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23.—(1) For Article 40 of the principal Order (agreements facilitating, regulating or restricting development or use of land) there is substituted—
40.—(1) Any person who has an estate in land may enter into an agreement with the Department (referred to in this Article and Articles 40A and 40B as “a planning agreement”), enforceable to the extent mentioned in paragraph (4)—
(a)facilitating or restricting the development or use of the land in any specified way;
(b)requiring specified operations or activities to be carried out in, on, under or over the land;
(c)requiring the land to be used in any specified way; or
(d)requiring a sum or sums to be paid to the Department on a specified date or dates or periodically.
(2) A planning agreement may—
(a)be unconditional or subject to conditions;
(b)impose any restriction or requirement mentioned in paragraph (1)(a) to (c) either indefinitely or for such period or periods as may be specified; and
(c)if it requires a sum or sums to be paid, require the payment of a specified amount or an amount determined in accordance with the instrument by which the agreement is entered into and, if it requires the payment of periodical sums, require them to be paid indefinitely or for a specified period.
(3) Before entering into a planning agreement, the Department shall consult with the district council for the area in which the land which is the subject of the proposed agreement is situated.
(4) Subject to paragraph (5) a planning agreement is enforceable by the Department—
(a)against the person entering into the agreement; and
(b)against any person deriving title from that person.
(5) The instrument by which a planning agreement is entered into may provide that a person shall not be bound by the agreement in respect of any period during which he no longer has an estate in the land.
(6) A restriction or requirement imposed under a planning agreement is enforceable by injunction.
(7) Without prejudice to paragraph (6), if there is a breach of a requirement in a planning agreement to carry out any operations in, on, under or over the land to which the agreement relates, the Department may—
(a)enter the land and carry out the operations; and
(b)recover from the person or persons against whom the agreement is enforceable any expenses reasonably incurred by it in doing so and those expenses shall be a civil debt recoverable summarily.
(8) Before the Department exercises its power under paragraph (7)(a) it shall give not less than 21 days' notice of its intention to do so to any person against whom the planning agreement is enforceable.
(9) Any person who wilfully obstructs a person acting in the exercise of a power under paragraph (7)(a) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(10) A planning agreement may not be entered into except by an instrument under seal which—
(a)states that the agreement is a planning agreement for the purposes of this Article;
(b)identifies the land in which the person entering into the agreement has an estate; and
(c)identifies the person entering into the agreement and states what his estate in the land is.
(11) If a person against whom an agreement is enforceable requests the Department to supply him with a copy of the agreement, it shall be the duty of the Department to do so free of charge.
(12) Any sum or sums required to be paid under a planning agreement and any expenses recoverable by the Department under paragraph (7)(b) shall, until recovered, be deemed to be charged on and payable out of the estate in the land in relation to which they have been incurred, of the person against whom the planning agreement is enforceable.
(13) The charge created by paragraph (12) shall be enforceable in all respects as if it were a valid mortgage by deed created in favour of the Department by the person on whose estate the charge has been created (with, where necessary, any authorisation or consent required by law) and the Department may exercise the powers conferred by sections 19, 21 and 22 of the Conveyancing Act 1881 (c. 41) on mortgagees by deed accordingly.
(14) In this Article “specified” means specified in the instrument by which the planning agreement is entered into.
40A.—(1) A planning agreement may not be modified or discharged except—
(a)by agreement between the Department and the person or persons against whom the agreement is enforceable; or
(b)in accordance with this Article and Article 40B.
(2) Before entering into an agreement falling within paragraph (1)(a), the Department shall consult with the district council for the area in which the land which is the subject of the proposed agreement is situated.
(3) An agreement falling within paragraph (1)(a) shall be contained in an instrument under seal.
(4) A person against whom a planning agreement is enforceable may, at any time after the expiry of the relevant period, apply to the Department for the agreement—
(a)to have effect subject to such modifications as may be specified in the application; or
(b)to be discharged.
(5) In paragraph (4) “the relevant period” means—
(a)such period as may be prescribed; or
(b)if no period is prescribed, the period of 5 years beginning with the date on which the agreement is entered into.
(6) An application under paragraph (4) for the modification of a planning agreement may not specify a modification imposing an obligation on any other person against whom the agreement is enforceable.
(7) Where an application is made to the Department under paragraph (4), the Department may determine—
(a)that the planning agreement shall continue to have effect without modification;
(b)if the agreement no longer serves a useful purpose, that it shall be discharged; or
(c)if the agreement continues to serve a useful purpose, but would serve that purpose equally well if it had effect subject to the modifications specified in the application, that it shall have effect subject to those modifications.
(8) The Department shall give notice of its determination to the applicant within such period as may be prescribed.
(9) Where the Department determines that a planning agreement shall have effect subject to modifications specified in the application, the agreement as modified shall be enforceable as if it had been entered into on the date on which notice of the determination was given to the applicant.
(10) Regulations may make provision with respect to—
(a)the form and content of applications under paragraph (4);
(b)the publication of notices of such applications;
(c)the procedures for considering any representations made with respect to such applications; and
(d)the notices to be given to applicants of determinations under paragraph (7).
(11) Article 5 of the Property (Northern Ireland) Order 1978 (NI 4) (power of Lands Tribunal to modify or extinguish impediments) shall not apply to a planning agreement.
40B.—(1) Where the Department—
(a)fails to give notice as mentioned in Article 40A(8); or
(b)determines that a planning agreement shall continue to have effect without modifications,
the applicant may appeal to the planning appeals commission.
(2) For the purposes of an appeal under paragraph (1)(a), it shall be assumed that the Department has determined that the planning agreement shall continue to have effect without modification.
(3) An appeal under this Article shall be made by notice served within such period and in such manner as may be prescribed.
(4) Paragraphs (7) to (10) of Article 40A apply in relation to appeals to the planning appeals commission under this Article as they apply in relation to applications to the Department under that Article.
(5) Before determining the appeal the planning appeals commission shall, if either the applicant or the Department so wishes, afford to each of them an opportunity of appearing before and being heard by the planning appeals commission.
(6) The determination of an appeal by the planning appeals commission under this Article shall be final.”.
(2) In Schedule 11 to the Land Registration Act (Northern Ireland) 1970 (c. 18) (matters requiring to be registered in the Statutory Charges Register) in entry 27 after sub-paragraph (g) there is inserted—
“(gg)planning agreements under Article 40;” .
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