APPENDIX 3 – Accident report
From: “Reed, Ian” <firstname.lastname@example.org>
Date: 5 September 2013 08:25:00 GMT+01:00
To: ‘Shaw and Pearce’ <email@example.com>
Cc: “McIntyre, James R” <McIntyreJR@norfolk.pnn.police.uk>
Subject: RE: Oulton
Thank you for your patience and understanding with regards to this query. I have sought advice regarding what can be disclosed and I can confirm the following:
The collision happened around 2:00pm on 9/8/13.
The collision was on the bridge, Blickling road, Oulton.
The collision involved a Lorry and a van.
The collision was finalised as ‘slight injury’ (this generally means minor injuries only)
I hope this is sufficient for you and again thank you for your understanding regarding data disclosure.
APPENDIX 6 – SECTION 106
Draft s.106 Undertaking
Cornerstone Planning Ltd.
Re: BDC Planning Application No. 20130860
Oulton Parish Council notes your email of 4th September to Ruth Sainsbury, who was able to send it on to us the next morning, just in time for our meeting that same evening.
Yesterday, Monday September 9th, I talked on the phone with Ruth, about the next steps with this application. One of the matters we discussed was the re-wording of the Section 106 Unilateral Undertaking. I drew to her attention Note 6. of your email where you comment that “…we would welcome the Parish Council’s suggested amendments to the Unilateral Undertaking,” and asked her what action should be taken next on that point – and by whom.
Ruth suggested that I contact you direct, attaching a copy of the Parish Council’s legal advice: please see document below.
Oulton Parish Council (PC) respectfully requests:
1) that the applicants re-consider, in order to avoid any ambiguity, the wording of the draft Section 106 Undertaking according to the suggested wording in the first point in the Legal Opinion document viz: The Definition of Exempted Vehicles at Clause 2;
2) that the applicants consider what might be the substantive meaning of Clause 4.3 which deals with necessary signage. Point 4.3 currently states that:
“the Developer ensures that there are affixed and displayed and maintained on the Land such signs……as shall be required from time to time by the County Council….identifying the Restricted Route.”
Given that OTHER vehicles used “for or in connection with the conduct of agricultural operations of any description” will always be allowed by this Deed to use the Restricted Route, it is unclear to the PC what possible form any signage could take, situated at the northern end of Oulton Street, that would clearly and efficiently communicate to anybody, which vehicles were prohibited from using the Restricted Route. This question was asked of Philipp Lukas at the meeting last Thursday but he was unable to answer it satisfactorily.
To be clear: the PC agrees with the draft Section 106 that such signage is necessary, but would like clarification on what form it could take. If such a sign is extremely difficult to draft, then this in itself indicates a weakness in the Deed which will make Clause 4.3 impossible to enforce (therefore meaningless) and, by implication, the whole document problematic to enforce.
3) that the applicants note that, although Section 2.2 paragraph (iv) of their own Transport Assessment states that this unilateral undertaking (S106 agreement) will mean:
“…all deliveries to the site to be made from the south but inevitably there may be a situation where some biomass is grown close to the site to the north where the routing might involve an unreasonable detour in order to avoid using Oulton Street. In this situation it is suggested that the undertaking could allow for such traffic to be routed through Oulton Street but only after agreement by the Highway and planning authorities….”
that no such clause seems to appear in the draft copy of the Section 106 provided with the application. The Parish Council is content that no such clause appears in the Deed as, in its opinion, it would have introduced into the document an unworkable loophole, making it yet again difficult to monitor and enforce.
The Parish Council would be grateful, therefore, to receive from the applicant, as soon as possible, a re-wording of Clause 2, as in Point 1, a clarification of Clause 4.3 as in Point 2, and a confirmation of Point 3.
It remains to be noted that the Case Officer at BDC is planning to start writing her report on this application on September 25th. We need therefore to expedite this issue, as a matter of urgency, so that the Section 106 Agreement can be finalised, to the satisfaction of all parties, before that date.
I would be grateful if you could acknowledge receipt, and then I look forward to hearing from you at your earliest convenience.
Oulton Parish Council
Further to your email dated 26th July, please find below my advice in respect of the Parish Council’s questions.
1) The Definition of Exempted Vehicles at Clause 2
Whilst the definition of Exempted Vehicles does include a broad description of agricultural vehicles which can access the section of The Street coloured blue on the Plan, Restricted Vehicles are prevented from doing so by clauses 4.1 and 4.2.
Under clause 2, we can see that Restricted Vehicles include:
“…vehicles associated with the construction of the Development and agricultural vehicles associated with the operational use of the renewable energy facility…”.
This clause appears to be inserted specifically to prevent issues similar to those described as occurring at Taverham.
Whilst the intention is clear, there is still some ambiguity here, and it would be prudent to suggest to the Council that the definition of Exempted Vehicles at clause 2 is amended to expressly exclude vehicles connected to the operational use of the renewable energy facility, using similar wording to that in the definition of Restricted Vehicles.
Neither party should have objection to such a suggestion.
2) Penalties and Legal Framework for Breach
As mentioned above, breach of an undertaking is enforceable by way of an injunction requiring the parties to the undertaking to perform the duties therein, for which the local authority must apply to the court.
As the undertaking has to be signed as a deed, the provisions have an extremely strong presumption of validity in law, and so applications for these injunctions are rarely denied.
Breach of an injunction is a contempt of court. In respect of the specific clauses discussed above, the penalty could be imprisonment or an indefinite fine.
More broadly, if the injunction were to be breached for clauses which require specific actions to be taken (e.g. clause 4.3 requiring signage to be erected), breach of the injunction could be enforced by way of specific performance. This means that an officer of the court could enter the land and perform the required action at the expense of the party to the undertaking. I mention this for completeness only; it would not be suitable for the clauses you raise in your first two questions.
I hope this clears matters up for you, however should you have any further questions, or if you would like us to act for you in respect of the suggested rewording of Clause 2, please don’t hesitate to contact us. Thank you.