Planning Obligation Agreement: Esplanade Quarter

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A decision made on 30 July 2010 regarding the Planning Obligation Agreement in respect of the Esplanade Quarter

Decision Reference: MD-TR-2010-0119
Decision Summary Title:	Planning Obligation Agreement – Esplanade Quarter		Date of Decision Summary:	28th July 2010
Decision Summary Author:	Deputy Chief Executive		Decision Summary: Public or Exempt?	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:	N/A
Written Report Title:	Planning Obligation Agreement – Esplanade Quarter		Date of Written Report:	27th July 2010
Written Report Author:	Deputy Chief Executive		Written Report : Public or Exempt?	Public
Subject: Planning Obligation Agreement – Esplanade Quarter
Decision(s): The Minister has agreed to enter into the Planning Obligation Agreement in respect of the Esplanade Quarter development on behalf of the Public.
Reason(s) for Decision: Under Standing Order 168 (2) (b) the Minister accepted the recommendation of the Deputy Chief Executive Officer on behalf of Jersey Property Holdings to agree to the above land transaction.
Resource Implications: Other than those detailed in the report there are no further financial or manpower Implications.
Action required: The Director of Jersey Property Holdings is to request the Attorney General to place the Planning Obligation Agreement in the Public Registry and to copy this agreement to the Minister for Planning and Environment, the Minister for Transport and Technical Services, the Assistant Minister for Treasury and Resources with responsibility for property, the Treasurer and the Deputy Treasurer.
Signature:		Position: Senator P F C Ozouf, Minister for Treasury and Resources
Date Signed:		Date of Decision:

Planning Obligation Agreement: Esplanade Quarter

REPORT TO THE TREASURY AND RESOURCES MINISTER

PLANNING OBLIGATION AGREEMENT IN RESPECT OF THE

ESPLANADE QUARTER

Purpose of Report

This Report should be read in conjunction with the Planning Obligation Agreement (POA) prepared for signature between the Minister for Planning and Environment, the Minister for Transport and Technical Services, the Minister for Treasury and Resources (representing the Public of the Island) and the Waterfront Enterprise Board. The Planning Obligation Agreement has been drafted under Article 25 of the Planning and Building (Jersey) Law 2002, in respect of the Outline and Detail Planning Applications P/2008/1680 and P/2008/1681, submitted by the Waterfront Enterprise Board and their original development partner, Harcourt.

Background

The Minister for Planning and Environment has indicated that he intends to determine the current applications as required under the Planning and Building (Jersey) Law 2002. However, given the scale and complexity of this overall scheme the Minister requires a Planning Obligation Agreement to be put in place between all respective parties.

What is a Planning Obligation

A Planning Obligation is a legal agreement between a developer or anyone who has an interest in the land in question and the Minister for Planning and Environment. It may require an individual or individuals to carry out certain works to provide appropriate community benefits in response to a development proposal. The Minister will seek to enter into negotiations with developers to secure obligations where it is deemed necessary. They can be made to ensure that any new development does not place a strain on existing services and facilities such as open space, roads, recreation, and leisure facilities, community services or schools. They will be used when planning conditions or other arrangements outside the planning system do not cover, or cannot cope with a particular situation, enabling a property owner or developer to overcome obstacles which might in some circumstances prevent planning permission from being granted. They will be used “on site” that is within the boundary of any site which is the subject of a development application and “off site” that is to say on land which lies outside the boundary of an application should such arrangements be deemed justifiable and appropriate.

When is a Planning Obligation Appropriate

The Minister for Planning and Environment will seek to enter into a planning obligation where it meets a number of key tests. These tests are:-

i. That it is necessary (to make a development acceptable in planning terms)

ii. That it is relevant to planning;

iii. That it is directly related to the proposed development;

iv. That it is fairly and reasonably related in scale and kind to the proposed development.

v. That it is reasonable in all other respects.

The Minister for Planning and Environment requires the public who are the ultimate land owners to be party to this POA. To ensure the public are not exposed to any undue risk, the Planning Obligation Agreement contains certain clauses that provide the Minister for Treasury and Resources with absolute discretion in setting terms and conditions which include:

· The requirement for the Leasehold Owner (WEB) to obtain performance bonds, securities and guarantees whether in favour of the Treasury and Resources Minister or otherwise to ensure that all development risks in the delivery of the Masterplan for the Esplanade Quarter are managed by the Waterfront Enterprise Board and, their development partners.

· There is provision in the POA that provides the Treasury and Resources Minister with the absolute discretion to satisfy himself that any financial risk to the Public has been eliminated before a detailed planning application is submitted for any future development schemes that fall within the Masterplan for the Esplanade Quarter.

· Before the Leasehold Owner (WEB) can enter into any development agreements with future partners, the Treasury and Resources Minister has to be satisfied that arrangements have been put in place to indemnify the Public against any financial risk to the Public which might result from for any proposed developments.

· There is a clause in the POA that provides the Treasury and Resources Minister with absolute discretion to ensure that future funding arrangements are in place for the long term upkeep and maintenance of public realm and infrastructure before detailed planning applications are submitted.

A copy of the relevant section form the Planning Obligation Agreement is attached below:

4 conditionS precedent

4.1 The provisions of this Agreement shall not come into effect unless and until a Detailed Permission (whether pursuant to the Outline Permission or otherwise) is issued by the Planning Minister save that the provisions of Clauses 4, 9, 10, 15 and 17 and any ancillary provisions required to give effect thereto shall be immediately binding on the parties to this Agreement.

4.2 The Leasehold Owner covenants with the Planning Minister and the Public not to submit any Detailed Application (save, for the avoidance of doubt, the Detailed Application submitted on 31st July 2008) without:

4.2.1 the prior written consent of the Treasury Minister, which consent may be given subject to such terms and conditions (including any requirements for performance bonds, security or guarantees whether in favour of the Treasury Minister or otherwise) as the Treasury Minister in his absolute discretion requires; and

4.2.2 such Detailed Application including proposed funding arrangements for the programme of works set out in the Long Term Streets Squares and Spaces Management and Maintenance Specification for the Planning Minister's approval.

and

Financial Closure the point at which any Development Agreement for which prior authorisation or approval is required from the Treasury Minister and for which, in that respect, the Treasury Minister has been approved by the States to give his authorisation or approval to the Leasehold Owner, has been so approved by the Treasury Minister and completed;

Recommendation:

On the basis that the Planning Obligation Agreement requires that the Leasehold Owner must obtain the full approval of the Minister for Treasury and Resources prior to submitting any future Detailed Planning Application and prior to entering into Development Agreement for the Esplanade Quarter, and that the Minister for Treasury and Resources has at his absolute discretion the power to ensure that the interests of the public are adequately protected with all necessary bonds, securities and guarantees in place to protect both the leasehold owner (WEB ) and the Public, the Treasury and Resources Minister is recommended to sign the proposed Planning Obligation Agreement.

John Richardson

Deputy Chief Executive

27 July 2010