Westminster
18.4.16. Please provide me with details of and the current status for all cases in the last 12 years where the Council has sold land to a private developer and included an Overage agreement under which the Council would share in any profit made by the developer. I would prefer your response to be by email.
N J Harding, 1 St Ann’s Gardens, NW5 4ER. 020 7485 9397
19.5.16. Westminster to NJH
Dear Mr Harding,
In response to your information request regarding the number of land/building sales over the last 10 years which included an overage provision, we have identified three such sites.
Chiltern Street Depot
North Wharf Road
Cleveland Street
If you are dissatisfied with the handling of your request, you have the right to ask for an internal review. Internal review requests should be submitted within two months of the date of receipt of the response to your original letter and should be addressed to:
Knowledge and Information Management Team
Westminster City Hall, 10th Floor East, 64 Victoria Street, London SW1E 6QP
foia@westminster.gov.uk
6.6.16 NJH to Westminster
I refer to your FoI response reference 1975737. Please, as a follow up or new FoI request, provide me with details of the current status of the Chiltern Street Depot site including:
1. The amount received by the Council and how it was calculated.
2. If the contract has not been completed, the current situation.
3. The text of the overage agreement or overage clause in the land sale agreement
Regards, Nicholas Harding
8.6.16 Westminster to NJH
Thank you for your request for information that was received on 6 June 2016.
Request summary
I refer to your FoI response reference 1975737. Please, as a follow up or new FoI request, provide me with details of the current status of the Chiltern Street Depot site including:
1. The amount received by the Council and how it was calculated.
2. If the contract has not been completed, the current situation.
3. The text of the overage agreement or overage clause in the land sale agreement
We are dealing with your request under the Freedom of Information Act 2000 and we aim to send a response by 4 July 2016.
In some case, a fee may be payable. If we decide a fee is payable, we will send you a fee notice and we will require you to pay the fee before proceeding with your request.
The Freedom of Information Act 2000 may restrict the release of some or all of the information you have requested. We will carry out an assessment and if any exemptions apply to some or all of the information then we might not provide that information to you. We will inform you if this is the case and advise you of your rights to request an internal review and to complain to the Information Commissioner's Office.
We will also advise you if we cannot provide you with the information requested for any other reason together with the reason(s) why and details of how you may appeal (if appropriate).
Yours sincerely
S Tariq
Westminster City Council
Tel: 0207 641 3921
Email: foi@westminster.gov.uk
4.7.16 Westminster to NJH re Chiltern St
Dear Mr Harding,
Further to your information request regarding Chiltern Street Depot site, I can confirm that the contract has been completed. Regarding the other information you have requested, please note that in accordance with the Freedom of Information Act 2000 I am consulting with a third party prior to disclosing their information.
I intend to release the information, subject to their comments.
I will contact you again shortly.
Yours sincerely,
Ian Clarke Performance Manager, Growth, Planning and Housing, Westminster City Council
8.7.16 Westminster to NJH re Chiltern St
Dear Mr Harding,
Further to my email earlier this week, I can confirm that we have consulted the third party and are now in a position to provide the information you requested.
Your information request and the Council’s response are set out below.
I refer to your FoI response reference 1975737. Please, as a follow up or new FoI request, provide me with details of the current status of the Chiltern Street Depot site including:
1. The amount received by the Council and how it was calculated. The amount Westminster received was £3,408,000.00. The method of calculation is set out in the attached schedule.
2. If the contract has not been completed, the current situation. Completed.
3. The text of the overage agreement or overage clause in the land sale agreement. See attached schedule.
If you are dissatisfied with the handling of your request, you have the right to ask for an internal review. Internal review requests should be submitted within two months of the date of receipt of the response to your original letter and should be addressed to:
Knowledge and Information Management Team
Westminster City Hall, 10th Floor East, 64 Victoria Street, London SW1E 6QP
foia@westminster.gov.uk
If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. Further information is also available from the Information Commissioner at:
Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF
Tel: 0303 123 1113 or 01625 54 57 45, Fax: 01625 524510, Web: www.ico.org.uk
Yours sincerely,
Ian Clarke
THIS EMAIL CONTAINED AN ATTACHMENT WHICH IS ATTACHED TO THIS WEB PAGE [NOW LINKED HERE]. BELOW ARE MY [NJH] NOTES FROM A PARTIAL SCRUTINY
Report 17.12.15 from Gerald Eve LLP, Confidential
160 pages being a 48 page report followed by Appendices
Clause 2.1/page 4. Per Agreement dated 1.4.10 between Westminster and Triland (Chiltern Street) Limited, then Paddington Street GP Limited, Gerald Eve appointed as Valuation Surveyor to value property in Section 5 per the 5th Schedule to the Agreement. Incorporating the International Valuation Standards of RICS Jan 2014.
2.4./4. Valuation Date = Trigger Date, means the first Practical Completion Date that occurs when the aggregate GEA of the buildings exceeds 190k sq ft, meaning it became 25.11.15, cert agreed by both parties – Certificate in Appendix C.
2.11./6. Restriction on publication. Valuation capable of being investigated by the RICS …
2.13./7. Property inspected 15.11.15, assumption no material change between then and the Trigger Date if different
3.7/7. Property at junction Paddington St and Chiltern. At east is Paddington St Gardens, bisected by Paddington St. NW is U of Westminster and 23 storey Luxborough Tower.
4.4./9. Significant amount of work needed before completion except for affordable block which is finished
5.3./11. Private Residential 43 flats (after consented changes) made up of-
[Detail shown in columnar form]
5.5. /12. Commercial A1 [shops] G!A 1,867 sq ft. NIA 1,653 sq ft, ITZA 590 sq ft. A3/A4 [Restaurants/Drinking establishments] 4,186 sq ft, D2 [Assembly, Leisure eg Gym] 14,138 sq ft
5.6./12. Storage, complex
5.7./13. Car Parking 34 spaces to be included per Overage agt, 38 spaces excluded per that agreement
8.1./17. Planning Application nos 10/10305/FULL 2.12.11 Granted. 12/09397/FULL 11.4.13 Granted. 15/01247/FULL 19.8.15 Granted
8.3./18. Assumes all of s106 obligations met, except this Overage agt
8.4./18. The overage calculation required a valuation of “The Market Value of the Unencumbered freehold of the Property and the buildings erected upon it as at the Trigger Date together with the benefit of any Consented Additions together with the Market Value (where positive) of any derivative, right, interest or estate created (or agreed to be created) out of the said freehold (but excluding the Market Value of any car parking spaces at the lowest basement level)” SEE APP D
11.1. Heads of Terms agreed 23.2.15 between Paddington Street GP Ltd and Paddington Street Nominee Ltd and NZR Ltd trading at Bottarga. It is for 25 yrs. Rent yr1, £35k, yrs 2 and 3, £40k yr 3, £45k , yr 5, £50k
11.2./21. A3/A4 Unit. Same as A1 but rent £285k pa for 5 yrs then reviews
11.3./22. D2 Unit. Heads of Terms with confidential tenant. Term 15 yrs. Yr 1 and 2, £400k pa. Yr 3 and 4, £425k, yr 5, £450k pa
11.4./24. Private Residential. 999 year leases. 38 flats shown as having Agreements for sale. Service Ch £10 per sq ft
11.5./25. Affordable Residential. Buyer London District Housing of Studio One. Purchase price £3m
11.6./25. Street Depot. Tenant City of Westminster. 999 yrs, peppercorn rent
12. /27-35 to Market Commentary. Generally, of no interest.
12.4./34. Other upcoming residential schemes in Marylebone incl Chiltern Place, 55 units, complete q1 2018. The W1 Marylebone Gardens 19 units, 5 mews houses q3 2017. The Mansion, 9 Marylebone Lane 27 units q4 2017. Park Crescent West 73 units 2018. Marble Arch Tower 49 units 2019.
13.3./38. Gross Development Value of Commercial Units. A1 and A3/4 Units yields of 4.25%. At lease expiry, market rent capitalised into perpetuity at 4.25%. D2 unit 5%. After purchasers’ costs of 5.8%, Gross Dev Value is £14,182,989
13.4/38. Private flats. 38 exchanged agreed price £141, 742,125 less deductions - £141,366,125.
Other flats at asking price, under offer price etc, after deductions, £58, 979,000. (These incl flats valued at £25m, £12.5m and 3 over £7m)
Storage. GDVs of £10k, £140k and £1,244,802
13.5./41 Affordable Flats. “Capital Receipts received by the Buyer, therefore nil value has been attributed to this element”.
13.6. /41. Ground Rents. Total Residential GR £59,250. 4% yield, £1,400,047
13.7. /41.Car Parking where not on lowest floor or incl in flat cost, 2 spaces at £75k each
14. /42. “Market Value and Overage”. “Residual Valn approach used – MAY BE WORTH REVISITING, IF FOUND RELEVANT
14.3./42. Timescales. Construction 4 months (as advised by the Buyer), various other dates
14.4./43.. 4% SDLP
14.5./43. Finance Rate. Assumed 6% in assessment of Market Value
14.6./44. Outstanding Fees. Construction costs of £11,593,677 outstanding being about 20% of total construction costs. Various other small in context charges
14.8./44. “Return to Purchaser”. The risks purportedly covered are listed and it then says “Accordingly I have allowed for a return to a willing buyer of 10% of its cost, including the high cost of acquisition, to complete the property”. It is described as Profit in the Appraisal (appendix D) and amounts to £19,765,176 being I assume 10% of £197,651,179, although there is a difference of £58. I have not fully understood this!
14.9./45. “Market Value”. This is described as following a definition in Valuation Standard 3.2 in the Standards (presumably RICS stands?) as “The estimation amount for which an asset or liability should exchange on the valuation date between a willing buyer and a willing seller in an arm’s length transaction after proper marketing and where the parties had each acted knowledgeable, prudently and without compulsion.”
…. = £172.5m
14.10./47. Overage agt per 5th sch of Purchase Contract 1.4.10.
10% of excess over £144,670,000 to £147.5m, then 12.5%. Result therefore 10% of £147.5-£144,670,000 to £147.5m) = £283k + 12.5% of (172.5-147.5)= £3.125m. Total £3,408,000 due within 20 working days of this report.
App A./49.. Rented areas in detail. Residential areas comparatives
App B/55-94, various certs related to completion of different areas.
App C./94. Various certs and letters re trigger date etc.
App D/109 Appraisal
App E/112-116 Overage agt in purchase contract, 5th schedule
App F./117. Information Relied Upon Re Costs and Drawings. No interest? It does show the Acquisition Costs of some £35m, Development Expenses, £33m, Construction Costs £57m all totalling £140m under revised total budget forecast 30.9.15 so this could be of interest.
App G./124. Terms of Engagement. Looks to be in twice, no interest
App H./159. Photos
Questions and comments
A. The contract between Westminster and the developer was dated 1.4.10. The Trigger Date was defined as when a certain area of the development had completed. The Summary Appraisal for Phase 1 (Appendix D) shows (presumably remaining construction costs) for 5 months £11,361,784. Per 14.6 that was about 20% of total construction costs ie they were expected to be £115m. Completion (and therefore, presumably, occupation) for some flats was conditioned on Overage having been paid.
B. The Appraisal shows Acquisition Costs, Residualised Price as £172,492,751 and rounds it to £172.5m to be the amount used to calculate Overage, referred to in cl 8.4.
It appears to be made up as below. I have used my own description of some items where those given in the Appraisal are less clear, to me. I have some difficulty in following the calculation of Profit since it is shown in the appraisal as 10% of (Revenue – (Costs + Residual Value)).
16.7.16 NJH to Westminster
Dear Mr Clarke
Thank you for providing me with that information on the Chilterns, I am requesting similar information on Overage from several other inner London boroughs and receiving quite a variety of interesting responses. I am also making similar requests to Westminster (via you as before) for the other two developments mentioned in the FOI response 1975737.
I was delighted to see the Inspectors decision on the Carlton Vale pub and I think the Council has performed an enormous service in showing that planning law may be enforced in those sort of situations.
Regards, Nick Harding
16.7.16 NH to Westminster re Cleveland St
Dear Mr Clarke
I refer to your FoI response reference 1975737. Please, as a follow up or new FoI request, provide me with details of the current status of the Cleveland Strret site including:
1. The amount received by the Council and how it was calculated.
2. If the contract has not been completed, the current situation.
3. The text of the overage agreement or overage clause in the land sale agreement
Regards,
Nicholas Harding
16.7.16 NH to Westminster re North Wharf
Dear Mr Clarke
I refer to your FoI response reference 1975737. Please, as a follow up or new FoI request, provide me with details of the current status of the North Wharf Warf site including:
1. The amount received by the Council and how it was calculated.
2. If the contract has not been completed, the current situation.
3. The text of the overage agreement or overage clause in the land sale agreement
Regards,
Nicholas Harding
15.8.16 WCC to NH re Cleveland St
Dear Mr Harding,
Your information request and the Council’s response are set out below.
I refer to your FoI response reference 1975737. Please, as a follow up or new FoI request, provide me with details of the current status of the Cleveland Street site including:
1. The amount received by the Council and how it was calculated. Information not held. See response to Q2 below.
2. If the contract has not been completed, the current situation. The matter has not been completed. Negotiations are still taking place and the scheme is yet to start.
3. The text of the overage agreement or overage clause in the land sale agreement. Information not held. See response to Q2 above.
If you are dissatisfied with the handling of your request, you have the right to ask for an internal review. Internal review requests should be submitted within two months of the date of receipt of the response to your original letter and should be addressed to:
Knowledge and Information Management Team
Westminster City Hall, 10th Floor East, 64 Victoria Street, London SW1E 6QP
foia@westminster.gov.uk
If you are not content with the outcome of the internal review etc
Yours sincerely, Ian Clarke
Performance Manager,
Growth, Planning and Housing,
15.8.16 WCC to NH re North Wharf
Dear Mr Harding,
Your information request and the Council’s response are set out below.
I refer to your FoI response reference 1975737. Please, as a follow up or new FoI request, provide me with details of the current status of the North Wharf Warf site including:
1. The amount received by the Council and how it was calculated.
£7.73m. This is broken down as follows:
2. If the contract has not been completed, the current situation. Completed.
3. The text of the overage agreement or overage clause in the land sale agreement.
Under section 21 of the Freedom of Information Act (FoIA), we are not required to provide information in response to a request if it is already reasonably accessible to you. A copy of the agreement should be available from Land
Registry.https://www.gov.uk/government/organisations/land-registry
This response therefore acts as a refusal notice under section 17 of the FoIA.
If you are dissatisfied with the handling of your request, you have the right to ask for an internal review. Internal review requests should be submitted within two months of the date of receipt of the response to your original letter and should be addressed to:
Knowledge and, Information Management Team, Westminster City Hall
10th Floor East, 64 Victoria Street, London SW1E 6QP foia@westminster.gov.uk
If you are not content with the outcome of the internal review etc
NH to WCC 17.8.16 re North Wharf
Freedom of Information Act 2000 - Ref 2329533
Thank you for providing me with that information on Overage for a development on North Wharf Road
I understand what you say about the FOI legislation and published information but I am handicapped in this case as a land registry search of "North Wharf Road" will lead to too many alternatives. Can I therefore ask you to provide me with the Land Registry reference number or, failing that, provide the precise name of the site that was the subject of the sale agreement(s) that contained the Overage obligations and the date of such agreement(s)?
Yours sincerely
Nicholas Harding
WCC to NH 18.8.16
Dear Mr Harding,
My understanding is that the site is described as “Land at North Wharf Road, London W2 1LF”.
Yours sincerely, Ian Clarke
NH to Westminster 9.9.16
Dear Mr Clarke
Thank you for providing me with that information on 18.8.16. I have since obtained from the Land Registry the title extract to that project, reference NGL825309 and then obtained a copy of the TR1 filed on 14.8.2012.
The latter contains no mention of Overage, so I rang the Land Registry hoping that they had another document which would give the content of the land sale agreement. However, the lady at the Land Registry informed me that no such document had been filed.
I was very persistent in my conversation as I was aware from another situation in another borough, that a similar agreement had been filed and obtainable from the Land Registry and that the reason for it having been filed was that such filing was a condition on a s106 agreement.
I hope you therefore be able to send me the document I am seeking under the FOI Act.
Yours sincerely
Nicholas Harding
15.9.16 from Ian Clarke to NH
Dear Mr Harding,
I acknowledge receipt of your email of 9 September. I can confirm that I’m looking into your request and will get back to you as soon as possible.
Regards, Ian Clarke
11.10.16 Westminster to NH re North Wharf
I am very sorry for not having provided the information you have requested.
I have chased again today and will escalate if I don’t receive the information in the next few days. I’ll keep you informed.
Yours sincerely, Ian Clarke
Performance Manager,
13.10.16 Westminster to NH re North Wharf
Dear Mr Harding,
Please find attached the documents you requested. Once again, apologies for the delay.
Yours sincerely, Ian Clarke, Performance Manager,
Attached [Linked], 2 pdf files filed and to be scrutinised
North Wharf Deed Overage agt.pdf (914k)Nicholas Harding, 14 Nov 2016, 18:42
North Wharf Deed sup to overage agt.pdf (4299k)Nicholas Harding, 14 Nov 2016, 18:42