THIS DEED
is made the
day of
2010
B E T W E E N:
(1)
Dartmoor National Park Authority of Parke, Bovey Tracey, Newton
Abbot, Devon TQ13 9JQ (“the Authority”)
(2)
(“the Owner”)
(3)
(“the Mortgagee”)
WHEREAS:
1.
The Authority is the Local Planning Authority for the purposes of the 1990 Act
for the area that includes the Land and by whom the Obligations imposed by
this Agreement shall be enforceable.
2.
The Owner is the registered proprietor of the freehold interest in the Land
with Title Absolute under Title Number DN NUMBER subject only to a charge
in favour of the Mortgagee
3.
The Mortgagee is mortgagee of the Land under a Legal Charge made on
DATE between the Mortgagee and the Owner
4.
The Authority [acting by its officers under delegated authority and] in exercise
of its powers under the 1990 Act has resolved to grant Planning Permission
for the Development, subject to satisfactory completion of this Deed which –
(a)
(b)
(c)
THIS DEED NOW PROVIDES AS FOLLOWS:
1
General Definitions
In this Deed the following definitions shall apply:
“the Act”
the Town and Country Planning Act 1990 (as
amended)
“the Application”
the application for full planning permission
registered by the Authority on DATE under
reference REF to develop the Land by
DESCRIPTION
“Commencement of
Development”
the carrying out of a material operation
on the Land within the meaning of Section 56(4) of
the Act pursuant to the Planning Permission
(excepting archaeological investigation, demolition,
site clearance, site surveys and preparation,
diversion and laying of services, erection of
boundary fences and hoardings and the
construction of temporary access and highway
works) and “commence development” and all such
similar phrases shall be construed accordingly
“the Development”
the development of the Land in accordance with the
Application and the Planning Permission
“the Land”
land at ADDRESS shown edged red on the Plan,
which land is registered at the Land Registry under
title number NUMBER
“the Obligations”
the planning obligations described in the Schedules
to this Deed
“the Planning Permission”
such conditional planning permission as may be
granted by the Authority in respect of the
Application
“the Plan”
the plan attached to this Deed
2
Interpretation
In this Deed, except where the context clearly requires otherwise:
2.1
The singular includes the plural, the masculine includes the feminine and vice
versa;
2.2
References to clauses and schedules are to the clauses in and schedules to
this Deed;
2.3
Any reference to any party having an interest in the Land shall include any
successor in title to that party to the Land or any part of it or any assign
deriving title from or under him;
2.4
Any reference to any party having a statutory function referred to in this Deed
shall include any successor to that statutory function;
2.5
Reference to any Act or Statutory Instrument shall include any subsequent
amendment or re-enactment of it;
2.6
Where an Obligation applies to more than one person, their liabilities shall be
joint and several;
3
The Land shall be subject to the Obligations
3.1
Subject to clause 4, the Owner covenants to observe and perform the
Obligations which shall bind the Land (and every part of it) as planning
obligations under Section 106 of the Act.
3.2
The Obligations shall take effect upon the Commencement of Development,
unless and except as otherwise provided in this Deed.
3.3
The Obligations shall be enforceable by the Authority.
3.4
Save by any operation of clauses 2.3 or 2.4, none of the provisions of this
Agreement are intended to or will operate to confer any benefit pursuant to
the Contracts (Rights of Third Parties) Act 1999 on a person who is not
named as a party to this Agreement.
3.5
The Obligations are Local Land Charges and shall be registered as such.
3.6
No person shall be liable for any breach of an Obligation occurring after he
has parted with all interest in the Land.
3.7
The Owner hereby gives his irrevocable consent for the Authority to apply to
the Chief Land Registrar for the entry of a Restriction embodying the
following terms on the Proprietorship Register against the Land:
“No disposition of the registered estate (other than a charge) by the
proprietor of the registered estate or by the proprietor of any registered
charge, not being a charge registered before entry of this restriction is to
be registered without a certificate signed on behalf of the Dartmoor
National Park Authority of Parke, Bovey Tracey, Devon, TQ13 9JQ by its
Chief Executive (National Park Officer), Solicitor or other duly authorised
officer that the provisions of the Deed pursuant to Section 106 of the
Town and Country Planning Act 1990 dated ............... have been
complied with"
4
Miscellaneous Provisions
4.1
Nothing in this Deed is or amounts to or shall be construed as a planning
permission within the meaning of Section 336 of the Act.
4.2
If the Planning Permission should expire before the Commencement of
Development or shall at any time be revoked, this Deed shall forthwith
determine and cease to have effect.
4.3
Nothing in this Deed shall prohibit or limit the right to develop any part of the
Land in accordance with a planning permission (other than the Planning
Permission) granted (whether or not on appeal) after the date of this
Agreement.
4.4
The Authority shall, upon receipt of the written request of the Owner, at any
time after the obligations of the Owner under this Agreement have been
fulfilled, issue written confirmation to that effect.
4.5
The County Court in whose district the Land is situated shall have full
jurisdiction to hear and determine proceedings arising from or relating to this
Deed or for the enforcement of all or any of its terms.
4.6
Upon the completion of this Deed, the Owner shall pay the reasonable legal
fees of the Authority in respect of the preparation, execution and completion
of this Deed.
4.7
Within two weeks of receiving a written request from the Authority, the Owner
shall supply all such information as the Authority may reasonably require to
enable the Authority to monitor compliance with this Deed.
4.8
Save as lawfully permitted, nothing in this Deed shall prejudice or affect the
Authority’s rights, powers, duties and obligations in the exercise of its
functions as a National Park Authority and Local Planning Authority and the
rights, powers, duties and obligation of the Authority under all public and
private statutes, byelaws, orders and regulations may be as fully and
effectively exercised in relation to the Land as if this Deed had not been
executed by the Authority.
4.9
If any clause, schedule or paragraph of this Deed is found to be invalid or
unenforceable, such finding shall have no effect in relation to any other
clause, schedule or paragraph of this Deed.
SCHEDULE ONE
AFFORDABLE HOUSING
Definitions of Words and Phrases used in this Schedule
In this Schedule, the following definitions shall apply:
“the 2008 Act”
The Housing and Regeneration Act 2008.
“Affordable Dwelling”
The dwelling to be erected pursuant to the Planning
Permission for occupation as affordable housing for a
qualifying person in housing need, as shown edged
red on plan “B” attached.
“Affordable Housing
Criteria”
The criteria which a person must fulfil to the
satisfaction of the Authority or its nominee to become
a Qualifying Person, as set out in full in Schedule
Three.
“Affordable Rent”
means a monthly or weekly rent payable for an
Affordable Dwelling that –
(a) when let by a Registered Provider does not exceed
the relevant target rent established by applying
the criteria set by the TSA for Registered
Providers operating in Dartmoor National Park;
and
(b) in all other cases, does not exceed 75% of the
prevailing market rate for a property providing
equivalent accommodation within the locality
“Housing
Allocation Scheme”
means the housing allocation scheme in use by
the Local Housing Authority at the time that the
Affordable Dwelling is let in accordance with this
Schedule
“Local Housing
Authority”
[
“Qualifying Person”
a person who fulfils the Affordable Housing Criteria,
together with their spouse or partner, their children
and dependants.
] Council
“Registered Provider”
means a Registered Provider of Social Housing as
defined in section 80(2) of the 2008 Act
“TSA”
the Office for Tenants and Social Landlords,
otherwise known as the “Tenant Services Authority”,
established under Section 81 of the 2008 Act, or any
body to which the rights powers and obligations of
the Office of Tenants and Social Landlords may
devolve in future
The Owner’s Obligations
2
The Owner has covenanted with the Authority to perform the obligations set
out in this Schedule.
General obligations
3.1 To notify the Authority in writing of the date of Commencement of Development
within 28 days of such date.
3.2 To manage and deal with the Development, the Land and the Affordable
Dwelling at all times in accordance with the Obligations set out in this
Schedule.
3.3 In particular, to notify the Authority and the Local Housing Authority in writing
prior to:
(a) advertising or marketing the Affordable Dwelling for sale, auction, rent or
any change in occupation; or
(b) executing a new tenancy agreement or accepting a new occupier under a
tenancy agreement; or
(c) entering into any contract or agreement to sell, transfer or otherwise
dispose of the Affordable Dwelling;
Persons who may occupy the Affordable Dwelling on the Land
4
Subject to the following sub-paragraphs of this Schedule and Schedule Three:
4.1
Not to occupy or permit the Affordable Dwelling to be occupied by any
person except by a Qualifying Person for use as his/her principal or main
residence; and
4.2
not to use or let, or permit any person to use or let, the Affordable Dwelling
as a holiday home, second home, or short let holiday accommodation
Restrictions on Sale and Transfer
5.1 Not to sell, transfer, or otherwise dispose of the Affordable Dwelling except to a
Qualifying Person or for occupation by a Qualifying Person
5.2 No estate or interest in the Affordable Dwelling shall be created, assigned,
transferred or disposed of, unless prior to entering into any contract or other
legally binding agreement, the following criteria shall have first been satisfied:
(i)
the District Valuer shall be instructed by the Authority, at the Owner’s
sole expense, to produce an independent written valuation of the
Affordable Dwelling, expressly taking into account the occupancy
restriction applied to the Affordable Dwelling under this Deed and
prevailing market prices;
(ii)
all sales particulars produced in respect of the Affordable Dwelling shall
state fully and clearly the restrictions on occupancy and price applicable
to the Affordable Dwelling under this Deed and inform prospective
purchasers that these restrictions will be effective to bind all future
owners and occupiers;
(iii)
the price to be paid on any transfer or other disposal, taken together
with any monetary or other valuable consideration paid in connection
with the transfer or disposal shall not exceed an amount equal to 75% of
the valuation obtained in accordance with paragraph (i) above;
(iv)
prior to completion of the transfer or other disposal, the Owner’s
Solicitor shall certify in writing to the Authority that the price to be paid
on the transfer or other disposal of the Affordable Dwelling, taken
together with any monetary or other valuable consideration to be paid in
connection with the transfer or disposal, does not exceed an amount
equal to 75% of the approved valuation obtained in accordance with
paragraph (i) above;
Disposal and dealings restricted
6
Not at any time to cause or permit any estate or interest in the Land to be
transferred or otherwise disposed of without securing that:
6.1
all persons acquiring an estate or interest concurrently enter into a
Deed of Covenant with the Authority, executed in the form of the
Deed specified in Schedule Two and provide the Authority with
duplicate copies of that Deed for execution by the Chief Executive
(National Park Officer);
6.2
in any initial or subsequent contract for the transfer or other disposal
of the Land a condition is included that all persons acquiring the
estate or interest will forthwith upon completion of the transfer or
disposition enter into a Deed of Covenant with the Authority, in the
form specified in Schedule Two;
Authority’s Covenants
7
The Authority covenants that:
7.1
within 28 days of receiving the Deed of Covenant pursuant to
paragraph 6.1 above it shall seal and complete both copies and return
one part to the New Owner thereunder PROVIDED ALWAYS that the
Authority reserves the right to decline to sign and complete the Deed
of Covenant where, in the opinion of the Authority, there is or has been
a failure to comply with the terms of this Agreement, such failure not
having been remedied in conformity with the true intent and meaning
of the same;
7.2
it shall give any consent required by the Land Registry to allow
registration of any proposed dealing with the Land provided that the
covenants contained within this Agreement have been performed.
Restrictions on tenancy and rent
8
The Affordable Dwelling shall not be let to any person, save 8.1 to a Qualifying Person; and
8.2 at an Affordable Rent; and
8.3 by way of an assured tenancy agreement, a starter tenancy agreement,
or such other form of tenancy agreement as may be approved from time
to time by the TSA or the Local Housing Authority
and for the avoidance of doubt the Affordable Dwelling shall not at any time
be used or advertised as rented accommodation other than as the occupier’s
principal or main residence, and in particular shall not be advertised or let as
short let holiday accommodation.
SCHEDULE TWO
DEED OF COVENANT
T H I S D E E D O F C O V E N A N T is made the … day of ..….. 20….
BETWEEN:
(1)
DARTMOOR NATIONAL PARK AUTHORITY of Parke, Bovey Tracey,
Newton Abbot, Devon TQ13 9JQ (“the Authority”); and
(2)
………………………………………………………… (“the New Owner”)
WHEREAS:
(i)
By a Deed pursuant to Section 106 of the Town and Country Planning Act
1990 dated the …… day of ……………………. 20…. (“the Agreement”) and
made between the Authority and …………………….. (“the Initial Owner”) in
relation to land at ……………………………………
…………………………….. ("the Land"), the Initial Owner covenanted to
observe the restrictions and perform the obligations contained within the
Agreement and more particularly defined in the Schedules to the Agreement.
(ii)
The Initial Owner further covenanted within the Agreement not to transfer or
dispose of any estate or interest in the Land without ensuring that all persons
acquiring that estate or interest concurrently enter into a Deed of Covenant
with the Authority in the terms of this Deed of Covenant.
(iii)
For the purposes of this Deed of Covenant unless stated otherwise all words
shall have the same meaning as defined in the Agreement.
NOW THIS DEED PROVIDES AS FOLLOWS:
1
The New Owner covenants with the Authority in all respects to observe and
perform all covenants and other obligations contained in the Agreement
2
The New Owner further covenants with the Authority in all respects to observe
and perform all covenants and other obligations contained in this Deed of
Covenant.
3
The New Owner hereby gives his irrevocable consent for the Authority to apply
to the Chief Land Registrar for the entry of a Restriction embodying the terms
of this Deed on the Proprietorship Register against the title to the Land in the
following form:
“No disposition of the registered estate (other than a charge) by the proprietor
of the registered estate or by the proprietor of any registered charge, not being
a charge registered before entry of this restriction, is to be registered without a
certificate signed on behalf of the Dartmoor National Park Authority of Parke,
Bovey Tracey, Devon, TQ13 9JQ by its Chief Executive (National Park
Officer), Solicitor or other duly authorised officer that the provisions of the
Deed pursuant to Section 106 of the Town and Country Planning Act 1990
dated .................................. have been complied with.”
I N W I T N E S S of which the parties hereto have executed this document as a
Deed the day and year first before written.
[insert attestations of the Authority and the New Owner ]
SCHEDULE THREE
AFFORDABLE HOUSING CRITERIA
1. Definitions
In this Schedule the definitions in Schedule One shall apply, together with following
definition:
“the Initial Period”
means the period of 13 (thirteen) weeks starting from
whichever date is later of:
(i)
the date the Affordable Dwelling is substantially
completed; or
(ii)
the date the Affordable Dwelling is marketed for sale;
or
(iii)
the date the Affordable Dwelling is advertised for rent
2. Qualifying Person
A person shall be a Qualifying Person for the purposes of this Schedule and this
Agreement if he/she is:
(1)
a person in need of suitable permanent housing; and
(2)
is unable to afford to pay market rents or the open market price for
reasonably suitable permanent housing; and
(3)
without any preference or priority order, is a person who –
(i)
currently lives in a parish wholly or partly within the National Park and
having done so throughout the previous five years; or
(ii)
has lived previously in a parish wholly or partly within the National Park
for a period of five years, but has moved away at some time in the past
three years; or
(iii)
has a strong local connection with a parish wholly or partly within the
National Park by reason of, for example, upbringing or employment.
3. No Qualifying Person can be Found (sale)
Upon the expiry of the Initial Period, if no Qualifying Person has made an offer for
the purchase of the Affordable Dwelling (subject to contract) at the full asking price,
the requirement for the Affordable Dwelling to be occupied by a Qualifying Person
shall not apply to that disposal and any person to whom the Owner shall dispose of
the Affordable Dwelling shall for the purposes of this Agreement be conclusively
presumed to be a Qualifying Person:
3.1
for the purposes of that disposal; and
3.2
for the duration of that person’s ownership of the Affordable Dwelling
4. No Qualifying Person can be Found (rent)
Upon the expiry of the Initial Period, if no Qualifying Person has signed a tenancy
agreement, the requirement for the Affordable Dwelling to be occupied by a
Qualifying Person shall not apply on that occasion and any person to whom the
Owner shall rent the Affordable Dwelling shall for the purposes of this Agreement be
conclusively presumed to be a Qualifying Person:
4.1
for the purposes of that tenancy; and
4.2
for the duration of that person’s occupation of the Affordable Dwelling
IN WITNESS
of which the parties hereto have executed this Deed the
day and year first before written
The Common Seal of
)
DARTMOOR NATIONAL PARK
)
AUTHORITY was affixed
)
in execution as a Deed
)
in the presence of :
)
………………………………………
Chief Executive (National Park Officer)
Document no.
SIGNED and DELIVERED
)
as a DEED by the said
)
)
………………………………………….
in the presence of:
signature of witness:
name of witness:
address of witness:
SIGNED and DELIVERED
)
as a DEED by the said
)
)
in the presence of:
signature of witness:
name of witness:
address of witness:
………………………………………….