Supplemental agreement and deed of variation of section 106 agreement dated 24 September 2003 (as varied on 14 February 2007) relating to land at Southgate, Bath Dated 5 Df2CombQr 2008 Bath and North East Somerset Council (1) Southgate LP (Nominee 1) Limited (2) Southgate LP (Nominee 2) Limited (3)
DATE 5 2008 DQCP rr bf)r PARTIES (1 ) (2) BATH AND NORTH EAST SOMERSET COUNCIL of Riverside, Temple Street, Keynsham, Bristol BS31 1 LA (the "Council") SOUTHGATE LP (NOMINEE 1) LIMITED (company number 5415094) and SOUTHGATE LP (NOMINEE 2) LIMITED (company number 5415093) whose registered office is at 1 Poultry, London, EC2R 8EJ (together the "Developer") WHEREAS (1 ) (2) (3) (4) (5) This Deed is supplemental to an agreement dated 24 September 2003 made between (1) the Council and (2) CGNU Life Assurance Limited (the "Original Agreement"), as varied by a deed of variation dated 14 February 2007, (together the "Principal Agreement") and is entered into by the parties hereto in relation to the Site. Since the date of the Original Agreement CGNU Life Assurance Limited has disposed of its interests in the Blue Land to the Developer. On 5 July 2007 the Developer applied to the Council for planning permission for (a) the development of the proposed basement car park comprising part of the Southgate scheme with minor amendments and creation of 152 additional car parking spaces (under the Council's reference 07/02162/FUL) (the "Basement Car Park Permission") and (b) development of Block ElF comprising part of the Southgate scheme with minor internal and external alterations to include Class D1 alterations to the arcade and amendments to the mix of uses (under the Council's reference 07/02160/FUL) (the "Block ElF Permission"). The Council granted the Basement Car Park Permission and the Block ElF Permission on 28 September 2007 On 5 February 2008 the Developer applied to the Council for planning permission for (a) internal and external alterations to Blocks A, B, C and D comprising part of the Southgate scheme to increase the number of residential units from 91 to 99 residential units and (b) a variation to condition 10 of the Planning Permission (under the Council's reference 08/00502/FU L) (the "Additional Residential Permission"). The Additional Residential Permission will be granted following the completion of this Deed under delegated powers. The parties have agreed to vary the Principal Agreement in accordance with this Deed in the manner hereinafter appearing in order to: (a) apply the provisions of the Principal Agreement to development to be carried out pursuant to the Basement Car Park Permission, the Block ElF Permission and the Additional Residential Permission; (b) make provision for a contribution for variable messaging signs; and (c) vary paragraph 1 of Schedule 1 and Schedule 4 of the Principal Agreement (affordable housing) (6) The Council is the local planning authority for the purposes of the Town and Country Planning Act 1990 for the area within which the Site is situated. NOW THIS DEED WITNESSETH INTERPRETATION 1.1 Save where expressly stated otherwise words and expressions used herein shall have the same meaning as defined in the Principal Agreement. Ref: 1 087/C 17488. 1/PCP:602205.2/cacm
1.2 2 21 Save where expressly stated otherwise references to paragraphs of the Principal Agreement shall be references to paragraphs in Schedule 1 of the Principal Agreement. LEGAL EFFECT This Deed is made pursuant to: (a) Section 1 06A(1 )(a) of the Town and Country Planning Act 1990; and 2.2 2.3 (b) Section 111 of the Local Government Act 1972 The covenants in the Principal Agreement as modified and supplemented by this Deed are planning obligations for the purposes of the Section 106 of the Town and County Planning Act 1990 and are enforceable by the CounciL. Save as expressly varied by this Deed of Variation the Principal Agreement shall remain in full force and effect. VARIATION OF THE PRINCIPAL AGREEMENT Clause 1 (Definitions) 3.1 The following definitions shall be added in clause 1 of the Principal Agreement: (a) "Additional Residential Permission" means the planning permission to be granted pursuant to application reference 08/00502/FUL for (a) internal and external alterations to Blocks A, B, C and D comprising part of the Southgate scheme to increase the number of residential units from 91 to 99 residential units and (b) a variation to condition 10 of the Planning Permission (b) (c) (d) (e) (f) (g) "Affordable Housing" means subsidised housing that will be available to persons who cannot afford to rent or buy housing generally available on the open market "Basement Car Park Permission" means the planning permission reference 07/02162/FUL for the development of the proposed basement car park comprising part of the Southgate scheme with minor amendments and creation of 152 additional car parking spaces "Block ElF Permission" means the planning permission reference 07/02160/FUL for the development of Block ElF comprising part of the Southgate scheme with minor internal and external alterations to include Class D1, alterations to the arcade and amendments to the mix of uses "Chargee" means any mortgagee or chargee of the Registered Social Landlord 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 "Discount Market Rented Units" means affordable housing to be made available by the Registered Social Landlord on a rental basis at a rent that is not higher than 75% of Open Market Rent for that housing "Intermediate Units" means affordable housing to be provided as: (i) Shared Ownership Units, and/or (ii) Discount Market Rented Units (h) "Open Market Rent" means the rent calculated in accordance with the definition of "Market Rent" at Practice Statement 3.4 of the Royal Institution of Chartered Surveyors Ref: 1087/G17488.1/PCP:602205.2/cacm -2-
Appraisal and Valuation Standards (fifth edition) or such amended definition as may replace it from time to time (i) U) (k) (I) "Plan 21" means drawing number SK41/Rev D attached to this Deed and marked "Plan 21" "Plan 22" means drawing number SK42/Rev D attached to this Deed and marked "Plan 22" "Plan 23" means drawing number SK43/Rev D attached to this Deed and marked "Plan 23" "Protected Tenant" means any tenant who; (a) (b) (c) has exercised the right to acquire pursuant to the Housing Act 1996 or any statutory provision for the time being in force (or any equivalent contractual right) in respect of a particular Affordable Housing Unit has exercised any statutory right to buy (or any equivalent contractual right) in respect of a particular Affordable Housing Unit has been granted a shared ownership lease by a Registered Social Landlord (or similar arrangement where a share of the Affordable Housing Unit is owned by the tenant and a share is owned by the Registered Social Landlord) by the Registered Social Landlord in respect of a particular Affordable Housing Unit and the tenant has subsequently purchased from the Registered Social Landlord all the remaining shares so that the tenant owns the entire Affordable Housing Unit (m) (n) (0) (p) (q) ( r) "Shared Ownership Units" means affordable housing to be made available by the Registered Social Landlord where a proportion of the equity is sold on a long lease to the purchaser and the remainder of the equity is retained by to be made available by the Registered Social Landlord subject to rent being charged on the retained equity and on terms that entitle the purchaser to acquire up to 100% of the equity through Staircasing "Social Rented Rent Inflator" means an increase by reference to the amount of the annual increase in the Index (plus half of one percentage point) "Social Rented Units" means affordable housing Units let at initial rents which are in accordance with Target Rents or such other regime or guidance as may from time to time replace the same, such rents to be increased by reference to the Social Rented Rent Inflator "Staircasing" means the purchase by the owner of the additional equity in a Shared Ownership Unit "Target Rents" means rents calculated in accordance with the formula set out in the Guide to Social Rent Reforms in the Local Authority Sector published by the Office of the Deputy Prime Minister in February 2003 or such amended formula published by the Government from time to time and also in accordance with any documents published by the Housing Corporation giving effect to such formula or amended formula "VMS Contribution" means a contribution of 45,000 to be used by the Council for the erection of a variable messaging sign or signs within the vicinity of the Development indicating the number of available car parking spaces in the Avon Street Car Park and the Basement Car Park Ref: 1 087/C 17 488.1/PCP:602205.2/cacm -3-
3.2 The definition of "Affordable Housing Contract" in clause 1 of the Principal Agreement shall be deleted and replaced by: "means a lease for a term of not less than 125 years granted by the Developer to the Registered Social Landlord for the Affordable Housing Units. 33 3.4 The definition of Affordable Housing Price in clause 1 of the Principal Agreement shall be deleted. The definition of "Affordable Housing Units" in clause 1 of the Principal Agreement shall be deleted and replaced by: "means a minimum of 25 per cent of the total number of residential units to be constructed by the Developer as part of the Development in accordance with paragraph 1 of Schedule t and Schedule 4" 3.5 The definition of "Basement Car Park" in clause 1 of the Principal Agreement shall be deleted and replaced by: "means the basement car park shown edged red on (a) Plans 3, 4 and 5 or (b) Plans 21, 22 and 23" 3.6 The definition of "Development" in clause 1 of the Principal Agreement shall be deleted and replaced by: "means the development of the Site in accordance with anyone or more of the Planning Permission, the Basement Car Park Permission, the Block ElF Permission and the Additional Residential Permission, as subsequently amended and/or varied from time to time" Paragraph 1, Schedule 1 (Affordable Housing Provision) 3.7 The following paragraphs 1.2 to 1.9 shall be added to schedule 1 of the Principal Agreement "1.2 1.3 The Developer covenants that 64 per cent of the Affordable Housing Units shall be Social Rented Units The Developer covenants that 36 per cent of the Affordable Housing Units shall be Intermediate Units 1.4 1.5 1.6 1.7 The Developer shall use reasonable endeavours to provide as many of the Intermediate Units as shall be reasonable in the prevailing market conditions as Shared Ownership Units The Developer shall charge an annual rent on the retained proportion of equity in relation to Shared Ownership Units of no more than 1 % of the retained equity In order to ensure that the Intermediate Units are affordable to households who cannot afford to meet their housing need in the market the Developer shall have regard to the Ark report entitled "Opening doors" which gives detailed guidance on appropriate affordability thresholds for the intermediate housing in Bath and any future updates of such report The Developer shall set aside any equity released (including capital gain) from an acquisition of an Affordable Housing Unit under the Right to Acquire or Social HomeBuy schemes after the deduction of the legal costs agent fees and other costs reasonably incurred in connection with the transaction which may include any sums repayable to the Housing Corporation or the Council and/or to any mortgagee resulting from such transaction (the "Relevant Equity Release") and shall only apply the Relevant Equity Release towards the provision of additional (or the improvement of existing) affordable housing within the Council's administrative area Ref: 1087/C17488.1/PCP:602205.2/cacm -4-
1.8 The Developer shall notify the Council's Assistant Director of Adult Care, Housing and Health or such other person fulfilling a similar role from time to time of any acquisition of an Affordable Housing Unit under the Right to Acquire or Social HomeBuy schemes 1.9 The obligation to use the Affordable Housing Units as Affordable Housing shall not be binding on: (a) (b) (c) any Protected Tenant or any mortgagee or chargee of the Protected Tenant or any person deriving title from the Protected Tenant or any successor in title thereto and their respective mortgagees and chargees; or any Chargee; or any purchaser from a mortgagee of an individual Affordable Housing Unit pursuant to any default by the individual mortgagor. Paragraph 19, Schedule 1 (VMS Contribution) 3.8 The following paragraph 19.4 shall be added to schedule 1 of the Principal Agreement: "The Developer shall pay the VMS Contribution to the Council prior to Occupation of the Basement Car Park." Schedule 4 (Affordable Housing) 3.9 Schedule 4 of the Principal Agreement shall be deleted and replaced with revised version of Schedule 4 annexed to this Deed 4 THE COUNCIL'S COVENANT 4.1 The Council shall grant the Additional Residential Permission in the form of the draft attached to this Deed as soon as reasonably practicable following completion of this Deed. 5 5 1 THE DEVELOPER'S COVENANT The Developer agrees that on completion of this Deed it shall pay the Council's reasonable legal costs properly incurred in the negotiation and completion of this Deed EXECUTED AS A DEED and delivered on the date first written above The common seal of BATH AND NORTH EAST SOMERSET COUNCIL) was affixed in the presence ~ Authorised Signatory ~~ Ref: 1 087/C 17 488.1/PCP:602205.2/cacm -5-
Executed as a deed by SOUTHGATE ) LP (NOMINEE 1) LIMITED acting by ) two Directors or a Director and the Company Secretary: Director Director/Secretary Executed as a deed by SOUTHGATE ) LP (NOMINEE 2) LIMITED acting by ) two Directors or a Director and the Company Secretary: Director Director/Secretary Ref: 1 087/C 17 488.1/PCP:602205.2/cacm -6-
SCHEDULE 4 AFFORDABLE HOUSING Part 1 - Affordable Housing Specification 1. The sizes of the Affordable Housing Units and specification of the Social Rented Units should be in accordance with the Housing Corporation Funding standards for the 2006-08 National Affordable Housing Programme 2. The Affordable Housing Units shall be designed and constructed in accordance with "Lifetime Homes" published by the Joseph Rowntree Foundation insofar as reasonably practicable 3. For an agreed proportion of the Affordable Housing Units informed by the then current Housing Needs Survey prepared by the Council which proportion shall not exceed 50 per cent. the internal layout and fittngs shall be constructed to a suitable standard for disabled users which standard shall be agreed between the Council and the Developer Ref: 1 087/C17488 1/PCP:602205.2/cacm -7-
Part 2 - Location and mix of Affordable Housing Units as shown on Accommodation Schedule Rev G dated 11 June 2008 Block B: Plot No. Floor Unit Type R1 2 2 Bed R2 2 2 Bed R3 2 2 Bed R50 3 1 Bed R51 3 1 Bed R52 3 1 Bed Block C: Plot No. Floor Unit Type R20 2 1 Bed R69 3 1 Bed R70 3 2 Bed Block D. Plot No. Floor Unit Type R25 2 2 Bed R26 2 2 Bed R27 2 2 Bed R28 2 2 Bed R29 2 2 Bed R30 2 2 Bed R31 2 2 Bed R32 2 1 Bed R32a 2 1 Bed R74 3 2 Bed Ref: 1087/C17488.1/PCP:602205.2/cacm -8-
R75 3 1 Bed R76 3 1 Bed R77 3 1 Bed R78 3 1 Bed R79 3 1 Bed R80 3 1 Bed Summary: Block Total No 1 Beds No 2 Beds B 6 3 3 C 3 2 1 D 16 8 8 Totals 25 13 12 Ref: 1 087/C17 488. 1 IPCP:602205.2/cacm -9-