Via http://docs.planning.cornwall.gov.uk/rpp/showimage.asp?j=PA14/02920&inde...

S106    27/07/2016

THIS AGREEMENT is made 27 July 2016

THE CORNWALL COUNCIL (1)
and
HAYLE RUGBY FOOTBALL CLUB LIMITED (2)

PLANNING OBLIGATION BY
AGREEMENT under
Section 106 of the Town and
Country Planning Act 1990

Relating to land at
Hayle Rugby Club
10 Marsh Lane
Hayle
Cornwall
TR27 5HX

Legal Service
The Cornwall Council
County Hall
Truro
Cornwall
TR1 3AY Ref: 046291

THIS DEED is made 27th July 2016

BETWEEN

(1) THE CORNWALL COUNCIL of County Hall Treyew Road Truro TR1 3AY
(“the Council”)

(2) HAYLE RUGBY FOOTBALL CLUB LIMITED (Company Registration No26777542)
of Memorial Park, Marsh Lane, Hayle, TR27 4PS (“the Owner”)

WHEREAS

1. The Council is the Local Planning Authority for the purposes of this Deed for the area
within which the land described in the First Schedule (“the Land”) is situated and by
whom the obligations contained in this Deed are enforceable

2. The Owner is interested as freehold owner in the Land which is registered at the
Land Registry with title absolute under title number CL205618

3. The Owner has applied to the Council for planning permission for the Development
on the Land and the Council is minded to grant approval of the Development under
reference number PAM/02920 (“the Planning Permission”) subject to the Owner
first entering into this Deed

NOW THIS DEED is made in pursuance of Section 106 of the 1990 Act and contains
planning obligations and is a planning obligation for the purposes of that Section and
WITNESSES as follows:

1. DEFINITIONS AND INTERPRETATION

It is agreed and declared as follows for the purposes of this Deed the following
expressions shall have the following meanings:

1.1 Definitions

“the 1990 Act” means the Town and Country Planning Act 1990 (as amended)

“the 1999 Act” means The Contracts (Rights of Third Parties) Act 1999 as may be
amended from time to time

“the Application" means the application for outline planning permission to carry out
the Development and which was validated to the Council on 31St March 2014 and
allocated planning reference PA14/02920

“Commencement of Development" means the date on which any material
operation (as defined in Section 56(4) of the 1990 Act) forming part of the
Development begins to be carried out other than (for the purposes of this Deed and
for no other purpose):
(a) operations consisting of site clearance;
(b) demolition work;
(c) archaeological investigations;
(d) investigations for the purpose of assessing ground conditions;
(e) remedial work in respect of any contamination or other adverse ground
conditions;
(f) diversion and laying of services;
(9) erection of any temporary means of enclosure;
(h) the temporary display of site notices or advertisements; and
(i) any work relating to SUDS
and “Commence” “Commencement of Development” and “Commence Development”
shall be construed accordingly

“Development" means outline application with some matters reserved for proposed
development of up to 15,539 sq.m (gross) retail development (A1/A3), associated
infrastructure, access arrangements, servicing, parking and landscaping

“the Expert” means a person having appropriate qualifications and local knowledge
and experience in the matters in dispute as agreed by the Relevant Parties or failing
agreement such person as is nominated by the President for the time being of the
Royal Institution of Chartered Surveyors on the application of the Relevant Parties

“Hayle Town Centre Contribution” means the sum of Five Hundred Thousand
Pounds Nil Pence (£500,000.00) increased by the Percentage towards the provision
of a Hayle town centre management programme including the appointment of a Hayle
town centre manager and for events and projects that will promote the sustainability
and preserve the viability of the town.

‘lndex’ means the percentage rise in the United Kingdom Consumer Price Index
when the index figure published in the September before the day of rent review is
compared with the published index figure in the preceding September but if the basis
for calculation of the Consumer Price Index has changed and any method of
calculation between the new and the old figures is officially published that method
shall be used for the purposes of comparison under this provision

“Interest" means 4% above the Base-lending rate of the National Westminster Bank
Plc from time to time or such other bank as the Council may notify the Applicant

“Land” means the Land referred to in the First Schedule and Recitals 1 and 2 hereof

“Occupation" means occupation for the purposes of the retail use 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 the terms "Occupied" "Occupy" and
“Occupier” shall be interpreted accordingly;

“Penzance Town Centre Contribution” means the sum of Seven Hundred and Fifty
Thousand Pounds Nil Pence (£750,000.00) increased by the Percentage towards the
provision of the Penzance town centre management programme as provided at
Schedule Five

‘Percentage’ means the increase in the percentage rise in the United Kingdom
General Index of Retail Prices (All Items) when the last published index figure before
the day of payment is compared with the last published index figure before the date of
this Agreement but if the basis for calculation between the new and the old figures is
officially published that method shall be used for the purposes of comparison under
this provision

“Phase" means each phase of construction of the Development identified in a
phasing plan approved by the Council and pursuant to the Planning Permission;

“the Plan” means the plan referred to in the First Schedule and annexed hereto

[Plan Drawing]

“Planning Administration Fee” means the Council’s charge to recover the
expenses incurred by the Council in monitoring compliance with the obligations
contained in this Deed

“the Planning Permission” means the planning permission pursuant to the
Application

“Relevant Parties” means the parties to this Deed or their successors in title and/or
assigns and in the case of the Council includes any statutory successors as local
planning authority

“SUDS” means the Sustainable Urban Drainage System comprising all surface
water treatment and drainage systems including any chambers pipework swales reed
beds ponds filter trenches attenuation tanks detention basins and the like to be
constructed on the Land to serve the Development and all other things ancillary
thereto;

“SUDS Maintenance Plan” means a specification for the future maintenance of the
SUDS;

“SUDS Phased Construction Plan” means a specification for the phased
construction of the SUDS including the construction of any temporary SUDS
features;

“SUDS Specification” means a specification for the laying out and construction of
the SUDS in accordance with national standards for the design and construction of
SUDS including any local guidance from the Council

“Town Councils" mean the Hayle Town Council and the Penzance Town Council as
the case may be

“Transport Assessment” the transport assessment submitted as part of the
Application and approved by the Council;

“Travel Plan” means a plan to be prepared and submitted to the Council for
approval by the Owner in accordance with the provisions of the Interim Travel Plan
“Travel Plan Co-ordinator” means a person appointed to co-ordinate the
implementation of sustainable travel initiatives for the Development by:

(a) securing the monitoring of the traffic generated by the Development in
accordance with the approved Travel Plan;
(b) promoting sustainable transport measures for the Development;
(0) working with the Council to ensure the delivery of the approved Travel Plan;

1.2 Interpretation

1.2.1 The expressions “the Council” “the Owner” shall include their successors in title and
assigns and any person(s) or body corporate deriving title through or under them

1.2.2 Words importing the masculine gender only shall include all other genders and vice
versa

1.2.3 Words importing the singular shall include the plural and vice versa

1.2.4 Words importing persons shall include companies and corporations and vice versa

1.2.5 Where any party consists of two or more persons companies or corporations the
Deed expressed to be made by that party and the conditions and provisions
contained in this Deed shall be deemed to have been made jointly and severally by
the persons named as that party

1.2.6 Save where a contrary intention is expressed a reference herein to a clause or
Schedule shall be deemed to be a reference to a clause or Schedule of this Deed and
reference to a sub-clause paragraph or Part shall be deemed to be a reference to a
sub clause or paragraph or Part of the clause or Schedule in which such reference
appears

1.2.7 All references 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

1.2.8 The clause and paragraph headings herein are for ease of reference only and shall
not affect the interpretation of this Deed

2. STATUTORY PROVISIONS

2.1 This Deed is made pursuant to Section 106 of the 1990 Act and all other enabling
powers and enactments which may be relevant for the purpose of giving validity
hereto or facilitating the enforcement of the obligations herein contained with the
intent to bind the Owner’s interest in the Land and to the intent that the obligations on
the part of the Owner herein contained falling within the provisions of Section 106 of
the 1990 Act shall be planning obligations for the purposes of Section 106 of the 1990
Act and are enforceable by the Council as local planning authority in accordance
therewith but subject as hereinafter provided

2.2 No person shall be liable for breach of a covenant contained in this Deed after he
shall have parted with all interest in the Land or the part in respect of which such
breach occurs but without prejudice to liability for any subsisting breach of covenants
prior to parting with such interest

2.3 This Deed shall take effect from the date hereof PROVIDED THAT if the Planning
Permission is revoked or expires by the effluxion of time then this Deed shall cease to
have effect provided always that at the time of the said revocation no development
has begun within the meaning of Section 56 of the 1990 Act;

2.4 The provisions of the 1999 Act shall not apply to this Deed and no third party shall
have any rights to enforce the terms of this Deed

2.5 Insofar as any clause or clauses of this Deed are found (for whatever reason) to be
invalid, illegal or unenforceable, then such invalidity, illegality or unenforceability shall
not affect the validity or enforceability of the remaining provisions of this Deed.

3. COVENANTS

The Owner covenants with the Council to fulfil the obligations and restrictions
specified in this Deed

4. OWNER’S FURTHER AGREEMENT

The Owner further agrees as follows:

4.1 To supply to the Council (within 21 days of the Council’s written request to do so)
such information as the Council within its reasonable discretion considers that it
requires in order to determine whether the terms and conditions of this Deed are
being observed

4.2 To pay the Council's reasonable legal fees and any costs incurred in the negotiation
preparation and execution of this Deed on completion of this Deed

4.3 To pay the Council’s Planning Administration Fee of £3750.00 on completion of this
Deed

5. REGISTRATION

The parties hereby consent to the registration of:

(a) This Deed as a Local Land Charge by the Council

(b) This Deed on the Charges Register of Title Number CL205618 at the Land
Registry by the Owner on completion of this Deed and Office Copies from
Land Registry provided to the Council as evidence of registration

6. NOTICES

Any notice consent or approval required to be given under this Deed to any party to
this Deed shall be in writing and shall be delivered personally or sent by pre-paid first
class post to the address of the party aforesaid or such other address for service as
shall have been previously notified by the party to the other parties

7. SETTLEMENT OF DISPUTES

7.1 Any dispute arising out of the provisions of this Deed shall be referred to the Expert
for the determination of that dispute PROVIDED THAT the provisions of this clause
shall be without prejudice to the right of any party to seek the resolution of any matter
relating to the Deed by the courts and / or in accordance with Section 106(6) of the
1990 Act

7.2 The Expert shall be appointed jointly by the Relevant Parties who are in dispute

7.3 The decision of the Expert shall be final and binding upon the Relevant Parties and
subject to the following provisions:-

(a) the charges and expenses of the Expert shall be borne equally between the
Relevant Parties who are in dispute unless the Expert shall otherwise direct;
(b) the Expert shall give the Relevant Parties who are in dispute an opportunity to
make representations and counter representations to him before making his
decision;
(c) the Expert shall make his decision within the range of any representations
made by the Relevant Parties who are in dispute themselves;
(d) where there is a dispute as to the amount of any contribution the Owner shall
pay its estimate of such contribution to the Council at the time specified in this
Deed and shall pay any difference between that figure and the amount
determined by the Expert within 28 days of the Expert’s decision together with
Interest thereon calculated (in accordance with this Deed) from the date the
payment was required until the date it is made

8. JURISDICTION

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

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

THE FIRST SCHEDULE

(“the Land”)

ALL THAT piece or parcel of land known as Hayle Rugby Club, 10 Marsh Lane, Hayle,
Cornwall, TR27 5HX Cornwall ALL OF WHICH said land is shown for identification purposes
only edged with a red line on the Plan

THE SECOND SCHEDULE

(“the Obligations and Restrictions”)

PART 1 - GENERAL PROVISIONS

1 GENERAL

1.1 NOTICE OF COMMENCEMENT

1. No Development shall Commence until the Owner has served notice on the Council
clearly addressed and marked for the attention of the Head of Planning and Enterprise
for the Council confirming the date for the Commencement of Development

PART 2 - FINANCIAL CONTRIBUTIONS

OWNERS COVENANTS

The Owner covenants as follows:

2. The Owner covenants to pay to the Council the Penzance Town Centre Contribution
prior to the Commencement of Development

3. There shall be no Commencement of Development until the Penzance Town Centre
Contribution has been transferred to the Council as agent for the Penzance Town
Council

4. The Owner covenants to pay to the Council the Hayle Town Centre Contribution as
agent for the Hayle Town Council prior to the Commencement of Development

5. There shall be no Commencement of Development until the Hayle Town Centre
Contribution has been transferred to the Council as agent for Hayle Town Council

COUNCILS COVENANTS

1. The Council covenants as agent to transfer the Hayle Town Centre Contribution and
the Penzance Town Centre contribution to the Hayle Town Council and Penzance
Town Council respectively.

10

THE THIRD SCHEDULE

Transport & Highway Improvements

1 TRAVEL PLAN

1.1 The Owner shall not Commence Development until a Travel Plan Co-ordinator has
been employed to supervise and secure the implementation of the measures set out
in the approved Travel Plan.

1.2 The Owner shall employ a Travel Plan Co-ordinator as long as the Travel Plan
remains in force.

1.3 The Owner shall not Commence Development until the Travel Plan has been
submitted to and approved by the Council, such Travel Plan to include the following:

(i) proposed footpath and cycle routes within the Land which link the
Development to key destination points including employment uses, education,
and leisure facilities in accordance with the layout contained in the Reserved
Matters Approvals;

(ii) a car parking management strategy for the control of the parking of vehicles
within the Development and for each Phase including proposals for the
enforcement of parking controls on the adopted highway;

(iii) a communication strategy including real time passenger information at any
identified bus stops within the Development, a community travel website,
personal travel planning facilities, pedestrian and cycle signage to identified
key destination points;

(iv) the general locations of electric car and bicycle charging points;

(v) proposals for the monitoring of trips by private car generated by the
Development to be undertaken annually (or at other intervals to be agreed)
including the location of permanent traffic counters (such equipment to be
maintained in operation by the Owner for at least one year after the
Development is Occupied);

(vi) proposals for a car club scheme, where the Owner considers it appropriate;

(vii) timescales for the provision of each of the above.

1.4 The Owner shall complete the measures set out in the Travel Plan in accordance
with the approved details and the approved timetable for implementation

11

THE FOURTH SCHEDULE

Drainage

The Owner covenants with the Council so as to bind its interest in the Site as follows:

1 DRAINAGE

1.1 No Development shall Commence until the Owner provides to the Council for its
written approval the:

(a) SUDS Specification; and
(b) SUDS Construction Plan; and
(c) SUDS Maintenance Plan.

1.2 No Development shall be occupied until the Owner shall have constructed and
completed the SUDS as identified in the SUDS Construction Plan and in accordance
with the SUDS Specification and as approved in writing by the Council pursuant to
paragraph 1.1 of this Schedule. Following the laying out and completion of the SUDS
the Owner shall procure that such works shall be maintained in accordance with the
maintenance requirements forming part of the SUDS Maintenance Plan.

1.3 The Owner hereby agree that in the event that the Council or other occupiers of the
Land need to connect into the SUDS before adoption by the Council or any foul water
drains or sewers within the Land the Owner will use reasonable endeavours to permit
such connections to facilitate further development the party wishing to connect into
the SUDS or any foul water drains or sewers within the Land to be responsible for all
costs of making any connections required and then contributing a fair proportion
according to use of the cost of use maintenance and repair of any SUDS (until
adoption) in respect of which this right is exercised until the same become
maintainable at public expense and it is hereby agreed between the Owner and the
Council that the only grounds to object to such a connection shall relate to design or
capacity or flow restrictions within the drainage system.

1.4 Once the SUDS for the Development has been installed in its entirety to the
reasonable satisfaction of the Council the Council may adopt (within an agreement
entered into pursuant to the Council’s SUDS Adoption Policy) the SUDS within the

12

Development as approved and agreed in accordance with the Council SUDS
Adoption Policy and in all cases upon terms to be agreed with the Owner.

1.5 Once the SUDS for the Development have been installed in their entirety to the
reasonable satisfaction of the Council the Council may adopt (within an agreement
entered into pursuant to section 38 Highways Act 1980) the SUDS associated with
the adopted highways (and for the avoidance of doubt shall exclude all unadopted
highways) within the Development and in all cases upon terms to be agreed with
the Owner.

1.6 In the event that the Council do not adopt the SUDS and Drainage Works in their
entirety then the SUDS (and which for the avoidance of doubt shall exclude the
SUDS which are included within an agreement pursuant to paragraphs 4 and 5 of this
Schedule) shall be maintained by the management company.

1.7 No Occupation of any building permitted by the Planning Permission shall take place
until the Owner shall have:

a) established a management company pursuant to the SUDs Maintenance Plan in
paragraph 1.1 of this Schedule to be responsible for maintaining the SUDS in
perpetuity (and which for the avoidance of doubt shall exclude the SUDS which are
included within an adoption agreement pursuant to paragraph 1.5 and 1.6 of this
Schedule) in accordance with the SUDS Maintenance Plan; and
b) completed an agreement for the adoption of the SUDS pursuant to paragraph 1.5
of this Schedule.

13

SCHEDULE FIVE

The Penzance Town Centre Works

Change of use of High Street £294k

• Contribution to cost of purchasing retail sites for workspace development and associated planning costs
• Contribution to cost of developing 20 ground floor offices and 14 flats above them in the primary retail area

Market House £33 k

• Feasibility study and design for Grade 1 listed building works to provide indoor market and event facility

Town markets and events £66 k

• Market equipment and promotion
• Town centre footfall promotion events

Town Centre public realm £261k

• Improved pedestrian ‘shared spaces” on Market Jew Street
• Way finding/signage
• Lighting
• Trees and planting
• Shop Front improvements project

Gateway enhancements £48k

• Contribution to new permanent features at gateways to the town

Project management £48 k

• Town centre project management

14

EXECUTED as a DEED by THE CORNWALL ) I
COUNCIL whose Common Seal was hereinto
affixed in the presence of:
Authorised Officer_
Print Name Ben Curnow
Legal Officer
Legal Services 0 1 b 1 Z 7
Cornwall Council
EXECUTED as a DEED by HAYLE RUGBY
FOOTBALL CLUB LIMITED whose Common Seal was hereinto
affixed in the presence of:
Authorised Officer

S BENNEY  R GLANVILLE