Landlord
should be amended to read
“Registered Social Landlord or their
subsidiary” as RSL’s require to
undertake mid market rent and
shared equity through a subsidiary
company.
Agreed and alteration made
The methodology for calculating the
Affordable Housing Commuted Sum
should be included in section 3.1 2.
The Commuted Sum is reviewed
annually so should not be included in
the template as each case will be
different. However, the overall sum
should be added on a case by case
basis.
The draft model agreement refers to
the use of the commuted sum within
10 years, whereas CEC policy
guidance states the Council should
be confident the commuted sum can
be spent within 5 years. The time
The Affordable housing Policy
Guidance is as it says a guidance
document. It is as pointed out stating
that the Council is confident that the
sum will be used within 5 years. This
does not mean that it can guarantee
2
scales should be the same.
the use within this period. A legal
agreement will be setting out a
definite period of use. Consideration
is therefore to be given to revising the
guidance to 10 years so that the
timescales will be the same. There
will therefore be no change to the
model agreement.
The affordable Housing clause (3.1.2)
should make clear that commuted
sums can only be spent on providing
affordable homes within the same
area of the city as per CEC Affordable
Housing Policy Guidance.
Guidance on what is the nearest
available applicable site has changed
(Committee Report of 25/02/2010 for
Commuted Sums and 06/08/2009 for
offsite provision). These matters
would be considered individually
during the planning application
process. The eventual requirement
would then be set out in the
concluded agreement and cannot be
specifically set out in this model
agreement.
The affordable Housing clause (3.1.3)
should stipulate that offsite provision
should be made in the same area of
the city to ensure that balanced mixed
tenure communities are created.
The Guidance has been redefined in
report of 06/08/2009. It could change
again in the future and has not
therefore been included in this model
Agreement.
Non grant assisted affordable housing
units not mentioned in the model
agreement and greater guidance
should be provided by the Council on
the appropriate levels of discount
which should be stated in the
agreement.
The model agreement is provided as
a method of hopefully speeding up
the first draft of the eventual
agreement. It is not intended as an
additional guidance document. The
provision of unsubsidised affordable
housing can be discussed during the
consideration, consultation and
determination of the application, prior
to the conclusion of the agreement.
The requirement for properties to be
“affordable” in perpetuity should be
removed as it is believed to be a
blockage to developers in terms of
delivering non-grant aided affordable
housing through an RSL. Restricting
title could “trap” purchasers in a
These are matters of policy to be
considered separately from the
present model agreement. However,
keeping these units affordable in
perpetuity is the justification for that
policy. Whether or not anyone should
be advised to purchase a discounted
3
discounted sale house.
sale house or whether this means of
affordable housing provision is
appropriate is not a matter for this
model agreement.
Indexation of the Education
contribution to the date of payment.
Agreed with revision completed.
Omission of 1 bedroom flats from the
calculation of any Education
contribution calculation and from any
Safer Routes to School contribution.
They are already omitted from the
Education contribution calculation and
in effect from the Safer Routes to
School consideration, where a more
appropriate contribution would be
considered within the consultation for
the planning application. No revision
is required to the model agreement.
Payment of a City Car Club
contribution should be at first
occupation and not at the
commencement date as there will be
no residents requiring them at the
commencement date.
The option to use the commencement
date trigger point should be retained
as setting up the city car club
provisions can take some time and
presumably the first occupiers would
prefer to see them in place from the
date they move in. The requirement
for the contribution may have been
triggered because of the parking
provisions within the application
proposal.
The trigger points for the bus stop
improvements and the safer routes to
school contributions to become due
should be set out in the model
agreement. It is suggested they
should be “prior to the
commencement date”.
Agreed and revision completed.
Request that the Council consider
exempting RSL’s from all financial
contributions within the model
agreement. These contributions are
not grant eligible and would require
private borrowing on the basis of the
rental stream from the properties and
rents charged cannot be raised to
The Council cannot be seen to be
giving RSL’s a competitive advantage
in the market place. The payment
trigger point within the concluded
agreement can be set to reflect the
necessary borrowing and the
question of development viability can
be discussed within the application
cover these costs. These costs could
preclude an RSL from developing
sites.
considerations before reaching the
section 75 stage. It is not therefore
relevant to this model agreement. It
should be reflected that the issuing of
the planning permission following the
conclusion of the agreement will be
granting a financial benefit to the
developer (the RSL in this instance)
in terms of an uplift in the value of the
land.
The term “in the vicinity” should be
more clearly defined and in so doing
would make the section 75
negotiation process more efficient.
What is in the vicinity will vary from
case to case and further defining it in
the model agreement could in fact
have the opposite effect of prolonging
the negotiations. What is meant by
this phrase could be agreed or
considered during the application
process and then passed on in the
instructions to conclude the
agreement.
Developers do not have information
as to when payments are received
and therefore the model agreement
should require the Council to make
refunds rather than the developer
having to raise notice to the Council.
If the developer is the party who has
paid the contribution, they will have a
record of when they paid it. A section
75 has to be registered and in so
doing it ties the agreement to the
land. Any subsequent purchaser will
be aware of the agreement and will
enquire either from the seller or the
Council whether any particular
contribution has been paid and when.
They to will then know when the
prescribed timescale for the use is to
lapse and trigger any repayment
should they wish to claim it.
~~
Agreed and revision made
accordingly to the introduction.
Within the introduction reference is
made to the use of Section 69
Agreements. Use of these
agreements should be regardless to
the size of developments and is most
effective where the developer is
willing to make payments prior to the
release of the planning permission.
5
A question was raised over the
necessity for the Council’s practice to
seek a Solicitors guarantee as to the
developer’s title prior to the
agreement being recorded and
registered.
This is not a matter specifically
relating to the model agreement.
However, guarantees are required
regarding the developer’s title and the
obligation not to withdraw the
application for registration, which can
be done at any time up to the
registration. This is significant as the
planning permission is not issued
unless and until the agreement is
concluded. There must therefore be
some guarantee against this
requirement being circumvented .
A comment was made that it would
be useful for the model agreement to
specify a maximum target number of
days between the Council’s receipt of
the concluded agreement, or of
evidence of it’s recording or
registration, and the issuing of the
planning permission.
Procedures are in place for the
planning permission to be released as
soon as possible following the receipt
of such evidence of recording of the
agreement for registration. It is not
therefore considered necessary for
such a target to be included within the
model agreement.
It has been the Council’s long
Comment was made about the
necessity for and/or the amount of the standing procedure to recoup their
reasonable expenses in concluding
legal expenses and outlays to be
both section 69 and 75 agreements.
recovered by the Council for
The model agreement reflects this
concluding an agreement under
position and to that extent sets out
clause 4.7.
what is expected to be included with
regard to this matter from the outset.
In terms of the overall cost of any
proposed development, these
expenses are miniscule. It should be
reflected that the issuing of the
planning permission following the
conclusion of the agreement will be
granting a financial benefit to the
developer in terms of an uplift in the
value of the land.
All proposed tram works have not yet
commenced although obviously some
parts have started. For the present
the terms of this clause should remain
unaltered.
Clause 3.l(a) is obsolete as the tram
works have commenced.
6
Where a development is 100% RSL
owned this should obviate the
requirement for section 75 control of
affordable housing provision.
The control still needs to be in place
should the site be sold on or if the
RSL should go out of business. No
revision has therefore been made to
the model agreement.
It would be helpful if additional
clauses were included to cover the
Council’s likely requirements where
the affordable provision is to be made
by a non grant funded route and
where an RSL is not involved.
The clauses in the model agreement
would accommodate an unsubsidised
affordable housing agreement, with
clauses being populated in detail
when the time comes to produce the
first draft.
The definition of “Completion of
Construction” required revision in line
with current legislation and practice.
Agreed and revision has been
completed.
Questions were raised over the
wording of clauses 3.1 .l(d), (e) and
(9) and what actions were meant to
be undertaken by them.
Clause (d) refers to the various
contractual methods by which the
affordable housing can be provided.
Clause (e) refers specifically to the
transfer of the land on which the
affordable housing is to be built. In
practice the developer is encouraged
to engage with an RSL during the
planning application consideration
and in most cases it is the RSL who
will carry out the negotiations with the
developer with regard to these two
clauses. Clause (9) is the backstop
which says if all else fails then CEC
(and not a third party) is allowed to
step in and take ownership of the
land.
It was considered inappropriate to
include specific trigger figures in
clauses 3.1 1 (d) and (e) as these
should be left for negotiation between
the Council and the developer on a
case by case basis.
These figures reflect experience to
date as acceptable trigger points for
all parties. They are (in the context of
the model agreement) starting points
for negotiation, but at the same time
not figures plucked from thin air.
To comply with PAN 74 the transfer of A Local Plan Reporter in 2009
summed up the current transfer
“Affordable Housing Subjects” and
7
“Offsite Affordable Subjects” should
be changed from no consideration to
their value for affordable housing
purposes as determined by the
District Valuer.
arrangement as follows: In Edinburgh,
by convention, affordable housing
land has a nil value. No revision has
been made to the model agreement.
Recommendationthat “Discount Low
Cost Sale” and “housing without
subsidy” should be suitably referred
to within the model agreement.
Agreed and as suggested these have
been referred to in the definition of
“Affordable Housing Unit”.
Recommendationthat the words “duly Agreed and alteration completed.
executed” should be removed from
clause 3.1.2 (b).
Agreed and alteration completed.
Comment was made concerning the
legal drafting of clauses 3.1.3 (b) and
(c)
Standard clause regarding repayment Agreed and alteration completed.
of transport contributions should
apply to all contributions.
The affordable housing commuted
sum should only be paid where it is
agreed as an alternative to on site
provision.
The model agreement includes the
possibility of an affordable housing
commuted sum should such a
requirement result from the planning
application consideration and is there
to aid initial drafting.
Off-site (affordable housing) provision
needs to be defined.
A definition has been included.
No mention is made of pre application
discussions and what legal form does
the agreement between the Council
and developers take?
Pre application discussions take
place prior to a planning application
being made and before any decision
to require a section 75 agreement is
made. What is to be included in the
agreement document is a decision
resulting from the pre-application and
application process. The model
agreement does not therefore need to
refer to the pre-application
8
discussions specifically. The
eventual section 75 agreement is the
legal form of agreement between the
Council and the developer.
The quality of the land to be used for
affordable housing and the housing
itself needs to be emphasized.
The standard to which the homes are
to be built is set out in the description
of “Affordable Housing Unit”. The
land on which the units are to be built
has to be suitable for purpose as set
out in the description of “Affordable
Housing Subjects Site”. Obtaining a
suitable quality of site and design is a
matter for the preceding application
and consultation process.
In clause 3.1 .I(f) what is required by
‘reasonable endeavours’ may need to
The word reasonable in these
circumstances has legal ramifications.
Due to the case law on this subject a
definition would be complicated,
probably lengthy and could tend to
make the document non user friendly.
It could also result in lengthy
negotiations between respective
lawyers over an agreed terminology,
all of which is contrary to the
intentions behind the model
agreement.
The clauses 3.1 . I (d) to (9) are a
recipe for developers to use ‘delaying
tactics’ in delivering affordable
housing.
The agreement clauses are a back-up
to earlier discussion, which are
encouraged during the application
consultations and consideration.
They are designed to ensure delivery.
Clauses 3.1 . I (d) and (f) are slightly
confusing and contradictory.
There are two trigger points. After the
first has been passed the proprietor
or developer has to show to the
Council that they have undertaken
reasonable endeavours to have
complied with clause 3.1 .I(b). These
endeavours need to be continued
until the second trigger point at which
point they will need to have complied
with clause (e) and if they have not
then the back stop of clause 3.1 .l(g)
9
becomes relevant.
The Council’s commitment to
ensuring provision of sufficient
affordable housing is eroded if (9)
comes into play.
During the planning application
consideration and under clause 3.1.I
(d) there is an opportunity for an
approved RSL to find a deliverable
solution. Sub-clause (9) ensures that
the 25% affordable housing provision
land is delivered, just that the land
would firstly be delivered to the
CounciI.
The term ‘for no consideration’ needs
to be defined.
It is considered that the phrase needs
no further clarification.
The terms ‘valid marketable title’ and
‘warrandice’ need to be defined.
These are commonly used legal
terms, the definitions of which would
lengthen and could further complicate
this model agreement, contrary to the
intentions of this document.
Definitions have not therefore been
provided for this reason.
Clause 3.1.I(i) is confusing and as
another possible get out clause for
the developer unacceptable.
If sub-clause (9) is utilised it is the
land that is delivered (at no cost to
the Council) and not the completed
units. As this clause is there to
ensure delivery of the required
affordable housing units it is not
unreasonable for the developer or
proprietor to require a condition of the
transfer to be that the land is then
used for the purpose of delivering
these required units.
What is the significance of the ten
year term within clauses 3.1.2.
It is considered a reasonable period
for the use of the sum given what is
involved.
The need for clauses 3.1.3 for off-site
affordable housing is questionable if
not unacceptable.
The model agreement does not
provide permission to consider off-site
or commuted sum provisions. This is
done by Committee or under
delegated powers to the development
10
management function following
consultation on and consideration of
the planning application. This model
agreement merely sets out a
framework in which the detail can be
added (by either party) in creating a
first draft of a section 75 agreement
that would then be subject to mutual
agreement, but without which the
planning permission would not be
issued.
The RSL should be in place before
the development commences.
The RSL is often in place before the
commencement of development and
the developer is encouraged to do
this during the application and
consultation process and prior to any
agreement taking effect.
There should be a diagram showing
the various parties sequence, timing
and options within the process.
Such a diagram would be different in
each case and it has been decided
that this suggestion should not be
incorporated in the model agreement.
The term market housing should be
marketable housing.
A new definition “Open Market
Housing” has been included.
A clause should be added stating that
the landowner shall cease to have
any liability under the section 75 once
their ownership has ceased.
The preamble does refer to
respective successors in title who will
on purchase be aware of the
remaining liabilities under the
agreement (and who would be
approached when a compliance
trigger is reached). Clauses can be
added on a case by case basis
should further clarification on limiting
liability be considered necessary,
particularly following the
implementation of legislature
changes.
There is no reference in the model
agreement to the financial viability of
3 development and therefore question
whether it accords with the intentions
The question of financial liability (and
therefore compliance with Circular
1/10) is considered within the
planning application consultation and
11
of Circular 1 /I 0.
consideration process. It is a
decision following this process that is
then forwarded into the conclusion of
the eventual section 75 agreement. It
is not a matter which therefore has to
be referred to in this model
agreement.
Reference has been included in the
The initiation of the draft model
agreement predates Circular 1/2010. introduction to the model agreement.
Reference should be made in the
model agreement as to how it
complies with this circular.
The model agreement should explain
how it will be reviewed to reflect any
new guidelines relating to developer
contributions .
The introduction does state that the
model agreement is not exhaustive
and that it does not cover all the
circumstances in which contributions
will be sought. For the present and
for the purposes of this document, it
is considered more useful to identify
the standard provisions in most
instances. The point that this might
need future review is noted.
Flexibility for staged payments should
be extended to all scales of
development and this should be
considered on a case by case basis.
The model agreement does not
preclude this degree of flexibility and
is open for negotiation on a case by
case basis, which is in fact standard
practice.
The tram contribution definition
should make reference to how it is to
be spent.
This is in fact included in the clause
3.3.1(a).
Within the “Transport Improvement
Works” definition and in clause 3.4.4
“Bus Stop Improvements” the term in
the vicinity of the development should
be given a more precise meaning
within concluded agreements on a
case by case basis.
This is a matter for discussion within
the planning application process after
which any decision can be
incorporated within the concluded
agreement. It is not a matter for
alteration to this model agreement.
It is suggested that the first paragraph The suggested revision has not been
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in clauses 3.3 and 3.4 should be
amended to make it sufficiently
flexible in all scenarios.
incorporated as it in effect removes
the possibility of a payment before the
construction programme becomes
“ 0perat ionaI” . However , the model
agreement is an intended first draft,
which can be revised on a case by
case basis.
The tram contribution clause should
not include a provision that it can be
used for alternative public transport
improvements serving the
development should the Council not
proceed with the Tram Project.
The alternative use provisions have
been accepted in a number of
existing agreements, in which they
have been considered “reasonable”.
The works to all parts of the proposed
tram networks have not commenced.
The need for the contribution is as a
matter of fact determined at the time
of the application. Should
circumstances change following the
conclusion to any agreement there is
a provision, included in the model
agreement (clause 4.2), for a revision
to be made which is jointly agreed by
all parties.
The “Transport Infrastructure Works
Clause” should be amended to
recognise other trigger points for
undertaking the works for major
phased developments.
The model agreement refers to a
preferred option, but again is open for
revision on a case by case basis.
The “Road/Junction improvements
Clause” should include an
undertaking that the Council has a
specific timescale in which to
complete the works.
The contribution will be proportional
to the development proposal to which
it relates. This will not necessarily
meet the total cost of the works,
which in turn could be reliant on
contribution(s) from other
development proposals to which it
also relates. The Council cannot
therefore be tied to a specific time
scale and legal commitment to carry
out works for which they may not
have funding at the time. However,
there will be a timescale by which the
contribution is to be used, after which
a claim can be made for the
contribution to be refunded.
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Amend the ‘Vehicle and Pedestrian
Movements” clause to specify the
intended improvements.
Within this clause (3.4.6) there is a
set of brackets allowing an address to
be inserted. On a case by case basis
it could be agreed to use this to
further specify the improvements. No
further adjustment has been made to
the model agreement.
Definitions should be included for
“Planning Application” and “Planning
Permission”
They are included respectively under
definitions entitled “the application”
and “the permission”.
The model agreement should include
a clause that it will not take effect until
the planning permission is
implemented.
An amendment to the model
agreement in these terms has not
been considered appropriate. It could
in effect restrict optional trigger points
for the payment of contributions.
Reference to any relevant
supplementary guidance should be
made in the text of the agreement.
An amendment to the model
agreement in these terms has not
been considered necessary.
I
The agreement should indicate how
contributions are to be used and
refunded if applicable.
The refunding provisions are found in
clause 3.4.8. The model agreement
does refer to how the contributions
are to be used and is in any case
open to revision on a case by case
basis if further clarification is agreed.
The requirement to pay the Council’s
legal expenses is questioned with a
suggestion that there should be a
fixed ceiling to this.
An amendment to the model
agreement in these terms has not
been considered necessary. Specific
revisions can be agreed on a case by
case basis.
Terms for partial discharges should
be included.
Agreed and alteration completed.
A question was raised that the model
agreement makes reference to the
fact that the Council is (in addition to
the Planning Authority) the Roads
Following legal advice it has been
considered that reference to other
legislation would not raise concerns
as to whether the section 75
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Authority in terms of the Roads Act,
and whether by so doing the
agreement was being used for a
“planning purpose” or for some other
purpose. Further, whether in the
matter of enforceability, the Council in
its role as Roads Authority is entitled
to enforce the terms of the
agreement.
agreement is being used for planning
purposes. The contribution or works
required have been considered to
have a planning purpose within the
consideration of the planning
application. The agreement is a
contract between the Planning
Authority and the developer and on
the basis that the terms meet a
planning purpose and are reasonable
they should be enforceable.
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