Planning Obligation by Deed of Agreement

under Section 106 of the Town and Country

Planning Act 1990 relating to the development of land at 1South Coast Road, Peacehaven, East Sussex, BN10 8SY Application number LW/15/0462

Dated 2016

(1) LEWES DISTRICT COUNCIL (2) SEAVIEW DEVLOPMENTS LIMITED

Version 4 – JCS 11.07.16 Affordable Housing

-2- Ref: 126/A0.7/PCP:185353.2/haaa

Planning Obligation by Deed of Agreement

under Section 106 of the Town and Country

Planning Act 1990 relating to the development of land at 1South Coast Road, Peacehaven, East Sussex, BN10 8SY Application number LW/15/0462

Dated 2016

(1) LEWES DISTRICT COUNCIL (2) SEAVIEW DEVLOPMENTS LIMITED

Version 4 – JCS 11.07.16 Affordable Housing

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DATE 2016

PARTIES

(1) LEWES DISTRICT COUNCIL of Southover House, Southover Road, Lewes BN7 1AB

(“the Authority”)

(2) FREEHOLDER SEAVIEW DEVELOPMENTS (SUSSEX) LTD, (Co. Regn.

No.08498952) of 30-34 North Street, Hailsham, East Sussex, BN27 1DW (“Owner”)

INTRODUCTION

1 The Authority is the local planning authority for the purposes of the Act for the area in

which the Site is situated.

2 The Owner is the freehold owners of the Site as described in the First Schedule.

3 The Owner agrees to provide affordable housing to alleviate the demands on

infrastructure caused by the Development, and agrees to enter into this Deed.

4 It is agreed that the requirements of this Deed meet the requirements of the Community

Infrastructure Levy Regulations 2010 and the National Planning Policy Framework and

are of benefit to the public.

5 The Owner has submitted the Application to the Authority and the parties have agreed to

enter into this Deed in order to secure the planning obligations contained in this Deed.

NOW THIS DEED WITNESSES AS FOLLOWS:

OPERATIVE PART

1 DEFINITIONS

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

meanings:

General Definitions

“Act” the Town and Country Planning Act 1990 as

amended

“Application” the application for planning permission for the

Development and allocated reference number

LW/15/0858

“Approval” any approval, agreement, consent, certificate or

expression of satisfaction in relation to this Deed

“Chief Executive” the Authority’s Chief Executive and any other person

nominated by the Authority for the purposes of this

Deed and shall include his duly authorised agents and

representatives and any successor of his

Formatted: Strikethrough

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“Commencement of Development” the date on which any material operation (as defined

in Section 56(4) of the Act) forming part of the

Development begins to be carried out other than (for

the purposes of this Deed and for no other purpose)

operations consisting of site clearance, demolition

work, archaeological investigations, investigations for

the purpose of assessing ground conditions, remedial

work in respect of any contamination or other adverse

ground conditions, diversion and laying of services,

erection of any temporary means of enclosure, the

temporary display of site notices or advertisements

and “Commenced” and “Commence Development”

shall be construed accordingly.

“this Deed” this planning obligation

“Development” the development of the Site by demolition of existing

bungalow and erection of 3-storey block of 6 x two

bedroom flats as set out in the Application and to be

carried out in accordance with the Planning

Permission

“Dwelling” a dwelling (including a house flat or maisonette) to be

constructed pursuant to the Planning Permission

“Notice” any notice or notification in relation to this Deed

“Occupation” and “Occupied” occupation for the purposes permitted by the Planning

Permission but not including occupation by personnel

engaged in construction, fitting out or decoration or

occupation for marketing or display or occupation in

relation to security operations and “occupy” shall be

construed accordingly.

“Plan” the plan titled Location Plan attached to this Deed

“Planning Permission” the planning permission subject to conditions to be

granted by the Authority pursuant to the Application

including any amendments and variations of that

permission and all approvals granted under that

permission

“Security Interest” any mortgage, charge (whether fixed or floating, legal

or equitable), pledge, lien, assignment by way of

security or other security interest securing any

obligation of any person, or any other agreement or

arrangement having a similar effect

“Site” the land against which this Deed may be enforced as

shown edged red on the Plan and described in the

First Schedule

“Specified Date” the date on which any obligation arising under this

Deed is due to be performed

“1972 Act” the Local Government Act 1972

Formatted: Strikethrough

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“1980 Act” the Highways Act 1980

“Working Day” means a day when the United Kingdom clearing

banks are open for business in the City of London

Affordable Housing Definitions

“Acquiring RP” the RP acquiring the Affordable Housing Land and the

Affordable Housing Units in accordance with the Third

Schedule

“Affordable Housing” subsidised housing available to persons who cannot

afford to rent or buy housing generally available on

the open market

“Affordable Housing Land” that part or parts of the Development upon which the

Affordable Housing Units are to be constructed

“Affordable Housing Units” that part or parts of the Development to be

constructed as Affordable Housing comprising 5 No 2

Bedroomed semi-detached houses identified as HS1,

HS2, HS24, HS25 and HS26 and 5 No 3 Bedroomed

semi-detached houses identified as HS3, HS4, HS5,

HS6 and HS7 together with 10 car parking spaces

shown on drawing numbers [drawing references] in

accordance with the Affordable Housing Tenure Plan

or any alternative number and composition of units

authorised by the Authority

“Affordable Rents” Rents which are no more than eighty per cent (80%)

(Including service charges) of the local market rent

valued using the Royal Institute of Chartered

Surveyors approved valuation methods for the

relevant property type

“Affordable Housing Tenure Plan” means a plan of the Site to be submitted to the

Authority showing the tenure, plot numbers, and

internal floor space of the Affordable Housing Units

“Chargee” any mortgagee or chargee of the RP or the

successors in title to such mortgagee or chargee or

any receiver or manager (including an administrative

receiver) appointed pursuant to the Law of Property

Act 1925

“Chargee’s Duty the tasks and duties set out in Section C of Part 2 of

the Third Schedule

“Homes and Communities

Agency” the body known as the Homes and Communities

Agency established under the Housing and

Regeneration Act 2008 or any successor organisation

or body

“Housing Policy & Development

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Manager” the Authority’s Housing Policy & Development

Manager or any other officer nominated by the

Authority for the purposes of this Deed

“Intermediate Sale or Intermediate housing” Means intermediate housing products

including shared equity (shared ownership and equity

loans) for sale and rent provided at a cost below

market levels subject to the criteria in the Affordable

Housing definition and in accordance with the

guidelines published by the Government.

“Nomination Agreement” the nomination agreement to be agreed between the

Authority and the Acquiring RP

“Open Market Dwellings” Dwellings which are general market housing for sale

on the open market and which are not Affordable

Housing Units

“Protected Tenant” any tenant who has:

a) exercised the right to acquire pursuant to

the Housing Act 1996 or any statutory

provision for the time being in force in

respect of a particular Affordable Housing

Unit

b) exercised any statutory right to buy in

respect of a particular Affordable Housing

Unit

c) been granted a Shared Ownership Lease

“RP” a registered provider of social housing as defined in

the Housing and Regeneration Act 2008 who is

registered with the Homes and Communities Agency

pursuant to that Act and has not been removed from

the register pursuant to that Act (or any equivalent

provider of social housing resulting from a

modification, extension or re-enactment of the type

described in clause 2.5 of this Deed) and who is

approved by the Head of Housing Strategy & Needs

having regard to the written details confirming how the

Affordable Housing Units will be managed or any

other organisation approved by the Housing Policy &

Development Manager

“Shared Ownership Lease” a shared ownership lease enabling a purchaser to buy

a share of an Affordable Housing Unit prepared in

accordance with the Homes and Communities Agency

guidelines

“Tenancy” an assured tenancy agreement granted to a tenant at

affordable rents in accordance with the Affordable

Rents applicable at the date of the first occupation

prepared in accordance with the Homes &

Communities Agency’s guidelines

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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. The

Authority may take action against, or release or compromise the liability of, any such

person or party, or grant time or other indulgence, without affecting the liability of any

other such person or party.

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 party deriving title through or under that party and in the case of the Authority the

successor to its statutory functions

2.7 The headings 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, Section 111 of the 1972 Act and

all other powers enabling.

3.2 The covenants, restrictions and requirements imposed upon the Owner and the

Mortgagee under this Deed create planning obligations pursuant to Section 106 of the Act

and are enforceable by the Authority as local planning authority against the Owner

4 CONDITIONALITY

4.1 This Deed is conditional upon the grant of the Planning Permission save for the

provisions of clauses 7.1, 13 and 14 (legal costs, jurisdiction and delivery clauses) which

shall come into effect immediately upon completion of this Deed.

4.2 The Third Schedule shall not come into effect until the Commencement of Development

save for the provisions of paragraph 1 of Part 2 and section A of Part 3 ( the pre-

commencement provisions) which shall come into effect immediately upon grant of the

Planning Permission.

5 THE OWNER’S COVENANTS

5.1 The Owners covenant with the Authority as set out in the Third and Fourth Schedules.

6 THE AUTHORITY’S COVENANTS

6.1 The Authority covenants with the Owner as set out in the Second Schedule.

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7 MISCELLANEOUS

7.1 The Owner shall pay to the Authority on completion of this Deed their reasonable legal

costs and disbursements incurred in the negotiation, preparation and execution of this

Deed including liaison between the Authority for the purposes of this Deed

7.2 No provisions of this Deed shall be enforceable under the Contracts (Rights of Third

Parties) Act 1999

7.3 Insofar as any part of this Deed is found (for whatever reason) to be invalid illegal or

unenforceable then such invalidity illegality or unenforceability shall not affect the validity

or enforceability of the remaining provisions of this Deed.

7.4 This Deed shall cease to have effect (insofar only as it has not already been complied

with) if the Planning Permission shall be quashed, revoked or otherwise withdrawn or

(without the consent of the Owner) it is modified by any statutory procedure or expires

prior to the Commencement of Development.

7.5 No person shall be liable for any breach of any of the planning obligations or other

provisions of this Deed after they have parted with their entire interest in the Site unless

they held such an interest at the date the breach occurred

7.6 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.

7.7 The provisions of this Deed shall not be enforceable against:

(i) the purchasers or occupiers of individual Dwellings forming part of the

Development save for paragraph 7 of Part 2 of the Third Schedule which

(subject to paragraph 10 of said Part 2 of the Third Schedule ) shall be

enforceable against the owners and occupier of Affordable Housing Units or their

mortgagees; or

(ii) any statutory undertaker who has or acquires an interest in the Site by virtue of

having plant or apparatus situated therein.

7.8 Nothing contained or implied in this Deed shall prejudice or affect the rights discretions

powers duties and obligations of the Authority under all statues by-laws statutory

instruments orders and regulations in the exercise of their functions as a local authority.

8 WAIVER

No waiver (whether expressed or implied) by the Authority or the 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 Authority or the

Owners from enforcing any of the relevant terms or conditions or for acting upon any

subsequent breach or default.

9 CHANGE IN OWNERSHIP

The Owner agrees to give the Authority 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 (other than the sale or disposal of individual Dwellings

forming part of the Development) such notice to give details of the transferee’s full name

and address or registered office together with the area of the Site or unit of occupation

purchased by reference to a plan.

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12 VAT

All consideration given in accordance with the terms of this Deed shall be exclusive of any

value added tax properly payable.

13 JURISDICTION

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

Wales.

14 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.

15 SPECIFIED DATE AND PAYMENT NOTICE

15.1 Where this Deed imposes a requirement to undertake an act or cease an activity on a

Specified Date the Owner shall:

15.1.1 give Notice of the Specified Date to the Authority not more than seven days after

such Specified Date and

15.2 If Notice of a Specified Date is not given to the Authority as required by clause 15.1

above the Authority shall be entitled in its absolute discretion to determine the Specified

Date. Following determination of a Specified Date the Authority shall give Notice of the

Specified Date to the Owner as required by clause 15.1 above:

16 SERVICE OF NOTICES ETC

16.1 Any Notice or Approval must be in writing and unless the receiving person or party or his

authorised agent acknowledges receipt, is valid if, and only if -

16.1.1 it is given by hand, sent by registered post or sent by recorded delivery and

16.1.2 it is served at any of the following:

- the address of the receiving person or party stated in this Deed or such

other address in England for service as the receiving person or party may

have previously notified in writing

- the last known address of the receiving person or party

- in the event that the receiving person or party is a corporate body, at the

registered office of that body in England or the principal office of that body

in England

16.2 Where the agreement, Approval or consent is required by the Owner from the Authority

under the terms of this Deed such agreement, any such agreement, Approval or consent

shall be given on behalf of:

(i) the Authority by the Chief Executive;

16.3 Any Notice or Approval given by hand in accordance with clause 16.1 is to be treated as

served when left at the relevant address or office.

16.4 Unless it is returned through the Royal Mail undelivered, any Notice or Approval sent by registered post or recorded delivery in accordance with clause 16.1 is to be treated as served on the third working day after posting, regardless of whether or not it is received.

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16.5 If the receiving person or party consists of more than one person, a notice to one of them is notice to all.

16.6 Approvals and Notices and shall not be unreasonably withheld or delayed.

17 LOCAL LAND CHARGE

17.1 This Deed shall be registered as a local land charge by the Authority.

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

18. DISPUTE PROVISIONS

18.1 In the event of any dispute or difference arising between any of the parties to this Deed in

respect of any matter contained in this Deed such dispute or difference shall be referred

to an independent and suitable person holding appropriate professional qualifications to

be appointed (in the absence of an agreement) by or on behalf of the president for the

time being of the professional body chiefly relevant in England with such matters as may

be in dispute and such person shall act as an expert whose decision shall be final and

binding on the parties in the absence of manifest error and any costs shall be payable by

the parties to the dispute in such proportion as the expert shall determine and failing such

determination shall be borne by the parties in equal shares.

18.2 In the absence of agreement as to the appointment or suitability of the person to be

appointed pursuant to Clause 18.1 or as to the appropriateness of the professional body

then such question may be referred by either party to the president for the time being of

the Law Society for him to appoint a solicitor to determine the dispute such solicitor acting

as an expert and his decision shall be final and binding on all parties in the absence of

manifest error and his costs shall be payable by the parties to the dispute in such

proportion as he shall determine and failing such determination shall be borne by the

parties in equal shares.

18.3 Any expert howsoever appointed shall be subject to the express requirement that a

decision was reached and communicated to the relevant parties within the minimum

practicable timescale allowing for the nature and complexity of the dispute and in any

event not more than twenty-eight working days after the conclusion of any hearing that

takes place or twenty-eight working days after he has received any file or written

representation.

18.4 The expert shall be required to give notice to each of the said parties requiring them to

submit to him within ten working days of notification of his appointment written

submissions and supporting material and the other party will be entitled to make a

counter written submission within a further ten working days.

18.5 The provisions of this clause shall not affect the ability of the Authority or County Council

to apply for and be granted any of the following: declaratory relief, injunction, specific

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performance, payment of any sum, damages, any other means of enforcing this Deed

and consequential and interim orders and relief.

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

written.

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FIRST SCHEDULE

Details of the Owner’s Title, Mortgagee’s Charge

and description of the Site

1. The Owner is the registered proprietor of freehold title numbers ESX244496, ESX313980

and ESX313981 registered at Land Registry.

1. The Site comprises the whole of freehold title numbered ESX244496, ESX313980 and

ESX313981 and is known as The Former Brighton Motel, 1 South Coast Road,

Peacehaven East Sussex (BN10 8SY), land lying south of 1 South Coast Road,

Peacehaven, and land on the east side of 2 Wellington Road, Peacehaven.

2. The Owner warrant that no person other than the Owner has any legal or equitable interest

in the Property

SECOND SCHEDULE

The Authority’s covenants with the Owners

1. The Authority shall issue the Planning Permission within 7 days of completion of this Deed

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THIRD SCHEDULE

The Owner’s covenants with the Authority

PART 1– AFFORDABLE HOUSING

Section A – General Provisions

Pre-commencement

1. The Affordable Housing Tenure Plan shall be submitted to Authority not later than the

submission of the last of the applications for reserved matters approval and there shall be no

Commencement of Development until such written approval to the Affordable Housing Tenure

Plan by the Authority is given (such approval not to be unreasonably withheld or delayed by the

Authority)

2. The Development shall not be Commenced until the Owners have entered into an unconditional

and binding contract to transfer the Affordable Housing Land and the Affordable Housing Units to

the Acquiring RP on the terms and with the benefit of the rights specified in Section B of Part 2 of

the Third Schedule and a certified copy of the contract has been delivered to the Chief Executive.

Construction standards for Affordable Housing Units

3. The Affordable Housing Units shall be constructed in compliance with the Acquiring RP’s design

brief

Occupation of Open Market Dwellings

4. No more than 25% of the Open Market Dwellings shall be occupied until all of the Affordable

Housing Units have been constructed in accordance with the Planning Permission and this Deed

and transferred ready for residential occupation to the Acquiring RP and notification to this effect

has been received by the Authority.

Nomination Agreement

5. None of the Affordable Housing Units shall be Occupied until the Acquiring RP has entered into

a Nomination Agreement with the Authority.

Use of Affordable Housing Land and Units

6. No building or structure shall be constructed on the Affordable Housing Land other than the

Affordable Housing Units.

7. The Affordable Housing Units shall not be used other than for Affordable Housing.

8. No less than 50% of the Affordable Housing Units shall be occupied pursuant to a Tenancy

9. No more than 50% of the Affordable Housing Units shall be occupied pursuant to Intermediate

Housing or Intermediate Sale

10. Occupation of the Affordable Housing Units shall be limited to persons included on the

Authority’s housing register unless otherwise agreed with the Authority.

11. The Acquiring RP shall comply with the completed Nomination Agreement.

Obligations not binding on specified persons

12. The obligations in paragraphs 1 to 11 of this Schedule shall not be binding on:

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a) any Protected Tenant or any person deriving title from the Protected Tenant or any

successor in title thereto; and

b) any Chargee provided that the Chargee shall have first complied with the Chargee’s

Duty;

Provision of Information

13. The Owners and the Acquiring RP shall forthwith provide the Authority with such information

as the Authority may require in connection with the Affordable Housing Land and the Affordable

Housing Units including correspondence with the Homes and Communities Agency

Section B - Terms and rights

1. The transfer of the Affordable Housing Land and the Affordable Housing Units shall be made

with the benefit of the following rights:

a) Full and free rights of access both pedestrian and vehicular from the public highway to

the Affordable Housing Land

b) Full and free rights to the passage of water soil electricity gas and other services

through the pipes drains channels wires cables and conduits which shall be in the

adjoining land up to and abutting the boundary to the Affordable Housing Land all such

services to be connected to the mains.

2. The transfer of the Affordable Housing Land and the Affordable Housing Units shall include the

following terms and conditions:

(a) Title to the Affordable Housing Units shall be deduced in accordance with the

provisions of the Land Registration Act 2002

(b) The Affordable Housing Land and Affordable Housing Units shall be transferred

subject to the matters contained in the Property Charges Registers of the Title Numbers

referred to in the in the First Schedule and subject to such other matters as the parties

may agree

(c) Vacant possession of the Affordable Housing Land and Affordable Housing Units shall

be given on completion

(d) The transfer of the Affordable Housing Land and Affordable Housing Units shall be

made with full title guarantee

Section C - Chargee’s Duty

Prior to seeking to dispose of the Affordable Housing Units pursuant to any default under the terms

of its mortgage or charge the Chargee shall give not less than 3 months’ prior notice to the

Authority of its intention to dispose and:

(a) in the event that the Authority responds within 2 months from receipt of the notice

indicating that arrangements for the transfer of the Affordable Housing Units can be

made in such a way as to safeguard them as Affordable Housing then the Chargee

shall co-operate with such arrangements and use all reasonable endeavours to

secure such transfer

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(b) if the Council does not serve its response to the notice served under paragraph (a)

within the 2 months then the Chargee shall be entitled to dispose free of the

restrictions set out in this schedule

(c) if the Council or any other person cannot within 3 months of the date of service of its

response under paragraph (a) secure such transfer then provided that the Chargee

shall have complied with its obligations under paragraph (a) the Chargee shall be

entitled to dispose free of the restrictions set out in this Part of the Third Schedule

PROVIDED THAT at all times the rights and obligations in this part shall not require the Chargee

to act contrary to its legal duties under the charge or mortgage and subject always to such

disposal allowing for recovery of the Chargee’s charge or mortgage, including reasonable interest

and reasonable costs relating to that charge or mortgage.

THE COMMON SEAL OF

LEWES DISTRICT COUNCIL

was affixed in the presence of:

.

......................................

Authorised signatory

Executed as a deed by

SEAVIEW DEVELOPMENTS

(SUSSEX) LTD

acting by [a director and its secretary] [two directors]

[name] a director and

[name] a director / its secretary

.....................................

Signature of Director

.......................................

Signature of [Secretary][Director]

.....................................

Signature of Director

.......................................

Signature of [Secretary][Director]