Updated 12.7.11 The owners of the land and their successors have to fulfill the terms of what is known as a Section 106 (S106) agreement. At present the owner is Cornwall Overseas Developments Ltd, a company set up for this development and owned by Findon Urban Lofts Plc (see under "The Developer" and Findon elsewhere). To be more precise about who is liable for the s106 obligations, we will quote from the final submission of the council's QC at the public enquiry which is important to several interest parties especially as we have demonstrated that the £1.1m cash deposit will cover a relatively short period in the likely event that two or more marshals are employed: "Camden rely on the Section 106 agreement. It has to be remembered this provides three important safeguards for Camden. A.- the obligations run with the land. Anybody who buys the land from the current owners or in any other way is a successor to them (eg a long leaseholder in the flats, the owners of the Dr.s surgery or a housing association running the affordable housing) will be liable to keep the marshal on site and to maintain the footpath and the access road. This is an important point in itself. Mich of the criticism of the Applicant has been that despite teh background information provided they are a company registered in the BVI and this may make it difficult to take action against them. If this is so the sooner they sell the land the better! At worst it will simply be to another overseal registered company..." Thus, this Section 106 agreement is passed on to all future freeholders, leaseholders, those involved in the affordable flats (we don't pretend to know where those risks lie and likewise the doctor's surgery. While the assumption we believe has always been that the council would seek to recover the costs of marshalling etc if the freeholders failed to pay and the cash deposit of £1.1m was used up by suing the free holder first and then private leaseholders, the situation is not clear to us. Because of the unique access arrangements, the S106 agreement includes a number of schedules described as plans, briefs and so on. We use the word “unique” advisedly. At a public inquiry, Peter Harrison and Morag Ellis, two of the most prominent planning QCs in the land represented Camden and Findon. They agreed that they were not aware of any other situation where access to a busy public facility would be transferred to a private developer who would be obligated to manage the access by the use of marshals – for all time (usually it is only for the time taken to build a development). Camden and the Developer advocated trying the experiment and persuaded the inspector accordingly. This unique, open-ended obligation which an owner of a private flat would have is likely to be an important consideration for mortgage lenders as well as owners. Our informal research indicates that without substantial additional security, no bank or other mortgage lender would be prepared to provide a mortgage for these flats Although the law says that S106 agreements should be simple to understand, the situation here is the opposite. There are in fact three s106 agreements, each of which is attached (go to the bottom of this page and click on the appropriate file). These are:- (a) The Supplementary S106 signed and dated 30th September 2008. For most purposes, this provides the information needed. Clauses in it supersede clauses in (b) or (c). When we refer to clauses in the S106, unless stated otherwise, it will be to this document (b) The Original S106 of 10th January 2006, signed shortly after the planning permission. It was subject to conditions such as that access arrangements had to be agreed (c) The "Re-executed" S106 signed and dated 30th September 2008. This was said to be the Original, only with a new date and new signatures. In fact there are other significant differences. It neither stays true to the original, nor does it correct matters contained in the Original that are out of date. The Registered Social Landlord, One Housing Group who are expected to buy the 19 affordable flats were a party to (b) but not to (c) or (a) Important Clauses Anyone considering investing in a development such as another developer, an investor, a bank or an owner of a flat would be advised to scrutinize any S106 agreement. In this case, it could not be more important. We set out below some of the critical clauses and issues and what flows from them. Because of the large number of such clauses and issues, this section is likely to expand as we find time to add to it. Where references are made to Planning Applications, more details, including links to all text can be found in the Planning Applications page Pedestrian Access Plan re footpath. That "Plan" which is Schedule four of the S106 agreement page 53 to 58, includes the words: “the Owner shall ensure that the obligations of the Pedestrian Access Plan are strictly complied with at all times and the Owner’s obligations comprise the following as the same as shown on the Drawing [defined earlier as Drawing no 52051a/A/7a ("The Drawing")]: ….[see below for this drawing] 7. That visibility along the Pedestrian Access Way shall be such that there shall be no areas that cannot be seen by a pedestrian walking along the footpath” In September 2008, the Developer submitted an application for a Certificate of Lawfulness or "Clopud" (2008/3688/P) to make what he described as minor changes to his designs. On looking at the architect's drawings, we realised that they contravened clause 7 as they show columns which are within the footpath. Nevertheless Camden decided not to veto the changes requested, perhaps because the plans were already contravening clause 7. However, the “Informatives” to the decision approving the application read: “1. You are advised that this decision only applies to the building itself and does not apply to any changes to external areas surrounding the building including the rear service road, front footpath, turning circle and parking areas. 2. You are reminded of the need to comply with all conditions attached to the planning permission granted on 10.1.06 (ref 2005/4187/P) for the substantive scheme and with all obligations of the associated S106 legal agreements” Therefore, as things stand at the moment, the columns contravene clause 7 of the Pedestrian Access Plan which is part of the S106 agreement signed on 30th September 2008. If the columns are removed, the building will not stand up. The architect's drawing dated 7.10.08 KTW4/P A2/02 Rev B is shown below  An additional anomaly appeared when the developer submitted the Certificate of Lawfulness 2008/3688/P as it included this text “An additional [ie 5th] column is required … following the recommendations of a structural engineer”. Camden replied that that was too great a change from the original plans for a planning officer to give approval under delegated authority. The Developer then resubmitted his drawings without the additional column including the drawing above. The drawing below showing 5 columns was the one submitted originally for the Clopud number 9.7.08 KTW4/P A2/02 Rev A. Although it was not approved as the planner refused to allow it since it was outside his authority, it showed that the columns are definitely not on the edge of the walkway but some way in, so that there could not be a clear view.  Below are the Ground Floor plans submitted for approval. One shows 4, the other 5 columns. In both cases, the columns are clearly within the footpath. Drawing showing 4 columns on the right hand side. This is the drawing which was approved following the revised Certificate of Lawfulness application 2008/3688/P in September 2008 Drawing showing 5 columns below on the left hand side. This is the drawing which was originally submitted as the Certificate of Lawfulness application and which was refused. That application stated that the engineer for the developer advised that the building needs this fifth column  
These columns are in the shape of Ys with the fork about 6 ft above ground. Thus people can hide not only behind the columns but also within their forks. The danger of crime, perceived or otherwise, on the footway was a very important consideration when the pedestrian plan was drawn up. The park closes at dusk (4pm in the winter) so pedestrians have no alternative but to use this footpath unless they risk being run over on the vehicle road which has no pavements. Below is the drawing referred to in the Pedestrian Access Plan ie 52051a/A/7a  On the Planning Applications page we explain how to find the details of an application such as this Clopud “Paramount Objective” There is a definition in the Sup S106 (P8) which reads as follows: Specific reference to the Paramount Objective is made in a number of clauses in the Sup S106 agreement eg 4.23, 4.24, 4.25. The effect should be to cause the Developer and later owners of the flats to be required to pay for whatever is needed to “safeguard” etc the Sports Centre and other public facilities affected by the development. Thus, for example, additional marshals needed for busy or extended times. An extra marshal needed to be on duty at the Prince of Wales Road end of New Dalby Street. Special marshaling and other arrangements needed when the Sports Centre requires major refurbishment or rebuilding and so on. This should even include having to employ security guards for the footpath after dark should that be found to be needed to ensure that the patronage of the sports centre doesn’t drop as a result of crime or the fear of crime arising from the change in access for pedestrians. The additional potential costs to flat owners is vast – provided Camden can be trusted to enforce these clauses. Camden has frequently stressed that they see the Paramount Obejctive and Monitoring clauses as "robust" and that they intend to enforce them if necessary.Monitoring Clauses The S106 agreement includes clauses intended to ensure that the “Paramount Objective” described above and similar obligations are met. It was frequently drawn to the attention of the Developer and Camden that there have to be procedures to ensure that the arrangements were constantly reviewed and that the results of any review could not be vetoed by the owners of the land ie by the Developer or flat owners. Hence, the following clauses in the agreement which allow for review of the access including the marshalling regime and allow for the Council to insist on any needed changes. - The Service Management Plan (schedule five of the Sup S106 agreement). pages 61 to 70 contains clauses 28 to 32 which, if properly interpreted by the Council, would provide some safeguards for the Sports Centre, but only by creating an almost unlimited liability for higher service charges to the owners eg of flats. - The Traffic Management Brief (schedule 6 of the S106 agreement, page 73 to 77) clauses 14 to 19. These are similar to clauses in the Service Management Plan Accommodation and functioning of marshals We have pointed out on several occasions that nowhere is it described where a marshal will operate from, sit, monitor CCTV, have toilet facilities and so on. Marshals are employed by the Developer and then the owners of the flats to fulfill their obligations to the Sports Centre and other facilities dependent upon the new access routes. At the public inquiry, it was implied that marshals would share facilities with the concierge whose responsibilities are to the private flats which are at the Prince of Wales Road end - the opposite end to where the marshal is meant to be stationed. Also, how marshals will control the Prince of Wales Road end of the access road when they are stationed at the Sports Centre end has not been established. This leaves the possibilities of space having to be taken out of the building to accommodate the marshal or marshals and of a second marshal having to be employed for all time. Planning permission given is dependent upon effective marshalling but the approved plans do not include for marshal's facilities. One question is whether there would have to be a new planning application to enable these facilities to be incorporated into the building. Transfer obligation re light etc per schedule 7 of the S106, part 1, clause3 and 8,P81 In the transfer of land documents from Camden to Findon via TRAC Properties, Camden rightly prevented the new owners from objecting to light etc being taken away from them if there are new structures etc close to the development. The section "Rights reserved for the benefit of other Land [defined as "Retained Land" which essentially is the rest of Talacre Park and Sports Centre] included these two clauses: "3. The full and free right to deal with the Retained Land and at any time to erect or permit to be erected any building or other structures now or at any time standing on any part of the Retained Land even if they obstruct or interfere with the passage of light or air to any building upon the Property and any access of light or air to any building upon the Property and any access of light or air over any Retained Land shall be deemed to be enjoyed by licence or consent of the Transferor" "8. There is not included in the transfer of the Property to the Transferee any right of light or air over the Property which would prejudicially affect the user of the Retained Land for building or other purposes so as to make the same below the quantity or quality thereof now enjoyed by the Retained Land provided that the carrying out of the Development (as defined in the Section 106 Agreement) or any subsequent or amended application for such development shall not be deemed to be a breach of this covenant" Road Safety Audit on access road. A road safety audit was carried out for Prince of Wales Road, prior to the public inquiry. It was carried out by a different department of Buchanans who were the developer's engineers. They carried out no surveys on Prince of Wales Road or Dalby Street. The audit was very limited in scope. However, the audit report was very critical especially about the vision from the juction of the new Dalby St and Prince of Wales Road. At the inquiry, a promise was made by the Developer and Council that a road safety audit would be carried out on the access routes. After the enquiry, the Council announced that it would only be a "stage 2" audit alongside the stage 2 audit of the earlier audit. As we understand that at Stage 2, the auditors are not in a position to comment in a way that would change a design - only on matters of detail, this was a very serious breach of what we had been told. Even with the current usage of the Sports Centre, these routes appear quite inadequate. Any audit should also take account of the fact that the Sports Centre has to be allowed to adapt over the years both in its built structure and its operations and the routes have to be fit for any such eventuality. Disabled parking We have recently drawn attention to the fact that at present, there are 3 disabled parking bays and there are often spaces that disabled drivers (or the drivers of disabled children, especially) can use on existing Dalby Street. If the development is built there will only be the 3 disabled bays and they will have to be shared with the owners, visitors and workers in both the 55 flats and the doctors surgery. The Council showed concern that this point had been missed in the process. Since it seemed to be the Developer's responsibility to produce access plans and the Council's to approve them, the fact that this matter had not been raised until December 2008 may have been the Developer's omission. In any event, in order for disabled visitors to the Sports Centre not to be disadvantaged by the development, something drastic needs to be done and, in view of the shortage of space resulting from the size of the development, its difficult to see what it will be. Waiting facilities for vehicles delivering children Depending upon which architect's drawing is correct, there is either one or no place for vehicles using New Dalby Street to wait while children can be safely delivered or collected from the Sports Centre. At the busiest time of the day (3.30pm to 6pm) there is an average of over one car a minute using Dalby Street. Most of these vehicles are delivering or collecting children whom the Sports Centre require to be signed in or out by a parent or carer. It is up to the Developer, flat owners and Council to reconcile what appears to be an impossible situation, bearing in mind the "paramount objective" referrred to earlier. Town GreenBelow are extracts from the Plan showing the Town Green that was registered in 2010. The first shows the middle part of the plan and includes all the area shown by the red line that has become a Town Green and covered by the legislation. The second and third extracts show the west and east halves of the planThe text at the top of the east half of the plan sets out the situation with regard to a strip shown in yellow on the west edge of Dalby Street as follows "1.2M wide strip adjacent to Dalby Street Proposed development. To be registered after material completion of Dalby Street development or December 2013 whichever is the earlier.  
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