NNDC standard terms for Section 106 Agreements relating to ...

Planning Section
North Norfolk District Council
Holt Road, Cromer, Norfolk, NR27 9EN
Telephone: 01263 516150/516151/516143
Email: planning@north-norfolk.gov.uk
S106 Standard Affordable Housing Obligation Terms
The following definitions and clauses are used by the Council as a basis for inclusion in
Section 106 obligations associated with Outline Planning Applications where an agreement
is necessary to secure affordable housing.
“Affordable Housing Units”
means 45/50% of the total number of Dwellings to be constructed as part of the Development or
other such reduced percentage as may be approved by the Council as part of the Affordable
Housing Scheme having regard to a Viability Assessment (if any) such Affordable Housing Units to
be provided in accordance with the Affordable Housing Scheme and subject to paragraph 1.7 of
the Third Schedule to be protected in perpetuity as affordable housing or if sold (through any
statutory scheme or where an occupier of Intermediate Housing staircases to 100% ownership)
any receipt is to be reinvested in the provision of affordable housing in the North Norfolk district.
The Council to be advised when this occurs and where monies have been used to provide
replacement affordable housing.
“Affordable Housing”
means social rented, affordable rented and intermediate housing, provided to eligible households
whose needs are not met by the market. Eligibility is determined with regard to local incomes and
local house prices.
“Affordable Housing Scheme”
means the scheme submitted pursuant to paragraph 1.1 of the Third Schedule showing the
number, tenure, location and size of Affordable Housing Units to be provided as part of the
Development and the programme and timetable for provision of the Affordable Housing Units such
scheme to be agreed by the Council having regard to a Viability Assessment (if any)
“Affordable Housing Tenure Mix”
means the tenure mix of Affordable Housing Dwellings to be provided as part of the Development,
subject to viability being:
80% of the Affordable Housing Dwellings to be provided as Affordable Rented ; and
20% of the Affordable Housing Dwellings to be provided as Intermediate Housing.
or such other tenure mix as is approved by the Council as part of the Affordable Housing
Scheme having regard to a Viability Assessment (if any)
“Affordable Rented Housing”
Means Affordable Housing Units which are to be let by local authorities or a Registered Provider to
households who are eligible for social rented housing at a rent which is no more than 80% of the
local market rent (including any service charges) or in the event that there is a change in national
policy affecting the definition of Affordable Rented Housing such alternative rent levels as may be
agreed in writing between the Owner and the Council having regard to the relevant change in
national policy.
“Chargee”
Any mortgagee or charge of the Registered Provider or the successors in title to such mortgagee
1

or charge or any receiver or manager (including an administrative receiver) appointed pursuant to
the Law of Property Act 1925
“Completed Open Market Dwelling”
means an Open Market Dwelling which has been issued with a Building Control Completion
Certificate.
“Homes and Communities Agency”
Means the Homes and Communities Agency of Central Business Exchange II, 406-412
Midsummer Boulevard, Central Milton Keynes, MK9 2EA; or such successor statutory body that
funds and regulates Registered Providers.
“Intermediate Housing”
means Affordable Housing Units for sale and rent provided at a cost above social rent, but below
market levels which meet the definition of Affordable Housing which may include Shared
Ownership and equity products, other low cost homes for sale and intermediate rent but not
Affordable Rented Housing
“Nominations Agreement”
an agreement securing the Council’s right to nominate to the Registered Provider persons from the
Council’s Housing Register to whom the affordable housing will be occupied.
“Protected Tenant”
any tenant who:
a. has exercised the right to acquire pursuant to the Housing Act 1996 or any statutory provision
for the time being in force (or any equivalent contractual right) in respect of a particular
Affordable Housing Dwelling
b. has exercised any statutory Protected Right to Buy (or any equivalent contractual right) in
respect of a particular Affordable Housing Dwelling
c. has been granted a Shared Ownership lease by a Registered Provider in respect of a particular
Affordable Housing Dwelling and the tenant has subsequently purchased from the Registered
Provider all the remaining shares so that the tenant owns the entire Affordable Housing
Dwelling
d. has purchased a Shared Equity Dwelling and has purchased the retained shared from the
Registered Provider or the Council.
“Registered Provider”
A registered provider of social housing as defined in Chapter 3 of Part 2 of the Housing and
Regeneration Act 2008 who is registered with the Regulator and has not been removed from the
register.
“Regulator”
means the Homes and Communities Agency or its successor in title or any other agency
established by Government to be the regulator of Registered Providers.
“Sale”
means the sale and transfer of a Completed Open Market Dwelling.
“Shared Ownership”
Means Intermediate Housing which is to be purchased on a shared ownership basis
“Viability Assessment”
Means an assessment of the financial viability of the Development to be prepared on behalf of the
Owner and submitted to the Council when the Owner states that it is not viable to provide the full
requirement of Affordable Housing Units such viability assessment to be an open book appraisal
2

providing accurate and robust data reflecting the costs and incomes incurred and anticipated in
relation to this development.
THIRD SCHEDULE (SCHEDULE FOR AFFORDABLE HOUSING)
The Owner’s Covenants with the Council
1.1 Prior to submission of a reserved matters application pursuant to the Planning Permission the
Owner shall submit for approval by the Council an Affordable Housing Scheme.
1.2 To transfer the Affordable Housing Units in accordance with the Affordable Housing Scheme to
a Registered Provider in accordance with paragraphs 1.4 and 1.5 of this Schedule without
recourse to the provision of public subsidy from the Council or the Homes and Communities
Agency or other public body.
1.3 The Affordable Housing Units shall be designed and constructed in accordance with the
Homes and Communities Agency’s Design and Quality Standards or to a standard that is
demonstrated to be acceptable to the Registered Provider due to take transfer of the Affordable
Housing Units and subject to the Council’s prior written consent.
1.4 Not to cause permit or allow the Occupation or Sale of fifty per cent (50%) of the Open Market
Dwellings until fifty per cent (50%) of the Affordable Housing Units have been completed and
transferred to a Registered Provider.
1.5 Not to cause permit or allow the Occupation or Sale of the final Open Market Dwelling until all
of the Affordable Housing Units have been completed and transferred to a Registered Provider.
1.6 The Registered Provider as successor in title to the Owner upon taking transfer of the
Affordable Housing Units shall enter into a Nominations Agreement with the Council in respect of
the Affordable Housing Units.
1.7 From the date of Practical Completion of the Affordable Housing Units they shall not be used
other than for Affordable Housing save that this obligation shall not be binding on:
1.7.1 any Protected Tenant or any mortgagee or chargee of the Protected Tenant or any person
deriving title from the Protected Tenant or any successor in title thereto and their respective
mortgagees and chargees; or
1.7.2 any Chargee provided that the Chargee shall have first complied with the Chargee’s Duty at
paragraph 1.8 of this Schedule
1.7.3 any purchaser from a mortgagee of an individual Affordable Housing Unit pursuant to any
default by the individual mortgagor.
1.8 The Chargee shall prior to seeking to dispose of the Affordable Housing Units pursuant to any
default under the terms of its mortgage or charge shall give not less than 2 months’ prior written
notice to the Chief Executive of the Council of its intention to dispose and:
1.8.1 in the event that the Council responds within 2 months from receipt of the notice indicating
that arrangements for the transfer of the Affordable Housing Units can be made in such a way as
to safeguard them as Affordable Housing then the Chargee shall co-operate with such
arrangements and use its reasonable endeavours to secure such transfer
3

1.8.2 if the Council does not serve its response to the notice served under paragraph 1.8.1 within
the 2 months then the Chargee shall be entitled to dispose free of the restrictions set out in this
Schedule
1.8.3 if the Council or any other person cannot within 1 month of the date of service of its response
under paragraph 1.8.1 secure such transfer then provided that the Chargee shall have complied
with its obligations under paragraph 1.8.1 the Chargee shall be entitled to dispose free of the
restrictions set out in the Third Schedule PROVIDED THAT at all times the rights and obligations in
this paragraph 1.8 shall not require the Chargee to act contrary to its duties under the charge or
mortgage and that the Council must give full consideration to protecting the interest of the Chargee
in respect of moneys outstanding under the charge or mortgage
1.9 In the event that no Registered Provider can be found to whom the Affordable Housing Units
can be transferred in accordance with the Affordable Housing Scheme the Owner will inform the
Council in writing no later than two (2) months from the Commencement of Construction of the first
Affordable Housing Unit that it has not been possible to contract with a Registered Provider for the
delivery of the Affordable Housing Units.
The Owner will provide evidence as reasonably required by the Council of its attempts to contract
with a Registered Provider for the delivery of the Affordable Housing Units. The Owner and the
Council will then work together to agree an alternative scheme for the delivery of the Affordable
Housing Units for the Development exploring all available options to deliver the Affordable Housing
Units.
1.10 In the event that an alternative option to deliver the Affordable Housing is required through the
operation of paragraph 1.9 the resolution to deliver the Affordable Housing required for the
Development shall be documented in a deed of variation pursuant to section 106A of the Act
varying the terms of this Deed such document to be approved by the Council and the Owner and
executed and delivered as a deed as soon as reasonably possible thereafter and the parties shall
implement the variation.
FIFTH SCHEDULE
Council’s Covenants with the Owner
1.1 Following approval of the Affordable Housing Scheme the Council shall attach a copy of the
approved scheme to the original of this Deed.
4