L195_are_file_management_task_04 1 © The University of Law Limited 2016-2017 ADVANCED REAL ESTATE LAW AND PRACTICE WORKSHOP 4 File Management Task You are a trainee in Gilbraith Saunders LLP and are currently nearing the end of your Real Estate seat. Your supervisor, Harry Wright, has asked you to write a series of handover notes on all of the matters upon which you have been working. These notes will assist your successor, fellow trainee Jenna Robbins, to get up to speed quickly on the matters she will be taking over from you. It is important that the handover notes: 1.Give a brief background to the matter (i.e. who the client is, what the property is and why they are buying it); 2.Clearly state how far the matter has progressed; and 3.Emphasise any issues that need dealing with imminently, with as full an explanation as you can give, in order to help Jenna get to work quickly and efficiently. One of the matters with which you have been heavily involved is the proposed acquisition of the British Ordnance factory site in Nottingham (“the Site”) by Phoenix Developments Limited (“Phoenix”). Attached to this File Management Task, you will find a full copy of the Section 106 Agreement, (“the Section 106 Agreement”), part of which you reviewed during Workshop 4 and which, earlier today, you amended on the advice of an associate in the Planning Department. Write a handover note to Jenna Robbins in relation to the Site, covering the three numbered points outlined above. You can assume all of the following for this purpose:  The parties are at the stage of the transaction at the end of workshop 4;  Following on from your review of the draft planning permission (in Workshop 4), Phoenix is currently negotiating with the Council for the removal of the conditions which you identified as problematic. You await further instructions once the client has concluded its negotiations, so there is nothing more to do on this for now;  The client does not need any further advice or assistance in relation to acquiring Kings Meadow;L195_are_file_management_task_04 2 © The University of Law Limited 2016-2017  The most pressing issue for the Site is negotiating agreement of the terms of the Section 106 agreement, so you can focus on an explanation of what section 106 agreements are, why they are used and an outline of the law and statutory guidance in relation to them, together with an explanation of all the amendments which have now been made to the Section 106 Agreement, and why they have all been made; and  You do not need to take Jenna through the planning application or appeals processes under the Agreement for Sale, and you do not need to deal with the Community Infrastructure Levy. Your handover note should take the form of a memorandum. If you choose to sign the memorandum, you should use the name ‘Trainee Solicitor’. Please submit your answer to the File Management Task in accordance with the Instructions provided at the start of your Electives. L195_are_file_management_task_04 3 © The University of Law Limited 2016-2017 Planning Obligation by Deed of Agreement under Section 106 of the Town and Country Planning Act 1990 relating to the development of the former British Ordnance Factory at Queen’s Drive Nottingham Dated: Nottingham City Council (1) Nottingham County Council (2) British Ordnance Systems Limited (3) Phoenix Developments Limited (4) DISCLAIMER This document is subject to copyright. It should not be copied, reproduced, distributed or passed to any other person in whole or in part. This document is for teaching and learning purposes only. It does not constitute the provision of any advice by the University of Law. It does not purport to be comprehensive or to contain all the information that may be needed for a particular transaction or matter. Furthermore it may contain deliberate errors and/or omissions. It is not a substitute for legal or other advice and must not be used as a precedent in any circumstances. L195_are_file_management_task_04 4 © The University of Law Limited 2016-2017 DATE: ………………………………………………………………………………….. PARTIES (1) Nottingham City Council of Loxley House, Station Street, Nottingham NG2 3NG (“Council”) (2) Nottingham County Council of County Hall West Bridgford Nottingham NG2 7QP (“County Council”) (3) British Ordnance Systems Limited (company number 1138229) of Leamington House BOS Centre Leamington Spa Warwickshire CV32 4LY (“Owner”) (3) Phoenix Developments Limited (company number 311966) whose registered office is at Phoenix House, Dorridge Business Park, Solihull, West Midlands B92 7HY (“Developer”) INTRODUCTION 1 The Council is the local planning authority for the purposes of the Act for the area in which the Site is situated. 2 The County Council is the local highway authority for the area in which the Site is situated. 3 The Owner is the freehold owner of the Site. 4 The Developer has entered into an agreement with the Owner to purchase the Site conditional upon the grant of the Planning Permission and upon completion of the purchase proposes to carry out the Development. 5 The Developer has submitted the Application to the Council and the parties have agreed to enter into this Deed in order to secure the planning obligations contained in this Deed. 6 The Council resolved on [………………………………....] to grant the Planning Permission subject to the prior completion of this Deed. NOW IT IS HEREBY AGREED AS FOLLOWS: 1 DEFINITIONS For the purposes of this Deed the following expressions shall have the following meanings: “Act” the Town and Country Planning Act 1990 “Amenity Contribution” means the sum of five hundred thousand pounds (£500,000) to be applied by the L195_are_file_management_task_04 5 © The University of Law Limited 2016-2017 Council to such purpose of benefit to the inhabitants of the area of the Council as the General Purposes Committee of the Council shall determine “Application” the application for full planning permission dated [XXXX] submitted to the Council for the Development and allocated reference number 01674/PHOENIX “Commencement of the date on which any material operation (as Development” 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. “Development” the Development of the Site as a business and retail park together with highway, car parking and landscape infrastructure as set out in the Application “Highways Agreement” an agreement for the construction of a roundabout at the entrance to the Site on Queen’s Drive and of access roads within the Site substantially in the form set out in the Sixth Schedule with such amendments as may be agreed between the parties thereto “Index” All Items Index of Retail Prices issued by the Office for National Statistics “Interest” interest at 7 per cent above the base lending rate of Barclays Bank Plc from time to time. “Plan” the plan attached to this Deed [Note to students: this has not been reproduced] “Planning Permission” the full planning permission subject to conditions to be granted by the Council L195_are_file_management_task_04 6 © The University of Law Limited 2016-2017 pursuant to the Application as set out in the Second Schedule. “Public Transport Contribution” means the contribution of eight hundred and fifty thousand pounds (£850,000) to be paid to the Council to use for the purposes of providing, expanding or improving public transport facilities within 3 kilometres of the Site. “Site” the land against which this Deed may be enforced as shown edged red on the Plan. 2 CONSTRUCTION OF THIS DEED 2.1 Where in this Deed reference is made to any clause, paragraph or schedule or recital such reference (unless the context otherwise requires) is a reference to a clause, paragraph or schedule or recital in this Deed. 2.2 Words importing the singular meaning where the context so admits include the plural meaning and vice versa. 2.3 Words of the masculine gender include the feminine and neuter genders and words denoting actual persons include companies, corporations and firms and all such words shall be construed interchangeable in that manner. 2.4 Wherever there is more than one person named as a party and where more than one party undertakes an obligation all their obligations can be enforced against all of them jointly and against each individually unless there is an express provision otherwise. 2.5 Any reference to an Act of Parliament shall include any modification, extension or re-enactment of that Act for the time being in force and shall include all instruments, orders, plans, regulations, permissions and directions for the time being made, issued or given under that Act or deriving validity from it. 2.6 References to any party to this Deed shall include the successors in title to that party and to any deriving title through or under that party and in the case of the Council and County Council the successors to their respective statutory functions. 2.7 The headings and contents list are for reference only and shall not affect construction. 3 LEGAL BASIS 3.1 This Deed is made pursuant to Section 106 of the Act. 3.2 The covenants, restrictions and requirements imposed upon the Owner under this Deed create planning obligations pursuant to Section 106 of the Act and are enforceable by the Council as local planning authority against the Owner. L195_are_file_management_task_04 7 © The University of Law Limited 2016-2017 4____ CONDITIONALITY This Deed is conditional upon: (i) the grant of Planning Permission; and (ii) the Commencement of Development save for the provisions of Clauses 8.1, 10, 14, 15 and 16 and any other relevant provisions which shall come into effect immediately upon completion of this Deed. 4 5 THE OWNER’S COVENANTS The Owner covenants with the Council as set out in the Third Schedule. 5 6 THE COUNCIL’S COVENANTS The Council covenants with the Owner as set out in the Fourth Schedule. 6 7 THE COUNTY COUNCIL’S COVENANTS The County Council covenants with the Owner as set out in the Fifth Schedule. 78 MISCELLANEOUS 78.1 On completion of this Deed the Owner shall pay the reasonable legal costs of the Council incurred in the negotiation, preparation and execution of this Deed. 8.2 No provisions of this Deed shall be enforceable under the Contracts (Rights of Third Parties) Act 1999. 8.3 This Deed shall be registrable as a local land charge by the Council. 8.4 Where the agreement, approval, consent or expression of satisfaction is required by the Owner from the Council or 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) the Council by the Head of Development and Building Control; (ii) the County Council by the County Director 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. L195_are_file_management_task_04 8 © The University of Law Limited 2016-2017 78.5 Following the performance and satisfaction of all the obligations contained in this Deed the Council shall forthwith effect the cancellation of all entries made in the Register of Local Land Charges in respect of this Deed. 78.6 Nothing in this Deed shall prohibit or limit the right to develop any part of the Site in accordance with a planning permission (other than the Planning Permission) granted (whether or not on appeal) after the date of this Deed. 8.7 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. 8.8 Neither the Owner nor the Developer shall be liable for any breach of any of the planning obligations or other provisions of this Deed after it shall have parted with its entire interest in the Site but without prejudice to liability for any subsisting breach arising prior to parting with such interest. 8.9 This Deed shall not be enforceable against owner-occupiers or tenants of dwellings constructed pursuant to the Planning Permission nor against those deriving title from them. 8 9 WAIVER No waiver (whether expressed or implied) by the Council (or the County Council or Owner) of any breach or default in performing or observing any of the covenants terms or conditions of this Deed shall constitute a continuing waiver and no such waiver shall prevent the Council (or the County Council or Owner) from enforcing any of the relevant terms or conditions or for acting upon any subsequent breach or default. 9 10 CHANGE IN OWNERSHIP The Owner agrees with the Council to give the Council immediate written notice of any change in ownership of any of its interests in the Site occurring before all the obligations under this Deed have been discharged such notice to give details of the transferee’s full name and registered office (if a company or usual address if not) together with the area of the Site or unit of occupation purchased by reference to a plan. 10 11 INDEXATION Any sum referred to in the Third Schedule shall be increased by an amount equivalent to the increase in the Index from the date hereof until the date on which such sum is payable. 11 12 INTEREST If any payment due under this Deed is paid late, Interest will be payable from the date payment is due to the date of payment. L195_are_file_management_task_04 9 © The University of Law Limited 2016-2017 12 13 VAT All consideration given in accordance with the terms of this Deed shall be exclusive of any value added tax properly payable. 13 14 JURISDICTION This Deed is governed by and interpreted in accordance with the law of England and Wales. 14 15 SEVERANCE The invalidity, unenforceability or illegality of any provision (or part of provision) of this Deed under the laws of any jurisdiction shall not affect the validity, enforceability or legality of the other provisions. 15 16 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 hereof have executed this Deed on the day and year first before written L195_are_file_management_task_04 10 © The University of Law Limited 2016-2017 FIRST SCHEDULE Description of the Site The property registered at Land Registry under title number NT165574 SECOND SCHEDULE Form of notice of planning permission [Note to students: this has not been reproduced] THIRD SCHEDULE The Owner’s Covenants with the Council 1. Highways Works To ensure that Commencement of Development does not take place prior to entering into the Highways Agreement with the County Council. 2. Public Transport Contribution To pay to the Council the Public Transport Contribution on the date of this Deed within 10 days of the Commencement of Development. 3. Amenity Contribution To pay the Amenity Contribution to the Council within 12 months of the Commencement of Development. 4. Planning Permission To observe and perform the conditions and limitations subject to which the Planning Permission was granted. FOURTH SCHEDULE Council’s Covenants 1. Repayment of contributions 1.1 The Council hereby covenants with the Owner to use all sums received from the Owner under the terms of this Deed for the purposes specified in this Deed for which they are to be paid or for such other purposes for the benefit of the Development as the Owner and the Council shall agree. 1.2 The Council covenants with the Owner that it will pay to the Owner such amount of any payment made by the Owner to the Council under this Deed which has not been expended in accordance with the provisions of this Deed within five years of the date of receipt by the Council of such payment together with interest at the Barclays Bank plc base rate from time to time for the period from the date of payment to the date of refund. L195_are_file_management_task_04 11 © The University of Law Limited 2016-2017 1.3 The Council shall provide to the Owner such evidence, as the Owner shall reasonably require in order to confirm the expenditure of the sums paid by the Owner under this Deed. 2. Discharge of obligations At the written request of the Owner the Council shall provide written confirmation of the discharge of the obligations contained in this Deed when satisfied that such obligations have been performed. 3. Retail planning permissions The Council hereby covenants with the Owner that the Council shall not within a period of ten years beginning with the date of this Deed grant planning permission for retail development within a radius of 1 kilometre of the boundary of the Site. FIFTH SCHEDULE County Council’s Covenants The County Council hereby authorises the Owner’s approved contractor to carry out such parts of the Highway Works as are within the public highway at the date of this Deed in accordance with the terms and stipulations contained in this Deed. SIXTH SCHEDULE Highways Agreement [Note to Students: this has not been reproduced] L195_are_file_management_task_04 12 © The University of Law Limited 2016-2017 THE CORPORATION SEAL of Nottingham City Council was affixed in the presence of: Authorised Signatory: THE CORPORATION SEAL of Nottingham County Council was affixed in the presence of: Authorised Signatory: EXECUTED AS A DEED by British Ordnance Systems Limited in the presence of: Director: Director/Secretary: EXECUTED AS A DEED by Phoenix Developments Limited in the presence of: Director: Director/Secretary: