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100629 | Section 106 agreement | W1/08-0613

Via OCR please check original http://docs.planning.cornwall.gov.uk/rpp/showimage.asp?j=W1/08-0613&inde...

 

THE CORNWALL COUNCIL
and
ING RED UK (HAYLE HARBOUR) LIMITED

AGREEMENT UNDER SECTION 106 OF THE TOWN AND COUNTRY PLANNING ACT
1990 (AS AMENDED)
relating to Hayle Harbour, Hayle, Cornwall

THIS VERSION IS FOR REFERENCE PURPOSES ONLY AND THE ORIGINAL SHOULD
BE VIEWED IN THE CASE OF ANY DISPUTE

Contents
Clause

Name

Page

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

Definitions and Interpretation ......................................................................... 3
Conditions Precedent .................................................................................... 13
Statutory Provisions and Interests Bound ....................................................... 13
Covenants ................................................................................................... 14
Affordable Housing ....................................................................................... 14
Sustainable Transport ................................................................................... 17
Highway Works ............................................................................................ 19
Parking ........................................................................................................ 20
Sustainable Transport Plan ........................................................................... 20
Green Space and Public Realm ...................................................................... 20
Ecology ....................................................................................................... 25
Education .................................................................................................... 29
Sustainability ............................................................................................... 29
Primary Health Facilities ............................................................................... 30
Business Centre ........................................................................................... 30
Design Framework and Detailed Design Codes ............................................... 30
pedestrian bridge ......................................................................................... 30
carnsew sluiceS............................................................................................ 31
SLUICING IN THE HARBOUR ........................................................................ 32
Accounting procedure ................................................................................... 32
Agreements and Declarations........................................................................ 32

Schedule

Name

1
1
1

Affordable Housing ....................................................................................... 37
Part 1 Definitions ......................................................................................... 37
Part 2 Shared Ownership Lease..................................................................... 42

2

Ecological Management Plan ......................................................................... 43

3
3
3

Dispute Resolution Procedure ....................................................................... 49
Part 1 Appointment of the Expert .................................................................. 49
Part 2 Procedural Rules ................................................................................ 50

4

Carnsew Sluice ............................................................................................. 55

Page

DATED

29th June 2010

PARTIES
(1)

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

(2)

ING RED UK (HAYLE HARBOUR) LIMITED, a company with registered number
05083024 whose registered office is at 60 London Wall, London EC2M 5TQ (the
“Developer”)

BACKGROUND
(A)

The Developer is the freehold owner of the Site and has applied for planning
permission for the Development to the Council.

(B)

The Council is a local planning authority (for the purposes of the 1990 Act) for the
Council’s Area in which the Site is situated and through its predecessor Penwith
District Council has resolved to grant planning permission for the Development
subject to the Developer entering into the planning obligations contained in this
Agreement.

(C)

The Council is also the local highway authority pursuant to the Highways Act 1980
for the County of Cornwall.

(D)

The Council is satisfied that the planning obligations entered into by the Developer
pursuant to this Agreement are necessary for the implementation and use of the
Development.

OPERATIVE PROVISIONS
1

DEFINITIONS AND INTERPRETATION

1.1

In this Agreement:
“1990 Act” means the Town and Country Planning Act 1990 (as amended).
“Account” means a designated interest-bearing account with a registered bank or
deposit holder in the name of the Council and all such interest is to be credited to
the Account.
“Accounting Procedure” means the procedure whereby the Developer accounts
to the Council for certain payments as set out in Clause 20
“Affordable Housing” means Social Rented Units and Intermediate Units,
provided to Qualifying Persons in Housing Need as defined in Schedule 1.
“Affordable Housing Land” means land within the Site to be identified for the
provision of Affordable Housing in any Affordable Housing Scheme.
“Affordable Housing Sum” means a sum which represents 25% of the price
paid for a Dwelling Disposed of in accordance with Clause 5.1.13less 25% of the
Affordable Housing Sum Cost.
“Affordable Housing Sum Cost” means the reasonable costs to the Developer
associated with the marketing and Disposing of a Dwelling in accordance with

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Clause 5.1.13. For the avoidance of doubt the term includes costs expended on
incentives relating to such a Disposal;
“Affordable Housing Units” means those units of residential floorspace within
the Development which shall be provided as Affordable Housing in accordance with
Clause 5 and Schedule 1.
“Affordable Housing Provider” means such company or organisation registered
and/or regulated by the Tenant Services Authority and/or the Homes and
Communities Agency which the Developer may propose as provider of Affordable
Housing at the Development and which may include Carrick Housing, Coastline
Housing, Devon and Cornwall Housing Association, Guinness Hermitage, Ocean
Housing, Sanctuary Shaftesbury, Sarsen Housing Association, Tamar Housing
Society or Westcountry Housing.
“Affordable Housing Scheme” means a scheme for the provision Affordable
Housing and forming part of the Development in accordance with each relevant
Reserved Matters Application which shall include unless otherwise agreed in writing
with the Council:
(a)

the number, unit type, mix, and unit size of the Affordable Housing Units;

(b)

the name of the proposed Affordable Housing Provider, if known;

(c)

the identification of the Affordable Housing Land ;

(d)

arrangements for the transfer of the Affordable Housing Units or Affordable
Housing Land if known; and

(e)

the Phasing Schedule .

"Affordable Rent Tenancy" means an assured tenancy at a rent that does not
exceed the indicative target rent levels of the Homes and Communities Agency for
Affordable Housing let on such tenancy within the Council’s Area.
“Agreement” means this agreement,
“Application” means the application for outline planning permission in respect of
the Development submitted to the former Penwith District Council on 24 April 2008
and given reference number 08-0613 P.
“Appropriate Scheme” means
(a)

In the case of the Pattern Building and, if relevant, the Cart Shed Land, a
scheme for the restoration of the Pattern Building (including, if relevant,
the Cart Shed Land) for use for tourism purposes or as an office/business
centre and

(b)

In the case of the Goonvean Engine a scheme for the erection of a display
for the Goonvean Engine

“Appropriate Standard” means in relation to the Affordable Housing Units built
in accordance with the Planning Permission and Building Regulations (in effect at
the date of the approval of plans for Building Regulation purposes) but enhanced to
meet the requirements of the Code for Sustainable Homes level 4 or such lesser
standards which may be required by the Homes and Communities Agency if
sufficient Social Housing Grant is secured by the Affordable Housing Provider and in

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relation to internal fitments of comparable standard to that offered as standard fit
in the Market Housing Units on the Development but excluding any improvements
or enhancements offered to prospective Market Housing Unit purchasers.
“Approved Scheme” means an Appropriate Scheme for the Pattern Building
(including, if relevant, the Cart Shed Land) or the Goonvean Engine (as the context
admits) which is approved by the Developer.
“BC Index” means the Building Cost Information Service All in Tender Price Index
as published by BCIS (a trading division of the Royal Institution of Chartered
Surveyors Business Services Ltd) or such similar index as may from time to time be
published to replace such index;
“Business Centre” means a building(s) or part(s) of a building(s) with total
maximum area of 4,000 square metres which is developed within Use Class B1 to
provide a range of small business spaces supported by suitable centralised support
facilities within a managed environment and which is referred to in Clause 15.
“Cart Shed Land” means that area of land adjacent to the Pattern Building shown
coloured pink and hatched red on Plan 5
“CEMP” means the Construction Environmental Management Plan to be submitted
by the Developer to the Council for each Development Area of the Development
and in accordance with Clause 11.20.
“Character Area” means the character areas of the Site as identified in the Hayle
Harbour Development Framework and Design Codes and being Riviere Fields,
Hilltop, North Quay, East Quay, South Quay/Foundry as shown on Plan 1.
“Cockle Bank” means the existing sand bank forming part of the harbour within
the Site as shown on Plan 1.
“Code for Sustainable Homes” means the National standard for the sustainable
design and construction of new homes with a range of minimum and enhanced
performance standards for achieving low levels of energy and water use, and
reduced carbon emissions
“Commencement of the Development” is the carrying out of a material
operation as defined in section 56(4) of the 1990 Act save that for the avoidance of
doubt the carrying out of the following shall not constitute a material operation and
(for the purposes of this Agreement) shall not (individually or collectively) amount
to commencement of the Development:
(a)

ground investigation and site survey;

(b)

temporary fence and hoarding;

(c)

archaeological investigations;

(d)

environmental investigations;

(e)

decontamination and remediation;

(f)

site preparation;

(g)

site clearance including demolition of existing buildings and structures;

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(h)

the laying of sewers and services including diversion of existing services;

(i)

the undertaking of any works pursuant to the Detailed Planning
Permission;

(j)

maintenance dredging works within Hayle harbour; and/or

(k)

maintenance and repairs to harbour walls including the South
Breach.

Quay

and “Commence” or “Commenced” in relation to the Development shall be
construed accordingly.
“Commencement Date” means the date of Commencement of the Development
or (as the case may be) the part of the Development in connection with which the
expression is used.
“Condition” means a condition imposed on the Planning Permission.
“Council’s Area” means the Council’s administrative area.
“Council’s Nominee” means the Harvey’s Foundry Trust or if the Harveys
Foundry Trust no longer exists or can no longer lawfully undertake the relevant
obligations contained in this Agreement pursuant to its objects such other
appropriate body or organisation as the Council may nominate and the Developer
may approve for the purposes of the provisions of Clause 10 where such other
body or organisation includes in its objects the promotion of cultural and historic
and education purposes within Hayle Town and the surrounding area.
“Default Terms” means the transfer of Affordable Housing Land at Market Value
(but subject to its designation as Affordable Housing Land including the provisions
of Clause 5.1.10) with full title guarantee free from any encumbrances and other
obligations and such Affordable Housing Land to have the benefit of full
unrestricted rights of access over any relevant access road to be built to a standard
capable of adoption by the Council in its capacity as highway authority from the
boundary of the Affordable Housing Land to any relevant adopted highway (and
vice versa) and full unrestricted rights for all services and conducting media and
drains or sewers to be laid and constructed to such Affordable Housing Land to a
standard capable of adoption by the respective service providers along with
completed services to the boundary of the Affordable Housing Land.
“Detailed Planning Permission” means planning permission granted by the
Council or the Secretary of State for Communities and Local Government pursuant
to the planning application made on behalf of Camborne Pool Redruth
Regeneration Limited and Hayle Harbour Management Limited on 23 December
2008 and bearing reference 08-1721 P.
“Development” means the redevelopment of Hayle harbour and land to north and
north east to provide a mixed use development incorporating retail space, business
space, residential, general industrial, storage and distribution, creation of marina
and commercial harbour and associated access works.
“Development Area(s)” means the Development Area (s) as determined in
accordance with Condition 2.

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“Development Area Energy Strategy” means the strategy to minimise carbon
emissions from the Development to be submitted by the Developer in accordance
with Clause 13.
“Development Area Travel Plan” means a sustainable travel plan including a
programme for implementation submitted in accordance with Clause 9.1 the
objective of which is to reduce car movements on and off the Site and which shall
include the measures identified in the Framework Travel Plan, and in particular:(a)

The appointment of a travel plan co-ordinator.

(b)

The identification of an appropriate target for trip reduction and modal
shift for that Development Area

(c)

The methods to be employed to meet these targets

(d)

The mechanisms for monitoring and review subject to the agreed timescale
or timetable for monitoring within each Development Area Travel Plan

(e)

The mechanisms for reporting

(f)

The remedial strategy and mitigation measures to be applied as identified
in the Framework Travel Plan (as the toolkit of travel planning measures)
in the event that targets are not met

(g)

Implementation of the Development Area Travel Plan to an agreed
timescale or timetable and its operation thereafter

(h)

Mechanisms to secure variations to the Development Area Travel Plan
following monitoring and reviews

“Disposed” means (unless specified otherwise) transfer of the freehold interest or
the grant of a lease for a minimum period of 99 years commencing on the date of
the grant of the lease and “Disposal” shall be construed accordingly.
“Dispute Resolution Procedure” means the procedure set out in Schedule 3
“Dune Area” means the area shown edged blue on Figure C of Plan 3.
“Dwellings” means the residential units to be provided pursuant to the
Development and includes the Affordable Housing Units and “Dwelling” shall be
construed accordingly.
“East Quay” means that area within the Site shown hatched grey (and so labelled)
on Plan 1.
“EMP” means the Ecological Management Plan to be submitted in accordance with
Clause 11.20.
“Environmental Consultees” means representatives or consultants appointed by
Natural England and the Environment Agency and the Royal Society for the
Protection of Birds and Cornwall’s Living Environment Service (or their statutory
successors).
“Expert” has the meaning assigned in Schedule 3.

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“Fishermen’s Harbour” means the new fishermen’s harbour facilities on North
Quay to be provided pursuant to the Development.
“Foundry Yard Car Park” means the area shown hatched dark green (and so
labelled) on Plan 1.
“Foundry Junction” means the junction of the B3301 with the B3302 in Hayle the
location of which is indicated on Plan 1.
“Framework Travel Plan” means the framework travel plan submitted in support
of the Application with amendments as requested by the Council the final version of
which is dated August 2009 and is annexed to this Agreement.
“Goonvean Engine” means the historic engine structure known as the Goonvean
Engine
“Goonvean Engine Site” means the site for the display of the Goonvean Engine
as identified by the Developer pursuant to Clause 10
“Harbour Arm” means the harbour arm that will extend from the end of North
Quay into the harbour and will enclose the Fishermen’s Harbour
“Harbour Revision Order” means any order(s) made pursuant to the Hayle
Harbour Act 1989 necessary to procure the delivery of the Pedestrian Bridge
“Harvey Towans Car Park” means the existing car park shown hatched yellow
on Plan 1.
“Hayle Harbour Development Framework and Design Codes” means the
document appended to this Agreement so titled and dated September 2009.
“Hayle Town” means the area shown edged black on Plan 2
“Hilltop” means that area of the Site shown hatched orange (and so labelled) on
Plan 1.
“Hilltop Car Park” means the car park/boat store to be constructed as part of the
development and shown edged red on Plan 4
“Indexation” means the adjustment of the relevant financial sum referred to in
this Agreement from the date of this Agreement to the date of payment by
applying the following formula:
A x B / C = D where:
A = the sum specified in this Agreement in pounds sterling
B = the figure shown in the BC Index for the latest period prior to the date on
which the sum concerned is to be paid.
C = the figure shown in the BC Index for the latest period prior to the date of this
Agreement
D = the recalculated sum in pounds sterling applying under this Agreement
Provided that if the BC Index becomes no longer maintained the said formula shall
be applied mutatis mutandis (so far as concerns periods after it ceases to be so

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maintained) by reference to such other similar publication or index as may be
agreed from time to time by the parties to this Agreement
“Intermediate Units” means “Intermediate affordable housing” as defined in
Planning Policy Statement 3 (2006) or any replacement Government guidance or
legislation and includes but is not limited to, intermediate rented, discounted sale,
shared equity and shared ownership.
“Marina” means the marina proposed as part of the Development and referred to
in the Application.
“Market Housing Units” means those Dwellings to be made available for sale or
leased on the open market and excludes the Affordable Housing Units and
“Market Housing Unit” shall be construed accordingly.
“Market Value” means the estimated amount for which the relevant land should
exchange on the date of valuation (being the date of agreement of the Market
Value by the parties or the date of determination by an Expert) between a willing
seller and a willing buyer in an arm’s length transaction after proper marketing
wherein the parties had acted knowledgeably prudently and without compulsion
(and for the avoidance of doubt this definition shall not apply to the term “Open
Market Value” as defined in Schedule 1).
“Necessary Consents” means all consents, permissions, easements, licences and
rights obtainable from the Council or any other third party, necessary and sufficient
to procure the delivery and completion of the Pedestrian Bridge.
“Necessary Consents Open Market Value” means the estimated value for
obtaining any Necessary Consent:
(a)

based on existing use value,

(b)

on the date of valuation between a willing buyer and a willing seller in an
arm's length transaction,

(c)

after proper marketing wherein the parties had acted knowledgeably,
prudently and without compulsion,

(d)

in the absence of the Planning Permission and/or any other permission for
similar development of the Site, and

(e)

disregarding any value attributable to any share of development value
associated with the Planning Permission (for the avoidance of doubt, for
the purposes of this Agreement, ‘Necessary Consents Open Market Value’
should disregard (amongst other things) any value or uplift which is
attributable to what is known as ransom value),
assuming that the buyer is granted all rights in that consent necessary for
the provision of the relevant matters the subject of that consent.

“North Quay” means that area within the Site shown hatched purple (and so
labelled) on Plan 1.
“Occupation” means the physical use of land or buildings within the Development
but not including occupation of any such land or buildings for the purposes of
construction or fitting out or occupation of a marketing or display suite or facility or

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occupation in relation to security operations and “Occupy” “Occupants”
“Occupying” and “Occupied” shall be construed accordingly.
“Onerous Terms” means any term or contractual provision of a consent sought
and/or completed for the provision of the Pedestrian Bridge which:
(a)

provides for consideration to be paid for entering into the consent, and
that consideration is in excess of the Necessary Consents Open Market
Value by more than a de minimis or non-material amount (as determined
pursuant to clause 21.9(Dispute Resolution), or

(b)

purports to have Termination Rights to the party consenting with the
Developer, and those rights have been exercised.

“Parameter Plan” means the plan and schedule appended to this Agreement and
so marked.
“Pattern Building” means the former pattern shop associated with Harvey’s
Foundry the location of which is shown shaded pink and edged red on Plan 5.
“Pedestrian Bridge” means a pedestrian bridge to be provided from South Quay
to East Quay or from South Quay to Penpol Terrace
“Pedestrian Bridge Sum” means the estimated costs of the provision of the
Pedestrian Bridge by the Council including the costs of acquiring any necessary
rights to construct the Pedestrian Bridge and any reasonable legal costs associated
with such acquisition
“Permitted Closures” means temporary closure of any Public Access Area or any
part thereof in the following circumstances:
(a)

with the prior approval of the Council where the Council is satisfied that
such temporary closure is necessary in the interests of public safety or is
required for the purposes of essential maintenance, repair, cleansing,
renewal or resurfacing works within the Public Access Area in question or
for any other reason or proper purpose;

(b)

with the prior approval of the Council where the Council is satisfied that
such temporary closure is necessary for the purposes of carrying out works
for construction (including development or redevelopment or for the
placing or replacing of underground services) on the Site or adjoining land;

(c)

temporary closure in the case of emergency where such closure is
necessary in the interests of public safety or otherwise for reasons of
public safety;

(d)

closure for a maximum of one day per year to assert rights or
proprietorship preventing public rights from coming into being by means of
prescription or other process of law; and

(e)

where permitted or required by the Hayle Harbour Master pursuant to by
any Hayle Harbour Byelaw from time to time in force.

“Phase A Works” means the removal of existing materials from the top of the
existing Carnsew Sluice down to the existing ground level as more particularly
described at Schedule 4 to this Agreement

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“Phase B Works” means the exposure of the existing timber mitre gates that are
located in the second Carnsew Sluice as more particularly described at Schedule 4
to this Agreement
“Phasing Schedule” means a schedule to be submitted with any Affordable
Housing Scheme pursuant to Clauses 5.1.2 and 5.1.3
“Photographic Record” means the photographic record (reference number
007838 Hayle Harbour Job No. 024435 June 2010 Rev 02) of the harbour walls
within the Site contained within the Quay Walls Survey Report as appended to this
Agreement.
“Plan 1” means the plan annexed to this Agreement and so marked.
“Plan 2” means the plan annexed to this Agreement and so marked.
“Plan 3” means the plan annexed to this Agreement and so marked.
“Plan 4” means the plan annexed to this Agreement and so marked.
“Plan 5” means the Plan annexed to this Agreement and so marked.
“Planning Permission” means planning permission granted by the Council in
respect of the Application
“Practical Completion” means the date of issue of a Certification of Practical
Completion pursuant to a building contract or contracts in respect of the relevant
part of the Development and “Practically Complete” and “Practically
Completed” shall be construed accordingly.
“Public Access Area” means any of the areas identified as such pursuant to
Clause 10.1.
“Quay Walls Survey Report” means the survey of the harbour walls within the
Site dated June 2010 and annexed to this Agreement.
“Renewables Business Park” means the area of Class B1, B2, B8 or higher
education use to be constructed upon North Quay pursuant to the Planning
Permission.
“Reserved Matters” means those matters to be submitted for approval by the
Council pursuant to Condition 1 and “Reserved Matters Application” shall be
construed accordingly.
“Reserved Matters Area” means that part of the Development which is included
in any Reserved Matters Application.
“Riviere Fields” means that part of the Site hatched light green (and so labelled)
on Plan 1.
“Riviere Dune Grassland Restoration Area” means the area for dune
grassland habitat restoration and/or creation in accordance with Clause 11.4 and
which is shown edged red on Figure A of Plan 3.
“Sea Buckthorn Area” means the area for the management of sea buckthorn in
accordance with Clause 11.6 as shown edged purple on Figure B of Plan 3.

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“Site” means the site of the Development as shown shaded blue on the Site Plan.
“Site Plan” means the plan so marked and annexed to this Agreement.
“Sluicing Report” means a report to be undertaken by the Developer in
consultation with the Council which shall detail:
(a)

the delivery proposals and options for the reinstatement of sluicing in
Hayle Harbour including the potential timescales and phasing for the
reinstatement (“the Sluicing Works”) and

(b)

whether any funding, subsidy or grant is available to the Council or to the
Developer which could be utilised to carry out the Sluicing Works

“Social Rented Units” means Affordable Housing Units let on an Affordable Rent
Tenancy and
as defined in Planning Policy Statement 3 (2006) (or any
replacement Government guidance or legislation) as “Social rented housing”
“South Quay” means the area of the Site shown hatched brown (and so labelled)
on Plan 1.
“South Quay Breach” means the existing area of collapse of the South Quay
harbour walls as shown on pages 91 to 94 of the Photographic Record.
“Spalding Report” means the report by Spalding Associates and Aquatonics Ltd
dated 8 December 2008 entitled “Proposals for Habitat Compensation for Hayle
Harbour Development Scheme” and annexed to this Agreement.
“St Erth Park and Ride” means the park and ride facility proposed to be
constructed by the Council to the south of St Erth Railway Station and adjoining
Treloweth Lane.
“Station Access Land” means the land owned by the Developer and shown
hatched dark blue (and so labelled) on Plan 1.
“Strategic Housing Plan” means the Developer’s proposals for delivery of
Affordable Housing Units across the whole Site to include the allocation of units by
Character Area and the principles and strategy for delivery.
“Termination Rights” means any term or contractual provision of a consent
sought and or completed for the provision of the Pedestrian Bridge which purports
to reserve to the party consenting with the Developer ‘step-in’ rights, or a ‘stop
notice’ request, or other form of contractual termination or revocation, with the
effect that the consenting party could permanently prevent the Developer from
exercising or continuing to exercise the rights conferred by that consent.
“Triangular Spit” means that part of the Site shown hatched light blue (and so
labelled) on Plan 1.
“Units Discounted for Sale” means Affordable Housing Units to be sold at a
discount in accordance with Clause 5 and Schedule 1.
“Wave Hub” means the wave power electricity generation station to be located at
the date of this Agreement offshore from St. Ives Head, Cornwall

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“Working Day” means any day (apart from Saturday, Sunday, Christmas Day,
Good Friday and any statutory bank holiday) on which clearing banks in England
are open for the transaction of ordinary business.
1.2

References to any Recital Clause Schedule Paragraph (or any part of them) shall
(unless the context otherwise requires) be references to a recital clause schedule
or paragraph (or any part of any of them) of this Agreement.

1.3

References to any Plan are references to a plan attached to this Agreement.

1.4

References to the masculine gender shall include the feminine gender and vice
versa.

1.5

Unless the context otherwise requires references to the singular shall include the
plural and vice versa.

1.6

Headings are for ease of reference only and are not intended to be construed as
part of this Agreement.

1.7

References to the Developer include and (once the Developer has parted with an
interest in the Application Site or any part of it constitute) references to the
Developer’s successors in title to the Site or any part of it.

1.8

References to the Council include references to any statutory successor to the
Council as local planning authority and as highway authority.

1.9

References to the 1990 Act and to any section of the Act include any re-enactment
of it unless the context otherwise requires.

1.10

Nothing in this Agreement shall unlawfully fetter or restrict the exercise by the
Council as local planning authority or as highway authority of its rights discretions
duties powers or obligations under any statute orders regulations and byelaws.

1.11

No provision of this Agreement shall be interpreted so as unlawfully to fetter the
Council in the exercise of its statutory duties.

1.12

No waiver whether express or implied by the Council of any breach or default in
performing or observing any of the covenants terms or conditions of this
Agreement shall unless evident on the facts constitute a continuing waiver.

2

CONDITIONS PRECEDENT
Save for the provisions of Clauses 1, 3, 10.6 (together with the default provisions
contained in Clause 10.7 to 10.11 inclusive), 10.12 to 10.17 inclusive and 21 which
shall together with this Clause come into effect on the date of this Agreement the
provisions of this Agreement shall be conditional upon the grant of the Planning
Permission and Commencement of the Development or such later date as the
provisions may prescribe

3

STATUTORY PROVISIONS AND INTERESTS BOUND

3.1

This Agreement is made pursuant to section 106 of the 1990 Act and all other
powers so enabling the parties hereto to the intent that the obligations on the part
of the Developer shall be binding upon its interests in the Site and those of its
successors in title to the Site.

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3.2

The obligations on the part of the Developer as set out in this Agreement shall be
enforceable by the Council.

4

COVENANTS

4.1

The Developer hereby covenants with the Council to observe and perform the
obligations imposed upon it as contained within this Agreement.

4.2

The Council hereby covenants with the Developer to observe and perform the
obligations imposed upon it as contained within this Agreement and that where any
sums are paid to the Council under the terms of this Agreement such sums shall
not be expended otherwise than for the purpose identified in this Agreement.

5

AFFORDABLE HOUSING

5.1

The Developer hereby covenants with the Council that

5.1.1

prior to or with the first Reserved Matters Application which includes Affordable
Housing Units it will submit to the Council for its approval the Strategic Housing
Plan;

5.1.2

prior to or with any Reserved Matters Application which includes Affordable
Housing Units it will submit to the Council for its approval an Affordable Housing
Scheme for that Reserved Matters Area;

5.1.3

if any Affordable Housing Scheme fails to conform with the Strategic Housing Plan
the Developer shall also submit with the Affordable Housing Scheme an explanation
as to the lack of conformity and where necessary shall submit a revised Strategic
Housing Plan to the Council for its approval;

5.1.4

upon submission of any Affordable Housing Scheme it will submit to the Council for
its approval a Phasing Schedule which identifies the Affordable Housing Units
generally in accordance with that Affordable Housing Scheme and complies with
Clause 5.1.3.

5.1.5

the Developer shall ensure that all Affordable Housing Units in any Reserved
Matters Area are provided in accordance with the relevant approved Affordable
Housing Scheme and in accordance with the following trigger points for the
Development as a whole:

5.1.6

No more than the
following number
of Market Housing
Units

To be occupied
until the following
number
of
Affordable
Housing Units are
completed

Total
Dwellings

Percentage of
Affordable
Housing Units
per total

208 units (24.4%)

42

250

17%

374 units (43.8%)

76

450

17%

540 units (63.2%)

110

650

17%

623 units (73.0%)

127

750

17%

706 units (82.7%)

144

850

17%

Notwithstanding Clause 5.1.3, phases of the Development which exceed 850
Dwellings in total shall be required to include Affordable Housing Units so that the

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overall provision of Affordable Housing Units is no less than 17% of the total of
number of Dwellings until a total of 175 Affordable Housing Units has been
provided. Thereafter no additional Affordable Housing Units will be required.
5.1.7

5.1.8

5.1.9

In the event that sufficient Social Housing Grant is secured, the tenure split for the
Affordable Housing Scheme shall, unless the Council otherwise agrees, comprise
the following:-

Tenure

% of total
units

1 bed flats

2 bed
flats/houses

3/4 bed
flats/house
s(up to
50% of
these can
be flats).**

Social Rented
Units

No less than
9% of total
Dwellings

5%

75%

20%

Intermediate
Units

No less than
8% of total
Dwellings

20%

70%

10%

In the event that no or insufficient Social Housing Grant is secured, the tenure split
for the Affordable Housing Scheme shall, unless the Council otherwise agrees
comprise the following:Tenure

% of total
units

1 bed flats

2 bed
flats/houses

3/4 bed
flats/house
s (up to
50% of
these can
be flats).**

Social Rented
Units

No less than
4.25% of total
Dwellings

5%

75%

20%

Intermediate
Units

No less than
12.75% of
total
Dwellings

20%

70%

10%

The Developer shall use reasonable endeavours to obtain sufficient Social Housing
Grant to achieve the Affordable Housing mix set out in Clause 5.1.7 and before
submitting any application for Social Housing Grant the Developer shall submit such
application to the Council for its approval for the purpose of identifying the
sufficiency of funding as referred to in Clauses 5.1.7 and the following provisions
shall then apply:
(a)

The Council shall respond to such submission by the Developer within 10
Working Days and if the Council shall fail to respond within such period
then the Developer’s Social Housing Grant application and its identification
of sufficiency for the purposes of Clauses 5.1.7 shall be deemed to have
been approved by the Council; and

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(b)

In the event that the Council fails to approve the Developer’s submission
then the Developer may refer the matter for Expert determination pursuant
to Clause 21.9 and the period for determination by the Expert pursuant to
paragraph 6 of Part 2 of Schedule 3 shall be 10 Working Days from his or
her appointment.

5.1.10

Subject to the provisions of Clause 5.1.13 the Developer shall not develop or permit
to be developed any Affordable Housing Land identified in any Affordable Housing
Scheme other than for the purposes of the provision of Affordable Housing.

5.1.11

If the Developer serves notice upon the Council that it has despite using reasonable
endeavours been unable to reach agreement with an Affordable Housing Provider
to either acquire the Affordable Housing Units or the Affordable Housing Land
identified for that Reserved Matters Area (such notice to state the terms of offers
made to Affordable Housing Providers) the Developer may (where the Default
Terms have been offered to Affordable Housing Providers) or shall (where terms
other than the Default Terms have been offered to Affordable Housing Providers)
with any such notice offer (by notice in writing) the relevant Affordable Housing
Land to the Council on the Default Terms or such other terms as the parties may
agree.

5.1.12

Following the service of any offer which the Developer is obliged to make to
Council pursuant to Clause 5.1.11 the Developer and the Council shall
reasonable endeavours to reach agreement and complete the transfer of
Affordable Housing Land within a period of 3 months from the date of
Developer’s offer served pursuant to Clause 5.1.11.

5.1.13

If:

the
use
the
the

(a)

the Developer is not obliged to and does not make an offer to the Council
pursuant to Clause 5.1.11; or

(b)

if the Council declines any offer made pursuant to Clause 5.1.11; or

(c)

if the Council accepts any such offer but the transfer of the Affordable
Housing Land is not completed within the said 3 month period

the Developer may develop the sites identified for Affordable Housing or Affordable
Housing Land on that Reserved Matters Area for Units Discounted for Sale
PROVIDED THAT
(d)

Units Discounted for Sale constructed on such sites or land will be
marketed to Qualifying Persons for a period commencing on
Commencement of construction of such Unit until one month following
completion of such Unit (which procedure shall for the avoidance of doubt
be in lieu of the procedure set out in Paragraph 2 of Schedule 1;

(e)

In the event that any such Unit Discounted for Sale is Disposed of to a
Qualifying Person then the provisions of Paragraphs 2 and 4 of Schedule 1
shall thereafter apply to such Unit Discounted for Sale;

(f)

In the event that any such Units marketed in accordance with (d) of this
Clause remain unsold after the said period referred to in Clause 5.1.13 (d)
then the Developer may Dispose of such Units to persons other than
Qualifying Persons without any constraint on the price to be paid for such
Unit and the Developer shall within 20 Working Days of such Disposal
serve notice on the Council stating the date of Disposal and the price paid

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for such Unit and shall with such notice make payment to the Council of
the Affordable Housing Sum and stating the Affordable Housing Sum Cost
and the calculation of such sum. If the Council does not agree the
Affordable Housing Sum Cost it shall within 20 Working Days serve notice
on the Developer of what it considers to be the appropriate Affordable
Housing Sum Cost. The Developer shall within 20 Working Days of receipt
of such notice either pay the difference between the Council and
Developer’s calculations of the Affordable Housing Sum Cost to the Council
or refer the matter to an Expert for determination in accordance with
Clause 21.9. Any Units Discounted for Sale sold in accordance with Clause
5.1.13 (f) shall upon Disposal cease to be Affordable Housing Units and
shall not be required to conform with the restrictions on ownership and
occupation referred to in this Agreement.
(g)

Any Units Discounted for Sale sold in accordance with Clause 5.1.13 (f)
shall upon Disposal cease to be Affordable Housing Units and shall not be
required to conform with the restrictions on ownership and occupation
referred to in this Agreement.

(h)

In any event where this Clause 5.1.13 applies then for the purposes of
Clause 5.1 the Affordable Housing Units for that Reserved Matters Area
(and in respect of the overall thresholds referred to in Clause 5.1.3) shall
be deemed to have been delivered.

5.2

The Developer may provide not more than 8.5% of the Affordable Housing Units as
Units Discounted for Sale save where Clause 5.1.10 applies

5.3

All Affordable Housing Units will be to a constructed to the Appropriate Standard.

5.4

Without prejudice to the generality of the Affordable Housing Scheme the Council
agrees with the Developer that the Developer may elect to provide no Affordable
Housing Units or Affordable Housing Land on Hilltop.

5.5

The Council and the Developer covenant with each other to undertake their
respective obligations for the provision of Affordable Housing as set out in
Schedule 1.

5.6

The Council covenants with the Developer that it shall not expend any sums paid
by the Developer pursuant to Clause 5.1.13 (f) save for the purposes of providing
Affordable Housing in the Primary Area or the Secondary Area (as those terms are
defined in Schedule 1) and in the event that such sums or any part of them are
unexpended by the fifth anniversary of payment then the Council will repay any
such unexpended sum to the Developer (meaning in this case the party who made
payment) upon the fifth anniversary of payment.

6

SUSTAINABLE TRANSPORT

6.1

The Developer will pay the following contributions (subject to Indexation) to the
Council as follows:

6.1.1

£15,000 for improvements to walking routes within Hayle Town prior to the
Occupation of any building permitted by the Planning Permission;

6.1.2

£20,000 for improvements to cycle infrastructure within Hayle Town prior to the
Occupation of any building permitted by the Planning Permission; and

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6.1.3

£40,000 for improved platform accessibility and Station facilities at Hayle Railway
Station prior to the Occupation of any building permitted by the Planning
Permission.

6.2

The Developer will pay the following contributions to the Council prior to the
Occupation of the 51st Dwelling or 1000 square metres of non-residential gross
floor space (whichever occurs first) or at some date or threshold of Development
which may be proposed by the Council (which shall be no earlier than the
Occupation of the 51st Dwelling or 1000 square metres of non-residential gross
floor space whichever occurs first):

6.2.1

£25,000 for bus stop infrastructure improvements in Hayle Town; and

6.2.2

£50,000 for St Erth Park and Ride or towards other sustainable transport measures
which the Council considers (in consultation with the Developer) to be reasonably
related to the Development and which would achieve the same or similar purpose

6.3

The Developer will pay to the Council the reasonable costs of further transport
improvements up to and not exceeding £50,000 as may be identified in the surveys
pursuant to the Development Area Travel Plans following Occupation of 95% of the
Development such payment or payments to be paid following receipt of a notice in
writing from the Council identifying such further improvements and their estimated
costs.

6.4

The Developer will pay to the Council a contribution to a “Hopper” bus service (or
towards other sustainable transport measures which the Council considers (in
consultation with the Developer) to be reasonably related to the Development and
which would achieve the same or similar purpose) of £600,000 by way of five
annual instalments of £120,000 commencing either:

6.4.1

On the second anniversary of the Occupation of the first Dwelling; or

6.4.2

Within 20 Working Days of the receipt of a notice from the Council requiring the
payment of such sum, which notice shall not be served by the Council before:
(a)

first Occupation of Dwellings on Hilltop or Riviere Fields; or

(b)

the Practical Completion and opening to all traffic of the proposed road and
junctions from North Quay to Riviere Fields and on to Phillack,

whichever is the earlier event.
6.5

Following payment of the first instalment of the above the Council will within 20
Working Days of the end of each calendar year submit to the Developer details of
the expenditure and usage of the sums referred to in Clause 6.4

6.6

The Developer will reserve the Station Access Land and will not for a period of
fifteen years from the date the Development is Commenced develop or permit the
Station Access Land to be developed save in accordance with Clause 6.7.

6.7

If the Developer receives notice from the Council, such notice to be served within
the fifteen year period referred to in Clause 6.6 and accompanied by evidence of a
scheme and scheme funding for a new access to Hayle Station (which may include
landscape and/or public open space proposals) on the Station Access Land, then
upon approval of such scheme by the Developer it will transfer the Station Access
Land (or such part of it that shall be required for the said scheme) to the Council at
nil consideration.

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6.8

The Council covenants with the Developer that if any of the sums paid by the
Developer as referred to in this Clause 6 or any part of them shall remain
unexpended by the fifth anniversary of each respective payment then the Council
will repay any such unexpended sum to the Developer (meaning in this case the
party who made payment) upon the fifth anniversary of the relevant payment and
each of them.

7

HIGHWAY WORKS

Footway to Phillack
7.1

The Developer shall not open or permit to be opened the proposed road from
Riviere Fields through to Phillack to any traffic (except emergency vehicles as
referred to in Condition 29) until a footway giving access from Riviere Fields to the
junction at Churchtown Road/Phillack has been Practically Completed and is
available for public use.

Foundry Junction
7.2

The Developer will monitor background traffic flows and traffic flows which arise
from the Development at the Foundry Junction in accordance with a methodology
agreed with the Council.

7.3

Upon the count of motor vehicles arriving at and departing from the Development
exceeding 500 trips in any hour the Developer will undertake a review of traffic at
the Foundry Junction and submit details of such review to the Council such review
to be undertaken within any timeframe set by the methodology proposed by the
Developer and agreed by the Council.

7.4

If following any review referred to in Clause 7.3 the Council reasonably decides
that the impact on the Foundry Junction of traffic arising from the Development is
causing an unacceptable impact (in terms of safety or congestion or impact on
amenity of residents of Hayle) then the Council may propose to the Developer for
its approval restrictions on the Occupation of such parts of the Development which
have not at the review date been commenced and mitigation measures to address
such unacceptable impact in lieu of restrictions on Occupation.

7.5

If the Developer so elects it will pay to the Council (in lieu of any proposed
restrictions on the Occupation of such parts of the Development which have not at
the review date been commenced) either:

7.5.1

the reasonable cost of implementation of such agreed mitigation measures (such
sum not to exceed £75,000 subject to Indexation);or

7.5.2

such reasonable contribution towards the implementation of a wider strategic traffic
scheme which includes directly or indirectly objectives which will reduce
unacceptable impact at the Foundry Junction such reasonable contribution to be
proportionate to the impact of traffic arising from the Development on the Foundry
Junction and shall not in any event exceed £70,000 subject to Indexation;
and upon payment of such sum the further Occupation of the Development will not
be restricted pursuant to the provisions of Clause 7.4.

Repayment
7.6

The Council covenants with the Developer that if the sum paid by the Developer for
mitigation measures at the Foundry Junction or any part of it shall remain

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unexpended by the fifth anniversary of such payment then the Council will repay
any such unexpended sum to the Developer (meaning in this case the party who
made payment) upon the fifth anniversary of such payment.
8

PARKING

8.1

Until the use of car parking spaces is permitted in accordance with the provisions of
this Clause the Hilltop Car Park shall be restricted to use as a construction
compound and boat storage area. The car parking spaces shall be phased in as
follows:

8.1.1

100 spaces upon the removal of the Harvey Towans Car Park;

8.1.2

25 spaces on completion of the Renewables Business Park;

8.1.3

20 spaces on first Occupation of Dwellings on Hilltop;

8.1.4

100 spaces on first Occupation of Dwellings on North Quay;

8.1.5

180 spaces on completion of the Marina or if the Marina is constructed in phases
upon completion of the first phase of the Marina; and

8.1.6

31 spaces on first Occupation of commercial/recreational space on North Quay
(excluding residential use).

8.2

The management of any public car parking provided within the Development
pursuant to the Planning Permission shall be undertaken so as not to conflict with
any Council planning policy in force at the relevant time which has as its objective
the management and use of public car parking within Hayle Town.

8.3

Upon or prior to the submission of Reserved Matters for any development on South
Quay the Developer will submit to the Council a re-assessment of the parking need
associated with the South Quay development. This re-assessment will be based on
reasonable commercial need but in the context of a requirement upon the
Developer to use reasonable endeavours to keep parking for the Development to a
level which is consistent with current policy and practice and compatible with public
transport provision in Hayle Town.

9

SUSTAINABLE TRANSPORT PLAN

9.1

Upon submission of Reserved Matters for any Development Area the Developer will
submit for approval by the Council in consultation with the Highways Agency a
Development Area Travel Plan for that Development Area including construction of
it in accordance with the Framework Travel Plan.

9.2

No Development shall take place in that Development Area until such time as the
Development Area Travel Plan has been approved by the Council and each
Development Area shall be constructed and operated in accordance with the
relevant Development Area Travel Plan.

10

GREEN SPACE AND PUBLIC REALM

Submission of Plans/Details
10.1

Prior to Commencement of each Development Area, the Developer shall submit to
the Council for approval details of the public realm/green space (if any) as a Public
Access Area or Areas to be provided within that Development Area including details

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of the equipment/facilities (if any) to be provided within such Development Area.
Such details shall include triggers and thresholds of development to secure delivery
of the Public Access Area or Areas within that Development Area. For the avoidance
of doubt the Public Access Area or Areas shall exclude private gardens or spaces
where it is intended that use is restricted to residents or employees of premises
within the Development.
10.2

No Development shall take place in that Development Area until such time as the
details submitted pursuant to Clause 10.1 have been approved by the Council and
each Development Area shall be constructed and operated in accordance with the
details approved pursuant to Clause 10.1.

Physical Works
10.3

The Developer shall not Occupy or permit to be Occupied more than 100 Dwellings
or 1,000 square metres of any non-residential building or buildings constructed
pursuant to the Development on North Quay and/or Hilltop and/or Riviere Fields
until the repairs to the harbour walls of North Quay and East Quay as permitted by
the Detailed Planning Permission and any listed building consent which may be
required have been completed as certified by the employer’s agent pursuant to the
contract for repairs.

10.4

Subject to the provisions of Clause 10.5 the Developer shall not Occupy or permit
to be Occupied more than 350 Dwellings on North Quay, Hilltop or Riviere Fields
collectively until it has undertaken and completed works to repair the South Quay
Breach in accordance with the requirements of any necessary Listed Building
Consent and as certified by the employer’s agent pursuant to the contract for
repairs PROVIDED ALWAYS THAT not more than 150 Dwellings on Riviere Fields
may be Occupied until this obligation has been complied with.

10.5

The Developer shall not Occupy or permit to be Occupied any building or buildings
constructed pursuant to the Development on South Quay or any part of it until the
repairs to the harbour walls of South Quay as set out in the Quay Walls Survey
Report (which for the avoidance of doubt includes the South Quay Breach) have
been completed as certified by the employer’s agent pursuant to the contract for
repairs.

10.6

Until completion of repairs to the harbour walls referred to in Clauses 10.3 and 10.5
the Developer shall maintain them in the condition as shown on the Photographic
Record and will take all reasonable steps to prevent further deterioration.

10.7

In the event of breach of the obligation set out in Clause 10.6 the Council may
execute any repairs or other works to maintain the condition of the harbour walls
or any part of them by its own employees or contractors and recover its reasonable
and proper costs as reasonably and properly certified by the Head of Planning and
Regeneration.

10.8

Before starting any works under Clause 10.7 the Council shall first give to the
Developer 20 Working Days’ written notice or (in the event of there being a
significant danger to the public) such lesser period as may in the circumstances be
reasonable of its intention so to do.

10.9

Any notice served under Clause 10.8 shall specify the period of the notice (“the
notice period”) the extent of the work which the Council proposes to carry out and
full details of all matters in respect of which it is alleged the Developer’s obligations
under Clause 10.6 have not been carried out in accordance with the terms of this
Agreement.

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10.10

If before the expiry of the notice period the Developer serves written notice upon
the Council either:

10.10.1

that the Developer intends diligently to execute the works specified in the Council’s
notice served in accordance with Clauses 10.8 and 10.9; or

10.10.2

that the Developer disputes
obligations under Clause 10.6
not reasonable in the context
such breach is to be remedied

the existence of any breach of the Developer’s
and/or that the works proposed by the Council are
of any such breach and/or that the period in which
is not reasonable.

then the Council shall not be entitled to execute such works as specified in that
notice unless in the case of a notice served under Clause 10.10.1 the Developer
then fails to execute those works or in the case of a notice served under
Clause 10.10.2 the Developer withdraws its notice or the Expert decides pursuant
to the Dispute Resolution Procedure that there has been a breach of the
Developer’s obligations pursuant to Clause 10.6 and that the works specified in the
Council’s notice served pursuant to Clauses 10.8 and 10.9 and the period allowed
for compliance are reasonable in the context of that breach.
10.11

If the parties cannot agree on the existence of the breach and/or the steps to
remedy it and/or the period within which any necessary works are to be
undertaken either party may refer the matter to the Dispute Resolution procedure.

Pattern Building
10.12

At any time prior to the expiry of three years from the date of this Agreement the
Council may serve notice on the Developer:
(a)

accompanied by
building consent
Pattern Building
Shed Land and
Scheme; and

evidence that it has detailed planning permission/listed
and a detailed design for an Appropriate Scheme for the
to include, if the Council’s notice so requires, the Cart
funding to Commence and complete that Appropriate

(b)

requiring the Developer to transfer the Pattern Building and, if the
Council’s notice so requires, the Cart Shed Land to the Council or the
Council’s Nominee; and

(c)

in the event that the Council’s notice served pursuant to this clause
includes the Cart Shed Land the Council’s estimate of the Market Value of
the Cart Shed Land.

10.13

Within 21 days of receipt of such notice, the Developer may require the Council to
provide further information in connection with the Appropriate Scheme, the
Council’s Nominee and the funding of the Appropriate Scheme, in order to enable
the Developer to consider the Council’s proposals and to make a decision under
Clause 10.15.

10.14

In the event that the Council’s notice pursuant to Clause 10.12 includes the Cart
Shed Land the Developer shall within 21 days of receipt of such notice confirm its
agreement of the Council’s estimate of the Market Value of the Cart Shed Land or
alternatively indicate its disagreement of such estimate and shall set out the
Developer’s own estimate of such Market Value

10.15

Within 21 days of receipt of the Council’s notice under Clause 10.12 or, if the
Developer shall exercise its rights under Clause 10.13, 21 days after the provision

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of information satisfactory to the Developer, acting reasonably or, if the Council’s
notice served pursuant to Clause 10.12 includes the Cart Shed Land within 21 days
of agreement of the Market Value of the Cart Shed Land or determination of its
Market Value by an expert pursuant to Clause 21.9 (whichever is the last event),
the Developer will confirm whether or not it approves the proposed Appropriate
Scheme, the Council’s Nominee, the funding and the arrangements for its
provision. Any such approval may be granted subject to reasonable conditions.
10.16

Upon the grant of the Developer’s approval under Clause 10.15, the Developer will
transfer and the Council or the Council’s Nominee will accept a transfer of the
Pattern Building and, if required, the Cart Shed Land, on such terms as the
Developer shall reasonably require. Those terms will include the following:
(a)

completion shall occur as soon as reasonably practicable after the terms
have been agreed;

(b)

the Transfer will be for nil consideration in respect of the Pattern Building;

(c)

the Transfer will be for the agreed or Expert-determined Market Value of
the Cart Shed Land, if relevant;

(d)

the Council or the Council’s Nominee will be obliged to carry out the
Approved Scheme in a good and workmanlike manner with good and
proper materials and in accordance with a good design, and in accordance
with such other obligations as the Developer shall reasonably require, and
to complete the Approved Scheme within four years from the date of
transfer of the Pattern Building and, if relevant, the Cart Shed Land;

(e)

if the Approved Scheme has not been Commenced, with a demonstrable
intention to proceed continuously therewith until its completion, within
three years from the date of transfer of the Pattern Building and, if
relevant, the Cart Shed Land, the Developer will have an option, at any
time thereafter but before the Approved Scheme has been Commenced, to
reacquire the land transferred pursuant to Clause 10.16 on 14 days’ notice
at nil consideration in respect of the Pattern Building and for the price paid
by the Council or the Council’s Nominee on acquisition in respect of the
Cart Shed Land;

(f)

the transfer of the Pattern Building and, if relevant, the Cart Shed Land,
will contain a restrictive covenant prohibiting the use of the Pattern
Building and, if relevant the Cart Shed Land otherwise than for purposes
associated with tourism or as an office/business centre.

(g)

if the Council or the Council’s Nominee acquire the Pattern Building and, if
required, the Cart Shed Land pursuant to this clause and wishes to dispose
of all or any of the land so transferred , whether by way of transfer, lease
or otherwise, before completion of the Approved Scheme, then the Council
or the Council’s Nominee shall serve notice of such intended disposal and
Developer shall have a right of pre-emption, exercisable within 21 days of
receipt of notice by the Developer of the proposed disposal, for nil
consideration in respect of the Pattern Building and for the price paid by
the Council or the Council’s Nominee on acquisition in respect of the Cart
Shed Land with completion to occur within 21 days after the exercise of
the right of pre-emption PROVIDED ALWAYS and for the avoidance of
doubt that this right of pre-emption shall not apply to any agreements for
lease of individual units within the Pattern Building and, if relevant,
affecting the Cart Shed Land which may be entered into by the Council or

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the Council’s Nominee before completion of the Approved Scheme which
agreements are to take effect once the Approved Scheme has been
completed.
10.17

Any dispute or difference between the parties as to the terms under Clause 10.12
to 10.16 shall be referred to an Expert for determination in accordance with Clause
21.9.

Goonvean Engine
10.18

Prior to Commencement of Development the Developer will identify to the Council
by written notice a site not exceeding 207 square metres on South Quay or
Foundry Car Park for the display of the Goonvean Engine with associated artefacts.

10.19

At any time prior to the expiry of three years from the date of service of the
Developer’s notice pursuant to Clause 10.18 the Council or the Council’s Nominee
may serve notice on the Developer:
(a)

accompanied by evidence that it has detailed planning permission, listed
building consent (if required) and detailed design (including quality of
materials) for an Appropriate Scheme for the Goonvean Engine display and
funding to Commence and complete that Appropriate Scheme; and

(b)

requiring the Developer to grant a lease or licence of the Goonvean Engine
Site to the Council or the Council’s Nominee.

10.20

Within 21 days of receipt of such notice, the Developer may require the Council to
provide further information in connection with the Appropriate Scheme, the
Council’s Nominee and the funding of the Appropriate Scheme, in order to enable
the Developer to consider the Council’s proposals and to make a decision under
Clause 10.21.

10.21

Within 21 days of receipt of the Council’s notice under Clause 10.19 or, if the
Developer shall exercise its rights under Clause 10.20, 21 days after the provision
of information satisfactory to the Developer, acting reasonably, the Developer will
confirm whether or not it approves the proposed Appropriate Scheme, the Council’s
Nominee, the funding and the arrangements for its provision. Any such approval
may be granted subject to reasonable conditions.

10.22

Upon the grant of the Developer’s approval under Clause 10.21, the Developer will
grant and the Council or the Council’s Nominee will accept a lease or licence (at the
Developer’s discretion but where the proposed term is 50 years or less the
Developer shall not withhold approval on that issue alone) of the Goonvean Engine
Site on such terms as the Developer shall reasonably require. Those terms will
include the following:
(a)

completion shall occur as soon as reasonably practicable after the terms
have been agreed;

(b)

the lease or licence will be for nil consideration;

(c)

if required by the Developer, any lease to be granted shall be a lease in
relation to which the landlord and the tenant agree to exclude the
provisions of sections 24 to 28 of the Landlord and Tenant Act 1954 and, if
the Developer does so require then before completion of such lease or, if
earlier, the proposed tenant’s contractual obligation to enter into such
lease the parties shall duly carry out the requirements of schedules 1 and 2

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of the Regulatory Reform (Business Tenancies) (England and Wales) Order
2003 to render their agreement valid;
(d)

the Council or the Council’s Nominee will be obliged to carry out the
Approved Scheme in a good and workmanlike manner with good and
proper materials and in accordance with a good design, and in accordance
with such other obligations as the Developer shall reasonably require, and
to complete the Approved Scheme within twenty-four months from the
date of lease or licence of the Goonvean Engine Site;

(d)

if the Approved Scheme has not been Commenced, with a demonstrable
intention to proceed continuously therewith until its completion, within the
said twenty four month period the Developer will have an option, at any
time thereafter but before the Approved Scheme has been Commenced, to
reacquire the Goonvean Engine Site on 14 days’ notice at nil consideration;

(e)

the lessee or licensee shall be responsible for maintaining the Goonvean
Engine display and the Goonvean Engine Site in good condition and the
Developer will have the right to terminate the lease or licence and remove
the Goonvean Engine display if the Council or the Council’s Nominee is in
breach of that requirement;

Management
10.23

With the first Reserved Matters Application for any Development Area of the
Development which includes public realm/green space the Developer will submit a
long term stewardship/management plan for the public realm/green space
including details as to how and by what type of organisation such management and
maintenance will be undertaken and how it is to be funded.

10.24

Where the Developer has identified areas of public realm/green space in
accordance with Clause 10.1 then unless otherwise agreed with the Council the
Developer will permit the general public to have access over such areas subject
only to the Permitted Closures.

10.25

No Occupation shall take place in the relevant Development Area until such time as
the details submitted pursuant to Clause 10.23 have been approved by the Council
and each Development Area shall be operated in accordance with the details
approved pursuant to Clause 10.23.

11

ECOLOGY

Dune Mitigation
11.1

Following Commencement of the Development the Developer will manage the
Dune Area with a view to responding with appropriate management measures to
deal with the impact of increased visitors to the Dune Area which is reasonably
attributable to the Development and will in so doing consult with the Towans
Partnership, or any successor or other organisations with interests in and
responsibilities for dune management in the Hayle area.

11.2

The Developer will serve notice on the Council as to the intended date of
Commencement of development of the Hilltop Car Park not later than 6 months
prior to that intended Commencement date and shall not Commence that
development until 6 months has passed since the service of that notice and the
approval by the Council of the method statement proposals referred to in Clause
11.4 and Clause 11.6 whichever is the latest event.

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11.3

The Developer will pay to the Council.

11.3.1

the sum of £60,000 subject to Indexation prior to Commencement of the Hilltop
Car Park to be held by the Council for measures to address indirect and future
impacts of the Development on the dunes system in the Hayle area; and

11.3.2

the sum of £60,000 subject to Indexation to be paid prior to Occupation of the
101st Dwelling constructed on North Quay and Hilltop and Riviere Fields (or any
combination of the above) to the Council as a contribution to the costs of providing
a dunes officer with responsibility for managing the impact of visitors on the dunes
system in the Hayle area.

11.4

At least 6 months prior to Commencement of construction of the Hilltop Car Park
the Developer will submit method statement proposals including a programme for
the creation and restoration of the dune habitat on the Harveys Towans Car Park
for approval by the Council in consultation with the Environmental Consultees and
upon approval the Developer will implement the approved scheme in accordance
with the approved programme. The details to be submitted will also include
proposals for monitoring and management of the dune habitat on the Harveys
Towans Car Park and the Developer will undertake the
monitoring and
management of that area for a period of 5 years following completion of the
creation and restoration works referred to in this Clause 11.4.

11.5

The Parties hereby agree that the Developer shall not be obliged to expend more
than £231,650 in discharging its obligations (other than monitoring) pursuant to
Clause 11.4 subject to Indexation.

11.6

At least 6 months prior to Commencement of construction of the Hilltop Car Park
the Developer will submit method statement proposals including a programme for
implementation for the clearance and management of sea buckthorn on the Sea
Buckthorn Area for approval by the Council in consultation with the Environmental
Consultees and upon approval the Developer will implement the approved scheme
in accordance with the approved programme. The details to be submitted will also
include proposals for monitoring and management of the Sea Buckthorn Area and
the Developer will undertake the monitoring and management of that area for a
period of 5 years following completion of the creation and restoration works
referred to in this Clause 11.6.

11.7

The Parties hereby agree;-

11.7.1

that the Developer shall not be obliged to expend more than £10,160 in
discharging its obligations pursuant to Clause 11.6 subject to Indexation; and

11.7.2

for the purposes of Clause 11 commencement of construction of the Hilltop Car
Park shall not be deemed to have taken place by reference to commencement of
the construction of roads and paths shown shaded grey on Plan 4.

11.8

Prior to or with the submission of Reserved Matters (or the first such submission)
for Hilltop (other than Reserved Matters relating to roads paths or the installation
of service media within the area of Hilltop) the Developer will submit method
statement proposals including a programme for implementation,
for the
creation/restoration of dune grassland habitat on the Riviere Dune Grassland
Restoration Area for approval by the Council in consultation with the Environmental
Consultees and upon approval will implement the scheme in accordance with the
approved programme. The details to be submitted will also include proposals for
monitoring and management of the new/restored area and the Developer will be
responsible for undertaking monitoring and management of that area for a period

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of 5 years following completion of the creation/restoration works referred to in this
Clause 11.8.
11.9

The Parties hereby agree that the Developer shall not be obliged to expend more
than £426,692 in discharging its obligations (other than monitoring) pursuant to
Clause 11.8 subject to Indexation.

11.10

The Parties hereby agree that the Developer shall not be obliged to expend more
than £43,200 in discharging its monitoring obligations pursuant to Clauses 11.4
and 11.8 subject to Indexation.

Inter Tidal Mitigation
11.11

The Developer will serve notice on the Council as to the intended date of
commencement of works for the removal of Cockle Bank not later than 2 months
prior to that intended commencement date and shall not commence those works
until 2 months has expired since service of that notice.

11.12

No later than 2 months prior to the commencement of works for the removal of the
Cockle Bank the Developer will submit to the Council for approval in consultation
with the Environmental Consultees by way of mitigation or compensation for all
Development-related losses of inter-tidal and sub-tidal habitats its proposals for the
acquisition of land for the creation of new wetland habitat to be located at any of
three sites short-listed in the Spalding Report.

11.13

The Developer shall not commence any works to remove the Cockle Bank until the
Developer has transferred to the Council or its nominee (at no cost to the Council)
the site or sites identified and approved by the Council pursuant to Clause 11.12
and the transfer of such site or sites shall include a restriction of use on the land
transferred to that of the creation and maintenance of a wetland habitat and
associated purposes.

11.14

The Developer shall not be obliged in discharging the obligations contained in
Clauses 11.12 and 11.13 to expend more that £212,000 subject to Indexation and
upon the transfer of the site or sites pursuant to Clause 11.13 the Developer shall
serve upon the Council an account indicating the costs so expended and in the
event that the said costs are less than the sum of £212,000 the Developer will
make the balance of the said sum of £212,000 subject to Indexation available to
the Council for the implementation and monitoring of a scheme or schemes for the
creation, maintenance and monitoring of the said new wetland habitat.

11.15

The Developer shall make payments to the Council of such sums as the Council
may demand in writing (such demand or demands to be served no earlier than
transfer of the site or sites pursuant to Clause 11.13) up to the remaining balance
of the said sum of £212,000 subject to Indexation less the costs identified in the
Developer’s account submitted in accordance with Clause 11.14.

Fishermen’s Harbour
11.16

The new harbour arm to be constructed for the new Fishermen’s Harbour as part of
the Development will be provided with timber fendering and other surface
treatments as appropriate to encourage colonisation in inter- and sub-tidal species
PROVIDED ALWAYS THAT this obligation shall not require the Developer to expend
more than £10,000 subject to Indexation in respect of this obligation and such
treatments shall not prevent or obstruct the use of the quay wall for mooring and
associated purposes.

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Marina
11.17

The Developer shall use all reasonable endeavours including the insertion of
appropriate provisions in any proposed lease of the Marina to require the Marina
berth holders to undergo WiSe training or similar instructive programme for the
protection of the environment by boat users.

11.18

Upon receipt of a notice from the Council so requiring (such notice to be served no
earlier than the submission of the Reserved Matters Application for the Marina or
the first such Reserved Matters Application) the Developer will provide a further
assessment to the Council (in consultation with the Environmental Consultees) of
the impact (if any) of increased waterborne activities on water birds and other
marine wildlife on the Hayle Estuary and Carrack Gladden SSSI and RSPB Nature
Reserve arising from the use of the Marina and generally from water sports
activities from Hayle Harbour generated by the Development PROVIDED ALWAYS
that where any Reserved Matters Application is submitted which includes the
details of the ramp and pontoon which are proposed for the Fishermen’s Harbour
without reference to the Marina then such Reserved Matters Application will not
enable the Council to serve the notice referred to in this Clause 11.18.

11.19

Where the assessment referred to in Clause 11.18 indicates that mitigation may be
required for any impact identified by such assessment the Developer shall with
such assessment also submit proposals for mitigation including a programme for
implementation for approval by the Council in consultation with the Environmental
Consultees. The Developer will implement any such mitigation in accordance with
the approved programme but shall not be required to implement mitigation
proposals the costs of which exceeds £10,000 subject to Indexation.

Ecological Management Plan
11.20

Prior to or with the first Reserved Matters Application for each Development Area
the Developer will submit to the Council for approval in consultation with the
Environmental Consultees an ecological management plan including a CEMP to deal
with the management mitigation and monitoring of the impact of that Development
Area upon ecology within the Site and no Development shall take place in that
Development Area until such time as the relevant ecological management plan has
been approved by the Council and each Development Area shall be constructed
and operated in accordance with the relevant approved ecological management
plan.

11.21

The ecological management plan to be submitted by the Developer shall conform
with the requirements of Schedule 2 insofar as relevant to the particular
Development Area.

11.22

Following the submission of the first ecological management plan in accordance
with Clause 11.20 submissions of ecological management plans for subsequent
Development Areas shall include proposals for interruption or change of any
ongoing ecological monitoring regimes as may be required by the construction and
operational requirements of such subsequent Development Area or Development
Areas.

11.23

The Parties hereby agree that the Developer shall not be obliged to implement
monitoring or mitigation for any element of the CEMP or other ecological
management plan the cost of which exceeds the relevant estimate set out in Tables
1 and 2 of Schedule 2 subject to Indexation.

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11.24

Unless otherwise agreed with the Council no development shall be permitted on the
Triangular Spit other than in accordance with any management regime for
protection of petalwort and for the management of operational disturbance to birds
at Carnsew Pool and Lelant Water which may be agreed with the Council in
consultation with the Environmental Consultees.

Repayment
11.25

The Council covenants with the Developer that if the sums paid by the Developer
to the Council pursuant to Clauses 11.3.1 and/or 11.3.2 and/or 11.25 or any part of
them shall remain unexpended by the fifth anniversary of each respective payment
then the Council will repay any such unexpended sum to the Developer (meaning
in this case the party who made payment) upon the fifth anniversary of the
relevant payment and each of them.

12

EDUCATION

12.1

The Developer shall following the sale of each Market Housing Unit provide details
in writing to the Council identifying the address of the Unit the number of
bedrooms within it and whether or not the terms of the sale allow for permanent
and continuous occupation and shall submit such details in accordance with the
Accounting Procedure.

12.2

The Developer will pay to the Council the sum of £1500 (subject to Indexation)
upon the Occupation of every Market Housing Unit of 2 or more bedrooms such
payment to be made in accordance with the Accounting Procedure PROVIDED
ALWAYS that no such payment shall be payable for any Market Housing Unit which
is Disposed of subject to a planning restriction on occupancy which prevents such
Market Housing Unit being occupied throughout the year.

13

SUSTAINABILITY

13.1

Unless otherwise agreed in writing by the Council, with each Reserved Matters
Application the Developer will submit to the Council for approval a Development
Area Energy Strategy for that Development Area or Development Areas to which
such Reserved Matters Applications relates to demonstrate how the required 10%
reduction in CO2 emissions in that Development Area will be achieved measured
against the Building Regulations standards in place as at the date of the
Application. No Development shall take place in that Development Area until the
Development Area Energy Strategy is approved by the Council and each
Development Area shall be constructed in accordance with the relevant
Development Area Energy Strategy.

13.2

The Development Area Energy Strategy will include details of the Developer’s
commitment:

13.2.1

to incorporating on-site renewable energy generation; and

13.2.2

to achieving BREEAM ‘Very Good’ ratings or equivalent for the office and
commercial areas of the Development; and

13.2.3

to achieving Code for Sustainable Homes Level 4 for Dwellings or such less onerous
requirement which may be required by Government guidance or Building
Regulations at the time of construction.

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13.3

The Developer will use reasonable endeavours to access energy from the Wave
Hub (if possible and permitted) to achieve the objectives of the Development Area
Energy Strategy requirements.

14

PRIMARY HEALTH FACILITIES

14.1

The Developer shall pay to the Council the sum of £180 subject to Indexation upon
the Occupation of each Market Housing Unit comprised within the Development
such payment to be made in accordance with the Accounting Procedure.

14.2

The Developer will make a site or space available at Market Value within the
Development for the relocation of or facilities for the existing Hayle general
practitioners’ medical practice.

14.3

If no agreement has been reached for the transfer of such site identified in
accordance with Clause 14.2 within 1 year of the commencement of marketing of
the Development Area within which such site falls then the use of such site shall
cease to be restricted under the terms of this Agreement and shall be available for
alternative uses by the Developer subject to the grant of planning permission.

15

BUSINESS CENTRE

15.1

The Developer will make a site or space available at
Development for a Business Centre or Business Centres.

15.2

If no agreement has been reached for the transfer or lease of such site or sites
within 18 months of the commencement of marketing of the Development Area
within which such site falls then the use of such site shall cease to be restricted
under the terms of this Agreement and shall be available for alternative uses by the
Developer subject to the grant of planning permission.

16

DESIGN FRAMEWORK AND DETAILED DESIGN CODES

16.1

Unless otherwise permitted by the
Council no Development Area of the
Development shall be constructed other than in accordance with the Parameter
Plan and the principles set out in Hayle Harbour Development Framework and
Design Codes PROVIDED THAT any permitted variation must accord with the
description of the development in the Planning Permission and the Council is
satisfied:

16.1.1

that any permitted variation will have no significant adverse environmental effects;
or

16.2

the application for variation is accompanied by an environmental statement
assessing the likely significant environmental effects of the variation.

17

PEDESTRIAN BRIDGE

17.1

The Developer shall (having regard to the provisions of this Agreement) use
reasonable endeavours from the date of the first Reserved Matters Application
which includes land on South Quay to secure:

17.1.1

the Harbour Revision Order; and

17.1.2

the Necessary Consents free from Onerous Terms for the Pedestrian Bridge

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Market Value within the

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17.2

If the Developer is able to secure the Harbour Revision Order and the Necessary
Consents free from Onerous Terms for the Pedestrian Bridge, it shall procure the
delivery of the Pedestrian Bridge prior to Occupation of more than 8,000 square
metres (gross) of the non-residential floorspace to be constructed on South Quay
as part of the Development PROVIDED THAT it shall not be required to expend
more than the sum of £466,200 plus VAT (subject to Indexation) upon securing the
provision of the Pedestrian Bridge

17.3

If the Developer, having used reasonable endeavours, has not been able to secure
the Harbour Revision Order and/or the Necessary Consents free from Onerous
Terms within 3 years from Commencement of the Development on South Quay it
shall serve a written notice upon the Council confirming that it has not been able to
secure the Necessary Consents free from Onerous Terms and/or the Harbour
Revision Order and is unable to procure the delivery of the Pedestrian Bridge

17.4

The Developer shall pay to the Council the Pedestrian Bridge Sum within 10
Working Days of receipt of the Developer’s notice served in accordance with Clause
17.3

17.5

The Pedestrian Bridge Sum shall not exceed £466,200 plus VAT subject to
Indexation

17.6

The Developer shall not Occupy more than 8,000 square metres (gross) of the nonresidential floorspace to be constructed as part of the Development on South Quay
unless either:

17.7

(a)

the Pedestrian Bridge has been provided; or

(b)

the Pedestrian Bridge Sum has been paid to the Council.

In the event that the Pedestrian Bridge Sum is paid to the Council it shall spend the
Pedestrian Bridge Sum only upon the provision of the Pedestrian Bridge or such
other measures which the Council considers will improve connectivity between
South Quay and Hayle and which measures shall be approved by the Developer
(meaning in this case the party who made payment) (such consent not to be
unreasonably withheld or delayed)

Repayment
17.8

The Council covenants with the Developer that if the Pedestrian Bridge Sum or any
part of it shall remain unexpended by the third anniversary of payment then the
Council will repay any unexpended sum to the Developer (meaning in this case the
party who made payment) upon the third anniversary of the payment of the
Pedestrian Bridge Sum. For the avoidance of doubt it is hereby agreed that if the
Council is unable to provide the Pedestrian Bridge or such other measures in
accordance with Clause 17.7 then the Council may withhold from repayment its
reasonable costs incurred in pursuing the Pedestrian Bridge or such other
measures, subject to a limit of £80,000 subject to Indexation.

18

CARNSEW SLUICES

18.1

Prior to first Occupation of any part of the Development on South Quay the
Developer shall:

18.2

submit to the Council a listed building application in respect of all parts of the
Phase A Works which require listed building consent;

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18.3

subject to the necessary listed building consent first being granted carry out and
complete the Phase A Works PROVIDED THAT the Developer shall not be required
by this Agreement to spend more than £17,000 (subject to Indexation) upon the
carrying out of the Phase A Works

18.4

Prior to first Occupation of any part of the residential Development on South Quay
the Developer shall:

18.5

submit to the Council a listed building application in respect of all parts of the
Phase B Works which require listed building consent;

18.6

subject to the necessary listed building consent first being granted carry out and
complete the Phase B Works PROVIDED THAT the Developer shall not be required
by this Agreement to spend more than £11,000 (subject to Indexation) upon the
carrying out of the Phase B Works

19

SLUICING IN THE HARBOUR

19.1

Prior to first operational use of any part of the Fishermen’s Harbour or the Harbour
Arm the Developer shall submit the Sluicing Report to the Council for approval

19.2

The Council may within 30 Working Days of receipt of the Sluicing Report submit to
the Developer in writing any representations in respect of the Sluicing Report and
the Developer shall take into account all reasonable representations made by the
Council and if necessary the Developer shall amend the Sluicing Report to reflect
any such representations

19.3

The Sluicing Report shall consider funding options for the Sluicing Works and
establish the availability at the time of funding, subsidy or grant available to either
fully or partially fund the carrying out of the Sluicing Works and shall conclude the
extent and timing of the Sluicing Works to be undertaken by the Developer in light
of the available funding, subsidy or grant

20

ACCOUNTING PROCEDURE

20.1

On or before the 31st January in each year the Developer will submit to the Council
for the 12 month period ending on the preceding 31 December:

20.1.1

the details required pursuant to Clause 12.1 of all Market Housing Units Occupied in
that preceding 12 month period; and

20.1.2

the corresponding payment pursuant to Clause 12.2; and

20.1.3

the number of Dwellings Occupied during the preceding 12 month period; and

20.1.4

The corresponding payment pursuant to Clause 14.1.

21

AGREEMENTS AND DECLARATIONS

21.1

Lapse Revocation or Modification of the Permission
The obligations in this Agreement shall lapse and all entries on the Register of Local
Land Charges and the Register of Title of the Site relating to it shall be deleted if
the Planning Permission.

21.1.1

lapses without having been Commenced; or

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21.1.2

is revoked; or

21.1.3

is modified other than at the request of the Developer; or

21.1.4

is quashed.

21.2

Other Planning Permissions

21.2.1

This Agreement and the obligations imposed herein on the Developer shall not in
any way constrain the development or use of the Site (or any part or parts of it) in
accordance with any planning permission (other than the Planning Permission)
granted by the Council or the Secretary of State for Communities and Local
Government.

21.2.2

Insofar as the obligations on the part of the Developer contained in this Agreement
are discharged in whole or in part pursuant to the implementation of the Detailed
Planning Permission or any other planning permission which may be implemented
on the Site then the Developer shall be relieved of such obligation to the extent of
that discharge under this Agreement.

21.3

Notices
Any notice or other written communication to be served or given under the terms
of this Agreement shall be deemed to have been validly served or given if
transmitted by facsimile, delivered by hand or sent by registered or recorded
delivery post to the party upon whom it is to be served or to whom it is to be given
at the address as specified above and:

21.3.1

in respect of the Council it shall be marked for the attention of the “Head of
Planning and Regeneration”; and

21.3.2

In respect of the Developer it shall be marked for the attention of the “Company
Secretary”.

21.4

Parting with Interests in the Application Site and Successors in Title

21.4.1

The Developer shall upon parting:
(a)

with the fee simple in any part of the Site be released from all obligations
and duties under the terms of this Agreement insofar as they relate to or
are binding on that part of the Site; and

(b)

with the entirety of its interest in the Site as a whole be released from all
liabilities whatsoever under the terms of this Agreement.

21.4.2

The releases provided for in Clause 21.4.1 shall not apply to any prior or existing
breach as at the date of disposal.

21.4.3

Any obligation under the terms of this Agreement which is expressed to be binding
on a particular area of land shall be binding on the Developer’s successors in title
but only insofar as they are successors in title to that area of land or relevant part
of it and on the basis that such successors benefit from Clause 21.4.1 in (mutatis
mutandis) the same way as the Developer.

21.5

Liability of Successors

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21.5.1

No successor in title to the Developer shall be liable for any breach of any
obligation which occurs in relation to any area of the Site which that successor
does not own or control or which is carried out by any person other than that
successor.

21.5.2

This Agreement will not be binding or enforceable against the following:(a)

lessees or purchasers who Occupy or are entitled to Occupy any Dwelling
except where the obligation restricts of prohibits Occupation or use of the
Dwelling; and/or

(b)

lessees or purchasers who Occupy non-residential floorspace within the
Development except where the obligation restricts or prohibits occupation
or use of such non-residential floorspace.

21.5.3

No obligation under this Agreement shall be enforceable against any mortgagee or
receiver unless such mortgagee or receiver shall have taken possession of the
relevant part of the Site in exercise of its power of sale but no successor in title to
any such mortgagee or receiver shall (without prejudice to this Clause 21.5.3) take
free of any obligation which binds that part of the Site to which it or they are a
successor in title.

21.6

Discharge by Performance
Upon the performance discharge or other fulfilment of the covenant obligations (or
any of them) by the Developer, any successor in title, or the Council under the
terms of this Agreement such covenant obligation or obligations shall absolutely
cease and determine save in respect of any antecedent breach.

21.7

Registration

21.7.1

This Agreement may be registered by the Council as a local land charge in
compliance with section 1 Local Land Charges Act 1975 and the Council agrees that
when any obligation under this Agreement is performed that information on
performance and the extent of such performance will be made available to
applicants for land charges searches if requested.

21.7.2

The Developer shall register this Deed on the Charges Register of the Title
Numbers of the properties forming part of the Site at the Land Registry and provide
Office Copies of entries to the Council as evidence of the same within one month of
the date of this Agreement.

21.8

Contracts (Rights of Third Parties) Act 1999

21.8.1

This Agreement does not and is not (save where this Clause is in any other Clause
expressly (by express reference) excluded) intended to confer any rights
whatsoever on any person who is not a party to this Agreement pursuant to
Contracts (Rights of Third Parties) Act 1999.

21.8.2

(Without prejudice to Clause 21.8.1 this Agreement may be varied revoked or
supplemented without the consent of any third party.

21.9

Dispute Resolution

21.9.1

Save where expressly excluded any difference disagreement or question which
arises between the parties under the terms of this Agreement may be referred to
an Expert under the Dispute Resolution Procedure.

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21.9.2

The decision of the Expert under the Dispute Resolution Procedure shall (save in
the case of manifest error or in relation to a point of law) be final and binding on all
of the parties to the dispute but shall not preclude the Developer from
recommencing any approval procedure under the terms of this Agreement with
revised proposals.

21.9.3

The Dispute Resolution Procedure shall apply to any reference to the Expert.

21.9.4

Each party shall bear their own costs in relation to preparing and submitting
evidence to the Expert save that the Expert shall have the power to determine how
costs are to be awarded.

21.10

Planning Gain Supplement Tax and Community Infrastructure Levy

21.10.1

If there is levied on the Developer in addition to the requirements of this
Agreement any requirement to make any payment by way of planning gain
supplement tax planning charge or community infrastructure levy or any other
requirement that the Developer pay to the Council and/or to HM Revenue and
Customs or to any other revenue collecting body designed to fund benefits such as
those toward which the Developer is making any payment under this Agreement:
(a)

the Developer may require of the Council that as a precondition to making
any such payment under this Agreement the Council first undertakes that if
any of the above eventualities arises it shall repay to the Developer
whichever is the lesser of the amount of planning gains supplement
community infrastructure levy and planning charge due from the Developer
and the amount payable under this Agreement in connection with which
the Developer seeks such repayment undertaking; and

(b)

any unmet obligation of the Developer to make any such payment under
this Agreement shall be reduced commensurately with the amount of any
amount it is required to pay by way of planning gain supplement tax
planning charge or community infrastructure levy.

21.11

Void Agreement

21.11.1

If any provision of this Agreement is declared by any Court to be void voidable
illegal or otherwise unenforceable the remaining provisions of this Agreement shall
continue in full force and effect and the parties shall if required amend that
provision in accordance with or to give effect to the decision of the Court

21.12

Approvals and Consents

21.12.1

Where this Agreement:

21.12.2

(a)

requires any matter to be agreed approved certified consented to or
determined by any party or any person on behalf of any party hereto
under this Agreement such agreement approval certification consent or
determination shall not be unreasonably withheld or delayed and shall be
given in writing; and

(b)

requires any report review strategy study or other document to be
prepared and/or submitted to another party such report review strategy
study or other document shall be prepared and submitted in writing.

The parties agree with one another to act reasonably and in good faith in the
fulfilment of the objectives of this Agreement.

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21.12.3

Where it is provided in this Agreement that a matter is to be agreed by any of the
parties or is to be agreed or approved by any of the parties and a timescale for
such agreement being reached or agreement or approval or deemed approval
being given is not provided then (without prejudice to Clause 21.12.1) the relevant
provision shall be deemed to be subject to a proviso that:
(a)

the party in receipt of the submission of the matter to be approved or
agreed shall respond in writing within 15 Working Days of receipt of such
submission (or a reasonable extension of this time as necessary and to be
agreed by the parties) either indicating approval or setting out details of
disagreement; and

(b)

the party in receipt of any amended submission following the exchange
referred to in Clause 21.12.3(a) shall respond in writing within 15 Working
Days of receipt of such amended submission (or a reasonable extension of
this time as necessary and to be agreed by the parties) either indicating
approval or setting out details of disagreement; and

(c)

if agreement is not reached or the matter is not agreed or approved within
a period of 40 Working Days (or a reasonable extension of this time as
necessary and to be agreed by the parties) then the matter may be
referred to the Expert pursuant to Clause 21.9 PROVIDED THAT this
provision shall not prevent a dispute from being referred to the Expert
earlier than the expiry of such period by any party to this Agreement
where that party is of the view that agreement will not be reached or the
matter will not be agreed or approved within the said period.

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Schedule 1
Affordable Housing
Part 1
Definitions
1

Definitions
In this Schedule:

"Allocation" means the process by which the Affordable Housing Provider selects a
Qualifying Person for an Affordable Housing Unit upon it becoming available for occupation
"Approved Lender" means a Bank or Building Society registered in the UK
“Area Local Connection” means a connection with the Primary Area or the Secondary Area
and demonstrated by that person or a member of their household to the reasonable
satisfaction of the Council:
(a)

Being permanently resident therein for a continuous period of at least 3 years
immediately prior to the offer of the relevant Affordable Housing Unit; or

(b)

Being permanently resident therein for a continuous period of 5 years; or

(c)

Having his or her place of permanent work (not including seasonal employment)
therein for a continuous period of 3 years immediately prior to the offer of the
relevant Affordable Housing Unit; or

(d)

Having a connection through a close family member (as determined by the Council
but not limited to a resident parent, child, brother or sister) who meets the criteria
(a) of this definition.

“County Local Connection” means a connection with the Council’s Area as appropriate and
demonstrated by that person or a member of their household to the reasonable satisfaction
of the Council:
(a)

Being permanently resident therein for a continuous period of at least 12 months
immediately prior to the offer of the relevant Affordable Housing Unit and that
residence is of their own choice: or

(b)

Being permanently resident therein for a continuous period of 3 years; or

(c)

Having his or her place of permanent work (not including seasonal employment)
therein immediately prior to the offer of the relevant Affordable Housing Unit; or

(d)

Having a connection through a close family member (as determined by the Council
but not limited to a resident parent, child, brother or sister) who meets the criteria
(a) of this definition; or

(e)

Such other special circumstances which the Council considers require the applicant
to reside in the Council’s Area and are consistent with the Council’s Homechoice
policy as amended from time to time

"Homes and Communities Agency" means the body which funds Affordable Housing
Providers or its successors in title

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"Homeseekers Register" means the Council’s Homeseekers Register or such other register
or list that the Council may in future hold identifying a Qualifying Person where those persons
are considered to be in Housing Need
"Housing Need" means being homeless or threatened with homelessness or living in
accommodation which is insecure or unsuitable and in the reasonable determination of the
Council unable to purchase or otherwise secure reasonably suitable accommodation in the
normal open market for property in the Primary Locality or the Council’s Area as the case may
be taking into account the person's income and capital and such other matters as the Council
shall consider to be relevant to such determination save that accommodation may be
unsuitable on the grounds of cost overcrowding unfitness or lack of basic amenities or
because of a person's infirmity physical disability mental disability or specific social or care
needs
"Initial Qualifying Person" means:
(a)

a person who is on the Homeseekers Register and/or is considered in the
reasonable opinion of the Council to be in Housing Need and has an Area Local
Connection, or

(b)

a Key Worker

"Key Worker" means any person primarily employed in the Council’s Area who is unable to
afford suitable accommodation in the private housing market unassisted and fulfils a role in a
universally accessible essential local service which if not performed would be detrimental to
the well-being of the community which shall include for the time being and at the Council's
absolute discretion persons employed in:
(a)

a school or other further education establishment (for example - teacher classroom
assistant lecturer and essential ancillary/auxiliary support staff)

(b)

a hospital or other health establishment (for example - clinical staff nurse doctor
medical administrators essential support staff)

(c)

the police fire ambulance or rescue services (including lifeboat crew)

(d)

the armed forces

(e)

national public services or local public services

(f)

public transport services

(g)

community and voluntary sector or such other persons which the Council may from
time to time consider to be employed in a universally accessible essential local

(h)

any other employment as agreed by the Council.

“Maximum Price" means the maximum price at which each Unit Discounted for Sale may
be sold at any time and being an amount not exceeding 75% of the Open Market Value of
that Unit Discounted for Sale
"Nomination Agreement " means an agreement providing for the process by which the
Council selects a Qualifying Person from the Homeseekers Register for Allocation by the
Developer or the Affordable Housing Provider
"Open Market Value" means the value an Affordable Housing Unit would have if this
Agreement did not restrict the manner in which the Affordable Housing Unit could be let or

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sold to the persons who occupy it which shall be determined by averaging the valuations of
two independent local valuers (being Members of the Royal Institute of Chartered Surveyors)
appointed by express agreement between the parties to this Agreement and the Developer
shall be solely liable for the costs of the independent local valuers
"Primary Area" means the administrative area of Hayle Town Council
"Purchaser" means a person or persons who has/have the interest which carries the right to
occupy an Affordable Housing Unit and/or an equity sharing lease as an Affordable Housing
Unit and unless the context indicates otherwise their successors in title assigns and any
person deriving title under them
"Qualifying Person" means an Initial Qualifying Person or a Secondary Qualifying Person or
a tenant or lessee of a mortgagee of an Affordable Housing Unit
"Ready For Occupation" means substantially complete and ready for first occupation as a
dwelling including all internal partitions fixtures and fittings but excluding internal decoration
“Relevant Disposal" means the grant or transfer of any interest in an Affordable Housing
Unit that carries with it the right to occupy an Affordable Dwelling and any grant or transfer
of any interest to a person who already has such a right
""Secondary Area" means the administrative area of the Hayle and St Ives Community
Network Area comprising Hayle, Gwinear-Gwithian, St Erth, St Ives and Towednack
“Secondary Qualifying Person" means:
(a)

a person who is on the Homeseekers Register and/or is considered in the
reasonable opinion of the Council to be in Housing Need and has a County Local
Connection or

(b)

a Key Worker

"Shared Ownership Lease" means a lease by which the tenant being also the occupier
(then or on completion):
(a)

obtains and retains a minimum 25% and maximum 75% initial share of the
freehold or long leasehold (as the case may be) of the value of the Affordable
Housing Unit with the balance of the equity held by an Affordable Housing
Provider; and

(b)

has a right at any time to purchase the whole (up to 100% or up to 80%
where staircasing is restricted by virtue of the provisions of the Housing (Shared
Ownership Leases (Exclusion from Leasehold Reform Act 1967) (England)
Regulations 2009 or any part of the balance of such value substantially in
accordance with the terms of the Homes and Communities Agency Model Form of
Lease; and

(c)

pays rent on the unpurchased share on the equity such rent not to exceed the
amount or percentage as accords with guidance issued by the Homes and
Communities Agency from time to time

“Shared Ownership Unit” means an Affordable Housing Unit let on a Shared Ownership
Lease
“Tenant Services Authority” means the body which regulates Affordable Housing
Providers in England or its successors in title.

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1

THE DEVELOPER’S COVENANT

1.1

The Developer hereby covenants with the Council that it will abide by the
provisions of this Schedule in respect of the Affordable Housing and will ensure that
any Disposal of Affordable Housing Units and/or Affordable Housing Land to any
Affordable Housing Provider shall include a requirement for the Affordable Housing
Provider to comply with these provisions.

1.2

For the avoidance of doubt the Developer will cease to have any further liability
under the terms of this Schedule for any Affordable Housing Units or Affordable
Housing Land once these are Disposed of to an Affordable Housing Provider or in
the case of any Unit Discounted for Sale to any Purchaser of such Unit.

2

UNITS DISCOUNTED FOR SALE

2.1

Any Disposal of any Unit Discounted for Sale shall be for no more than the
Maximum Price.

2.2

There shall be included in any lease or transfer document the price paid for the
Unit Discounted for Sale expressed as a percentage when compared to the Open
Market Value

2.3

The Developer will contact the Council when any of the Units Discounted for Sale
are ready for marketing and will provide to the Council the necessary information
to allow the Units Discounted for Sale to be marketed to a Qualifying Person.

2.4

If after a period of eight weeks (from the initial date of marketing which may
commence at any time after the submission of a Reserved Matters Application
which includes the relevant Unit) of any Unit Discounted for Sale which is Ready for
Occupation having been made available for sale or letting and advertised as such
locally no Initial Qualifying Person or Secondary Qualifying Person has agreed
terms to purchase or take a tenancy or lease of the Unit Discounted for Sale the
Developer may either:(a)

sell his interest in the Unit Discounted for Sale to the Council or an
Affordable Housing Provider at the Maximum Price and the Unit Discounted
for Sale will continue to be bound by the terms of this Agreement and will
continue to be designated as a Unit Discounted for Sale; or

(b)

sell his interest in the Unit Discounted for Sale on the open market and in
this event the provisions of this Schedule shall no longer apply to the Unit
Discounted for Sale and it shall henceforth become free of any restrictions
and capable of being sold at Open Market Value

2.5

The lease or transfer of any Unit Discounted for Sale shall include the following
provisions subject to paragraph 4.3 of this Schedule:

2.5.1

That they may be sold subsequently only to Qualifying Persons and pursuant to
the procedure set out in paragraph 3 of this Schedule and

2.5.2

All Disposals of any Unit Discounted for Sale shall be for the Maximum Price.

3

SALES AND LETTINGS

3.1

The Developer shall not Dispose of any Affordable Housing Unit other than a Unit
Discounted for Sale to anyone other than an Affordable Housing Provider

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3.2

Subject to the provisions on paragraph 4 of this Schedule no Affordable Housing
Unit other than a Unit Discounted for Sale;

3.2.1

may be Occupied until the relevant Affordable Housing Provider has entered into a
Nominations Agreement with the Council; or

3.2.2

may be leased or sold to anyone other than a Qualifying Person.

3.3

Where any leaseholder wishes to sell his equity share in a Shared Ownership Unit
the leaseholder shall comply with the relevant provisions contained in its lease
which shall include a provision that the leaseholder must notify the Affordable
Housing Provider of his wish to sell the Shared Ownership Unit and must allow the
Affordable Housing Provider or its nominee a period of not less than four weeks to
purchase the equity share at open market value.

4

PROVISOS

4.1

No Affordable Housing Unit shall be Occupied at any time other than as the only or
principal home of a Qualifying Person and in particular nor shall any Affordable
Housing Unit be used as a second home or holiday home or winter let

4.2

Nothing in this Agreement shall prevent the leaseholder under a Shared Ownership
Lease surrendering to the relevant Affordable Housing Provider with vacant
possession but the provisions of this Agreement shall continue to apply to restrict
the Occupation Disposal and letting of that Affordable Housing Unit.

4.3

The restrictions on occupation of any Affordable Housing Unit;

4.3.1

Subject to the provisions of paragraph 4.5 will not bind any mortgagee of an
Affordable Housing Provider or any mortgagee of an occupier of an Affordable
Housing Unit or any receiver or manager (including an administrative receiver)
appointed pursuant to the Law of Property Act 1925 or otherwise by a party who
has provided loan facilities for the purpose of providing the Affordable Housing

4.3.2

nor will the obligations be binding on any purchaser from such person; and

4.4

will cease to apply in respect of any:
(a)

Shared Ownership Unit where the tenant has staircased to 100% of the
equity in such unit;

(b)

Any Affordable Housing Unit where the tenant has acquired pursuant to a
right to buy under Part V of the Housing Act 1985 as amended by the
Housing (Preservation of Right to Buy) Regulations 1993 or pursuant to a
right to acquire under section 16 of the Housing Act 1996 or any similar or
substitute statutory right applicable.

4.5

Any mortgagee or other person referred to in paragraph 4.3.1 shall prior to seeking
to dispose of the Affordable Housing Unit or Affordable Housing Land pursuant to
any default under the terms of its mortgage or charge shall give not less than 2
months’ prior notice to the Council of its intention to dispose and:

4.5.1

in the event that the Council responds within 1 month from receipt of the notice
indicating that arrangements for the transfer of the Affordable Housing Unit can be
made in such a way as to safeguard them as Affordable Housing then the
mortgagee (or other person referred to in paragraph 4.3.1) shall co-operate with
such arrangements and use its best endeavours to secure such transfer; and

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4.5.2

if the Council does not serve its response to the notice served under 4.5.1 within 1
month of receipt then the mortgagee (or other person referred to in paragraph
4.3.1) shall be entitled to dispose free of any restrictions imposed by this
Agreement on the occupation or disposal of that Affordable Housing Unit; and

4.5.3

if the Council or any other person cannot within 2 months of the date of service of
its response under paragraph 4.5.1 above secure such transfer then provided that
the mortgagee (or other person referred to in paragraph 4.3.1) shall have complied
with its obligations under paragraph 4.5.1 it shall be entitled to dispose free of any
restrictions imposed by this Agreement on the occupation or disposal of that
Affordable Housing Unit
Part 2
Shared Ownership Lease

1

Any Shared Ownership Lease shall unless the Council and the Developer otherwise
agree in writing:

1.1

Be granted by an Affordable Housing Provider in accordance with the Homes and
Communities Agency rules from time to time in force and:

1.1.1

provide for the Purchaser to acquire an initial share of an Affordable Housing Unit
the value of which shall not exceed the 75% of the Open Market Value; and

1.1.2

limit the rent to a rent that is determined by reference to Homes and Communities
Agency guidelines on Shared Ownership Leases (or such other document as may
supersede those guidelines); and

1.1.3

limit occupation to a Qualifying Person.

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Schedule 2
Ecological Management Plan

1

THE CEMP:
The CEMP shall include the following provisions where appropriate:

1.1

establishing baseline conditions where necessary;

1.2

prevention of the release of pollutants/harmful substances into the aquatic
environment;

1.3

a construction-phase water quality monitoring regime, to be defined and agreed
with Environmental Consultees;

1.4

the timing of specific works likely to have a significant impact on ecology to be
determined primarily with reference to a matrix of “seasonal sensitivities” of
ecological receptors;

1.5

monitoring of aquatic ecology during the construction of each phase with provisions
for management in the event that Environmental Quality Standards are exceeded;

1.6

ornithological mitigation components (defined in Annexe 12N of the Environmental
Statement which was submitted with the Planning Application), including the
identification of development related disturbance risk factors, resultant control
measures and related monitoring;

1.7

translocation, by licence, of petalwort colonies on South Quay including proposal
for and research/studies in support of translocation sites;

1.8

mitigation of impact on bats including undertaking works under European Protected
Species licence wherever necessary including re-survey (if indicated) in advance of
development in sufficient time to modify plans and/or acquire relevant licences,
avoidance of roost sites during construction, replacement of lost roost sites;

1.9

mitigation of impact on reptile communities including protection of habitats and
translocation of species during construction;

1.10

mitigation of impact on western ramping fumitory, purple ramping fumitory and ivy
broomrape, involving translocation of substrates/plant material prior to
construction;

1.11

management of the removal of Cornish hedges and the establishment of
approximately 280 metres of new Cornish hedges;

1.12

continuation of construction-phase monitoring on an annual basis as appropriate
and for a minimum period of 12 months following completion of impacting
construction works. Should independent audit of monitoring results show that the
Environmental Consultees have concerns that the monitoring surveys do not show
recovery to baseline levels conditions within this monitoring period then the
surveys shall continue until the mitigation proposals are proven. Should
independent audit of monitoring results show that recovery to baseline conditions
has occurred before completion of the monitoring period monitoring will be
terminated at that point. The role of the independent auditor will be defined in the
CEMP and method of appointment agreed.

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Table 1
Costs associated with ecological monitoring / mitigations items in Schedule 2,
section1
Item
1.3 –water quality monitoring regime

Budget Ceiling
£10,000

1.5 – monitoring of aquatic ecology during construction
1.6 – application of construction-phase ornithological
mitigation components (risk factors, control measures and
monitoring)
1.7 – translocation of petalwort colonies on South Quay
1.8 – mitigation of impacts on bats
1.9 – mitigation of impacts on reptiles
1.10 – mitigation of impacts on rare plants
1.11 – management of the removal and replanting of
Cornish hedges
1.12 – post-construction monitoring

£24,000
£13,600
£10,000
£34,200
£83,780
£1,830
£30,380
£100,000

All figures subject to Indexation

2

The EMP shall make provision for monitoring, with the objective of detecting
operational phase impacts on aquatic ecology (invertebrates, algae, fish and
aquatic birds), comprising:

2.1

A water quality monitoring regime relevant to the Harbour operations proposed by
the Development (impoundment, sluicing, dredging), to be defined and agreed in
consultation with the Environmental Consultees.

2.2

Baseline and operational-phase fish surveys in Carnsew Pool, Copperhouse Pool,
the Harbour and Penpol Creek, with baseline surveys to take place in the summer
prior to commencement of the first-phased harbour works and two operational
surveys to commence in the summer following completion of the relevant works,
the timing of these subsequent surveys to be determined in consultation with the
Environmental Consultees

2.3

Invertebrate and algae surveys on the new Fishermen’s Harbour structures
comprised in the Development commencing in the summer following completion of
these works, to continue for a period of 5 years.

2.4

Baseline and operational surveys for algae and Salicornia in Carnsew Pool and
Copperhouse Pool, with baseline surveys to take place in the summer prior to
commencement of the first-phased harbour works and two operational surveys to
commence following completion of the relevant works, the timing of these
subsequent surveys to be determined in consultation with the Environmental
Consultees

2.5

Baseline and operational surveys for invertebrates in Carnsew Pool and
Copperhouse Pool, with baseline surveys to take place in the summer prior to
commencement of the first-phased harbour works and two operational surveys to
commence following completion of the relevant works, the timing of these
subsequent surveys to be determined in consultation with the Environmental
Consultees

2.6

Baseline and operational surveys of the extent of biotopes in Copperhouse Pool
dominated by Enteromorpha, with the baseline survey to take place in the summer
prior to commencement of the first-phased harbour works, and two operational
surveys to commence following completion of the relevant works, the timing of

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these subsequent surveys to be determined in consultation with the Environmental
Consultees
2.7

Baseline and operational monthly monitoring of aquatic bird numbers on defined
sectors of the Hayle estuary at low water and high water, to provide data on
operational Phase impacts (particularly disturbance and effects of sluicing), with
the baseline survey to be undertaken during October to February inclusive prior to
the commencement of the first-phased harbour works, and two operational surveys
to commence following completion of the relevant works, the timing of these
subsequent surveys to be determined in consultation with the Environmental
Consultees.

3

MITIGATION COMPONENTS RELEVANT TO OPERATIONAL ACTIVITIES
WITHIN THE DEVELOPED HARBOUR, COMPRISING:

3.1

Ornithological mitigation to include, where appropriate, design and management
measures to reduce sources of operational related disturbance to birds within the
Hayle Estuary & Carrack Gladden SSSI and RSPB Hayle Nature Reserve and
monitoring of resultant control measures.

3.2

Sluicing regime to be determined in consultation with Environmental Consultees.

3.3

Changes to the sluicing regime in the event of significant changes to invertebrate
populations which are attributable to sluicing, fish habitats or aquatic bird
populations.

3.4

Monitoring of saltmarsh vegetation communities at Copperhouse Pool and Wilson’s
Pool once prior to introduction of sluicing followed by two further surveys every 2
years post-introduction of sluicing for a period of 4 years with changes to the
sluicing regime in the event of deterioration attributable to sluicing.

3.5

Definition of studies to determine the likelihood of algal bloom formation in
impounded waters at Penpol Creek and appropriate mitigation.

4

MITIGATION COMPONENTS RELEVANT TO OPERATIONAL IMPACTS ON
TERRESTRIAL HABITATS, COMPRISING:

4.1

Management of public access and habitats on the Triangular Spit to protect and
where appropriate enhance petalwort colonies there.

4.2

Post-completion follow-up monitoring surveys of bat mitigation work.

4.3

Post-completion follow-up monitoring surveys of reptile mitigation work.

4.4

Mitigation of impact on BAP bird species, linnet, song thrush and house sparrow.

4.5

Management of approximately 280 metres of new Cornish hedges.

4.6

Post-completion monitoring of public use of access paths provided to Hayle Beach.

5

OTHER SURVEYS

5.1

The Council may reasonably require the Developer to undertake within the
approved ecological management plan further surveys and implement any further
associated mitigation in addition to the requirements set out in this Schedule 2 but
the costs of any such additional survey or mitigation work shall be subject to the

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provisions of Clause 11.23 by reference to relevant estimates set out in Tables 1
and 2 of Schedule 2 (subject to Indexation).

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Table 2
Costs associated with ecological monitoring / mitigations items in Schedule 2,
sections 2-4
Item

Description

Assumptions – level of mitigation
/ monitoring effort

ING budget
ceiling

2.1

Water quality monitoring
regime.

To be defined and agreed with
Council and Environmental
Consultees

£10,000

2.2

Baseline & operational fish surveys

Pre-construction baseline survey plus two
surveys post-construction (TBC with
consultees)

£37,662

2.3

Invertebrate & algae surveys on new
Fishermen’s Harbour

Post-construction surveys, annual for up to
5 years

£3702

2.4

Baseline & operational surveys for
marine algae plus two surveys

Pre-construction baseline survey plus three
surveys post-construction (TBC with
consultees)

£15,000

2.5

Baseline & operational surveys for
aquatic invertebrates

Pre-construction baseline survey plus two
surveys post-construction (TBC with
consultees)

£198,461

2.7

Baseline & operational surveys for
aquatic birds

Pre-construction baseline survey plus two
surveys post-construction (TBC with
consultees); three surveys in total, for
period Oct-Feb inclusive (i.e. 5 months)
each year

£62,093

3.1

Ornithological mitigation (design &
management measures to reduce
disturbance, with related monitoring)

Precise measures to be defined;

£30,290 – sum to
serve item 4.1 also
(mitigation needs will
overlap)

2.6

Physical control measures may include
scrub screen-planting, signage, barriers,
footpath definition, development boundary
treatments
Management measures may include
monitoring of disturbance issues, preemptive and responsive “policing” of
harbour activities, environmental advice to
harbour users

All management
actions to be
resourced as required
via the Hayle Harbour
Master, in line with
statutory duties
including
implementation of the
Hayle Estuary
Management Plan and
the Hayle Harbour
Environmental
Enforcement Protocol

3.4

Monitoring of saltmarsh vegetation
communities

One pre-sluicing vegetation mapping
survey and two post-sluicing surveys (over
4 years)

£3,240

3.5

Definition of studies on algal bloom
formation

Specialist consultancy study

£2,000

4.1

Management of public access on
Triangular Spit

Precise measures to be defined; examples
include scrub management / planting,
signage, barriers, footpath definition

£30,290 - sum to
serve item 3.1 also
(mitigation needs will
overlap)

4.2

Post-completion monitoring of bat
mitigation work

Monitoring of local bat distributions and
use of mitigation habitats (eg. bat boxes) –
survey needs to be defined by EPS* licence
requirements

£5,000

4.3

Post-completion monitoring of reptile
mitigation work

Monitoring of receptor site before and after
translocation & inspection of a site @1 day
over 50 refugia

£6,000

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Item

Description

Assumptions – level of mitigation
/ monitoring effort

ING budget
ceiling

4.4

Mitigation of impact on BAP bird species

Ecological input to landscape design of
residential areas (Hilltop, Riviere Fields) to
provide shrub / hedge habitat planting for
affected bird species; provision of nest
boxes

£4,860

4.5

Management of 280m new Cornish
hedges (this activity will also contribute
to mitigation described under 4.4)

Management of new hedge habitats
(formative pruning, 1 day per year over
three years) and provision of management
advice leaflet for contractors

£2,916

4.6

Post-completion monitoring of public use
of access paths to Hayle Beach

Summer and autumn surveys of path
condition and quarterly (single-day) survey
of visitor nos. on access paths; annual
surveys for 3-year period post-completion
(or biennial for 6 years)

To be funded by
contributions made
within 11.3.1 &11.3.2
of this agreement

All figures subject to Indexation

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Schedule 3
Dispute Resolution Procedure
Part 2
Appointment of the Expert
1

Interpretation

(a)

In this Schedule, the following expressions shall have the following meanings:

(b)

“Dispute” means a difference or dispute arising under or out of this Agreement;

(c)

“Dispute Resolution Procedure” means the procedure set out in this Schedule 3;

(d)

“Expert” means the person identified pursuant to Paragraph 3.2 of Part 1 of this
Schedule 3 or such replacement as may be appointed for the time being pursuant
to paragraph 4 Part 1 of this Schedule 3;

(e)

“Procedure Rules” means the rules of procedure contained in Part 2 of this
Schedule 3 or as the same may be modified or amended from time to time.

2

Avoidance of Disputes

(a)

Any disagreement between the parties arising out of or connected with this
Agreement shall unless the Council has taken enforcement action or initiated any
court action against the Developer be referred to senior representatives (board
members in the case of the Developer and Chief Officers in the case of the Council)
of the parties in dispute who shall (within five Working Days of a notice from any
party to the other) meet to attempt in good faith to resolve the dispute amicably
on a full and final basis.

(b)

If the Council commence enforcement action or initiate court proceedings after a
matter has been referred to the Dispute Resolution Procedure then the Dispute
Resolution Procedure shall immediately discontinue and cease to have effect.

3

General

5.2

Identity of Expert

(a)

Any difference or question which relates to the construction of rights and liabilities
of either party or to the terms or conditions to be embodied in any deed or
document appertaining thereto shall be referred to a solicitor or barrister agreed
upon by the parties or (in default of agreement) within 7 days of one party serving
notice on the other calling for the appointment of an expert appointed at the
request of either party by or on behalf of the Chairman from time to time of the
Bar Council).

(b)

Any difference or question which relates to the value of any works or prevailing
rents shall be referred to a chartered surveyor agreed upon by the parties (or in
default of agreement within 7 days of one party serving notice on the other calling
for the appointment of an expert appointed at the request of either party by or on
behalf of the President from time to time of the Royal Institution of Chartered
Surveyors).

(c)

Any difference or question which relates to methods of accounting or otherwise to
matters (such as taxation) usually and properly within the knowledge of a
chartered accountant shall be referred to a chartered accountant agreed upon by

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the parties (or in default of agreement within 7 days of one party serving notice on
the other calling for the appointment of an expert appointed at the request of
either party by or on behalf of the President from time to time of the Institute of
Chartered Accountants in England and Wales).
(d)

If the parties shall fail to agree as to the nature of the difference or question then it
shall be referred to a solicitor or barrister agreed upon by them (or in default of
agreement either of them may apply to the Chairman from time to time of the Bar
Council to appoint a solicitor or a barrister) to decide in relation to any such matter
which of the preceding Clauses is applicable thereto and the decision of such
solicitor or barrister acting as an expert shall be final and binding.

5.3

Appointment of Expert

(e)

If a Dispute arises the Dispute shall be referred and decided by the Expert acting
as an independent expert but not as an arbitrator.

4

The Expert

(a)

The Expert shall conduct the reference and make his decision in accordance with
the Procedural Rules.

(b)

In the event that the Expert shall become unable or unwilling to act either at all or
on such occasions or for such periods as to render it necessary or expedient for a
replacement to be appointed then the parties shall agree and appoint such
replacement.

(c)

In the event of disagreement between the parties as to the necessity or expediency
of appointing a replacement then the matter shall be referred to Dispute Resolution
pursuant to Clause 19.11

(d)

No person shall be eligible to act as a replacement for the person originally
appointed as the Expert unless his qualifications and experience are such that he
could originally have been appointed as the Expert.

(e)

If an appointment is made pursuant to paragraph 3 of Part 1 of this Schedule 3
and if the period between the date of appointment and the date that a decision
ought to be made by the Expert pursuant to Procedural Rule 6.1 is less than 14
days then the parties shall be deemed to have agreed that the time limit under
Procedural Rule 6.1 shall be extended by such number of days as may be
necessary to give the replacement 14 days from the date of his appointment to
consider such reference.

Part 1
Procedural Rules

1

Commencement

(a)

Either party may commence a reference under these rules by serving a notice upon
the Expert.

(b)

A notice served under Procedural Rule 1.1 shall include:

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(c)

a concise summary of the nature and background of the Dispute and the issues
arising;

(d)

a statement of the relief claimed;

(e)

a statement of any matters which the parties have already agreed in relation to the
procedure for determination of the Dispute; and

(f)

copies of all documents which have an important and direct bearing on the issues
on which the claimant intends to rely (or a list of such documents if they are
already in the possession of the recipient).

2

PROCEDURE

(a)

The Expert shall have the widest discretion permitted by law to determine the
procedure for his reaching a decision and to ensure the just expeditious and
economical determination of the Dispute after such investigation as the Expert may
think fit provided that the Expert shall adopt all and any procedures agreed by the
parties to be appropriate for determination of a Dispute including (without
prejudice to generality) the Procedural Rules.

(b)

Subject to the agreement of the parties the Expert may proceed to determine the
Dispute on a documents-only basis.

(c)

The Expert shall fix the date, time and place of any meetings hearings or
inspections which he deems appropriate and shall give the parties reasonable
notice thereof.

(d)

The Expert may in advance of any hearing submit to the parties a list of questions
which he wishes them to address.

(e)

All meetings hearings or inspections shall be in private unless the parties agree
otherwise.

(f)

Each party may appoint representatives to appear on its behalf at a hearing subject
to such proof of authority as the Expert may require.

3

Witnesses

(a)

Before any hearing the Expert may require a party to give notice of the identity and
qualifications of witnesses he wishes to call and may require the parties to
exchange statements of evidence to be given by the witnesses within a period to
be specified by the Expert in advance of the hearing.

(b)

Any witness who gives oral evidence at a hearing may be questioned by each of
the parties or their representatives under the control of the Expert and the Expert
may put questions to the witness at any stage of the examination of the witness.

(c)

(Subject to Procedural Rule 3.4) the Expert may allow the evidence of a witness to
be presented in written form either as a signed statement or by a duly sworn
affidavit.

(d)

Either party may make representations that such a witness should attend for oral
examination at a hearing and if the Expert so orders and the witness thereafter
fails to attend the Expert may place such weight on the written evidence as he
thinks fit or exclude it altogether.

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4

Documents-Only Procedure

(a)

(Subject to Procedural Rule 6.1) if it is decided not to hold a hearing the following
rules shall apply.

(b)

The Expert shall allow each party 21 days (or such other period as the Expert
deems appropriate) from the date of the determination that the Dispute shall be
determined on a documents-only basis pursuant to Procedural Rule 2.2) Procedural
Rule 4.1 to submit representations to the Expert on his determination.

(c)

The Expert shall allow each party 10 days (or such other period not exceeding 28
days as the Expert deems appropriate) from the expiry of the period for submission
of representations under Procedural Rule 4.2 to submit counter representations to
the Expert.

(d)

If at the expiry of either of the periods referred to in Procedural Rules 4.2 and 4.3
no representations have been received from a particular party the Expert shall be
at liberty on each occasion to refuse to accept any late representations and to
reach his decision without considering them.

(e)

Without prejudice to Procedural Rules 4.2 to 4.4 if the Expert commissions
independent expert evidence and intends to rely upon it in reaching his decision he
shall provide a copy of such evidence to each party and allow each the opportunity
to make representations upon it within 10 days.

(f)

The Expert shall notify the parties of his decision.

5

Powers of the Expert

(a)

Without prejudice to Procedural Rule 2.1 and to any powers which may be given to
the Expert elsewhere in these Rules or in this Undertaking the Expert shall have the
power:

(b)

to examine any witness or conduct an inspection of any property or thing relevant
to the Dispute in the absence of any or any other representative of the parties or
any other person;

(c)

to commission expert evidence to be prepared and adduced by a witness
independent of the parties provided that (unless otherwise agreed by the parties to
the Dispute) no more than two such witnesses may be called;

(d)

at any time to permit any party to amend any submission;

(e)

to continue with his determination notwithstanding a failure by any party to comply
with these Rules;

(f)

to order a party to produce to the other party and to the Expert for inspection, and
to supply copies of any documents in that party’s possession custody or power
which the Expert (whether following representations or on his own initiative)
determines to be relevant;

(g)

to order a party to answer interrogatories on the application of the other party;

(h)

to order the inspection, preservation or storage of any data or document relevant
to the Dispute under the control of any party;

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(i)

to make orders authorising any sample to be taken, or any observation to be made,
or (with the agreement of the parties) experiment to be tried which may, in the
Expert’s discretion, be necessary or expedient for the purpose of obtaining full
information or evidence;

(j)

to require the parties to provide a written statement of their respective cases in
relation to particular issues, and/or to provide a written answer and to give reasons
for any disagreement;

(k)

to open up, revise and review any certificate, opinion, instruction, determination or
decision of any person;
(i)

to take the initiative in ascertaining the facts and the law; and

(ii)

to convene a hearing to determine any preliminary issue PROVIDED
THAT:

(iii)

he shall give each party not less than 10 days notice of the hearing;

(iv)

on giving the notice the Expert shall specify the procedure to be adopted
at and in advance of the hearing; and

(v)

the hearing shall be limited to the preliminary issue.

6

Decisions

(a)

The Expert shall make his decision as soon as possible but within 28 days (subject
to an extension of 14 days at the request or with the agreement of the party who
referred the Dispute or if a hearing into preliminary issues is convened pursuant to
Procedural Rule 5.1.12) of the date of reference of a Dispute or within such other
period as the parties may agree in writing PROVIDED THAT if the period for
decision is other than 28 days and the Expert elects to reach his decision via a
documents only procedure under Procedural Rule 4 the timescales referred to in
Procedural Rule 4 shall be varied in such manner as the Expert notifies to the
parties or in default of such notification in such equal proportions as shall be
necessary for the relevant decision to be made in the time available.

(b)

The Expert shall make his decision in writing and the decision shall be dated and
shall be signed by the Expert.

(c)

Unless the parties otherwise agree reasons for the decision and reasons for dissent
shall be given by the Expert.

(d)

The Expert may allow interest on any sum which is the subject of a decision at
such rates as the Expert determines to be appropriate.

(e)

(Subject to complying with the timescales in this Procedural Rule 6) the Expert may
make separate final decisions on different issues at different times.

(f)

Subject to Clause 12.13.2 the Expert’s decision shall be final and binding on the
parties as from the date upon which it is made.

7

Exclusion of Liability

(a)

.

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8

Notices

(a)

Unless otherwise ordered by the Expert or agreed between the parties all notices
required by these Rules shall be in writing.

(b)

A notice under Procedural Rule 1.1 shall be served by first class post or delivered
by hand and all other notices and written communications shall be sent by first
class post fax or delivered by hand.

(c)

Unless the intended recipient proves otherwise:

(d)

documents sent by first class post shall be deemed to have been received two
working days after posting;

(e)

faxes shall be deemed to have been received at the time transmission ceases;

(f)

by hand deliveries shall be deemed to have been received at the time of delivery to
the address stated on their face; and

(g)

references in these Procedural Rules to receipt of documents shall be construed
accordingly.

(h)

Notices shall be effective from the time of deemed receipt and periods of time
measured with reference to the giving sending or serving of a document shall be
measured with reference to the time that document is received.

(i)

Unless otherwise ordered by the Expert or agreed between the parties, all notices
and other documents received on a day which is not a working day or after 6.00pm
on any working day shall be deemed to have been received on the following
working day.
In every case in which a notice is sent to the Expert a copy thereof shall be sent
contemporaneously by the same method of service to the other party.

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Schedule 4
Carnsew Sluice

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Executed as a deed by
THE CORNWALL COUNCIL
whose Common Seal was
hereunto affixed in the
presence of:
Authorised Officer
Executed as a deed by
ING RED UK (HAYLE HARBOUR) LIMITED
acting by two directors or a director and its secretary:

Director

Director/Secretary

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