Terms and conditions

Norfolk County Council as Lead Local Flood Authority, Pre-application Advice Service - Terms and conditions

August 2020

1. Definitions and Interpretation

1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions:

"Agreement" means the Request for Pre-Application Advice for SuDS, the Council's response, any clarifications or communications between the Council and the Client and these terms and conditions;

"Client" means the client requesting the Services and described in the Request for Pre-Application Advice for SuDS;

"Commencement Date" means the date of the letter confirming that the Council has logged the Client's request for Services;

"Council" means the Norfolk County Council of County Hall, Martineau Lane, Norwich, NR1 2DH who is the Lead Local Flood Authority established under the Flood and Water Management Act 2010;

"Data Controller" has the meaning as set out in the Data Protection Legislation;

"Data Protection Legislation" means any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the GDPR and any other directly applicable European Union regulation relating to privacy;

"GDPR" means the General Data Protection Regulation ((EU) 2016/679);

"Insolvency Event" means that a party, or in relation to a party:

(a) suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the IA 1986 as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the IA 1986;

(b) commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company, limited liability partnership or partnership);

(d) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company);

(e) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;

(f) a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;

(g) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days.

"Request for Pre-Application Advice for SuDS" means the form completed by the Client to request Services from the Council;

"Services"means the discretionary services of the Council to provide surface water flood and drainage advice via correspondence or meetings that may affect a planning application on the Site;

"Site" means the Client's site described in the Request for Pre-Application Advice for SuDS;

"Statutory Framework" means the legislation in force and the policies of the relevant planning authority made available to the Council;

"Sum" means the amount which shall become due and payable by the Client to the Council in respect of the Services provided and set out in the correspondence between the Client and the Council;

1.1 Words in the singular shall include the plural and vice versa.

1.2 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.3 Where the words include(s), including or in particular are used in these terms and conditions, they are deemed to have the words without limitation following them and where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.

1.4 If there is any ambiguity or inconsistency in or between the documents comprising this Agreement, these terms and conditions shall take precedence.

2. Services

2.1 The Council shall from the Commencement Date provide the Services in accordance with the Agreement.

2.2 Except where otherwise specified, the term of this Agreement shall be from the Commencement Date until the Council has given its advice and in its reasonable view has completed the Services.

2.3 The Council shall obtain the approval of the Council regarding the contents of any publicity statement, public announcement or communication in relation to the Services prior to issuing it.

2.4 The Council has a complaints procedure that shall be applied to the Services.

2.5 Where the Council is required to processes any personal data in order to comply with this Agreement, it does so as Data Controller and will comply with the Data Protection Legislation.

3. Payment of the Sum

3.1 Subject to clause 4.2, the Client shall pay to the Council in cleared funds, the Sum for the performance of the Services, together with any applicable value added tax.

3.2 The Client shall pay any invoice submitted to it in relation to the provision of the Service in full and without deduction, set off, counterclaim or withholding of any kind within 14 days of the date of the invoice and in accordance with any instruction as to method issued by the Council from time to time.

4. Limitation of Liability

4.1 The Client acknowledges and agrees that the Council shall provide the Services:

(a) only and particularly in relation to the Site; and

(b) based on the information provided by the Client in the Request for Pre-Application Advice for SuDS; and

4.2 Should the Client amend or update the information provided in the Request for Pre-Application Advice for SuDS following the Commencement Date or the Statutory Framework changes between the Commencement Date and the completion of the Services the Council shall be entitled to increase the Sum by such reasonable amount as it considers appropriate.

4.4 Further to clause 4.2, the Council shall not be liable for and shall be under no obligation to change, redo or update their advice following a change in any of the circumstances described in clauses 4.1(a) - (c) once the Services have been provided. The Client shall make a further Request for Pre-Application Advice for SuDS for an additional sum if it wishes the Council to do so.

4.4 Further to clause 4.3, the Client further accepts that:

(a) there is a risk that a delay between the provision of the Services and the submission by them of an application for planning permission could mean a change in any of the circumstances described in clauses 4.1(a) - (c); and

(b) the longer the delay is between the provision of the Services and the submission by them of an application for planning permission, the higher that risk will be; and

(c) it is the obligation of the Client to check that the Services may still be used in support of any planning application, and the Council shall face no liability as a result of any action or taken under this clause 4.4.

4.5 The provision of the Services or the particulars of the advice supplied in the course of it to the Client shall not bind the Council or any other relevant decision maker to any subsequent course of action or prejudice or conflict with any future decision to be made by them, including in the Council's role as a statutory consultee.

4.6 The Council shall not be liable for force majeure, being an event or sequence of events beyond its reasonable control which may prevent or delay it from providing its obligations under this Agreement.

4.7 To the extent legally possible, the Council limits its liability under this Agreement for any claims arising out of or in consequence of the provision of the Services. The extent of the Council's liability (regardless of whether such liability arises in tort, contract or any other way and whether or not caused by negligence or misrepresentation) shall be limited to the Sum. The Council shall not be liable to the Client for any indirect or consequential loss, loss of profit, loss of contract, loss of opportunity or harm to reputation.

5. Freedom of Information

5.1 The parties acknowledge that the Council is subject to the requirements under the Freedom of Information Act 2000 ('the FOIA') and the Client shall assist and cooperate with them free of charge to enable them to comply with these information disclosure requirements.

5.2 The Client acknowledges that the Council may be obliged to disclose information:

(i) without consulting with the Client, or

(ii) following consultation with the Client and having taken its views into account.

6. Termination

6.1 Either party may (without prejudice to any other rights or remedies under this Agreement including other rights to terminate the Agreement) terminate this Agreement immediately on giving notice in writing expiring at any time if any one or more of the following events occur: -

(a) the other party commits a material breach of any terms of this Agreement (being a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from this Agreement), which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

(b) the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;

6.2 Without any prejudice to any other right it may have, the Council shall be entitled to immediately terminate this Agreement where the Client commits an offence under the Bribery Act 2010 or section 117(2) of the Local Government Act 1972 in relation to any agreement with the Council.

7. Dispute Resolution

7.1 If any dispute or difference whatsoever arises between the parties in connection with or arising out of this Agreement either party may give the other seven days notice to resolve the dispute or difference through Alternative Dispute Resolution ('ADR') in accordance with the mediation procedure of the Centre for Effective Dispute Resolution. If the parties fail to agree terms of settlement of their dispute or difference within 56 days of the receipt of such notice or the party to whom the notice is given fails to participate in the ADR procedure then the matter may be referred to the Courts of England.

8. Notices

8.1 Except as otherwise provided in this Agreement all notices which are required to be given under this Agreement shall be in writing and shall be sent to the address of the person set out in this Agreement or such other address in England as the recipient may designate by notice given in accordance with the provisions of this clause. Any such notice may be delivered personally or by first class pre-paid letter and shall be deemed to have been served on the day of delivery if delivered by hand when delivered and if by first class post 48 hours after posting

9. Assignment and Sub-letting

9.1 This Agreement is personal to the parties who shall not assign, sub-let or otherwise dispose of the Agreement without the previous consent in writing of the other party.

10. Waiver

10.1 No waiver shall be effective unless it is expressly stated to be a waiver and communicated to the other party in writing in accordance with the provisions of clause 8.

10.2 The failure of either party to insist upon strict performance of any provision of this Agreement or the failure of either party to exercise any right or remedy shall not constitute a waiver of that right or remedy and shall not cause a diminution of the obligations established by the Agreement.

10.3 A waiver by a party of a breach of any provision of this Agreement shall not be considered as a waiver of any subsequent breach of the same or any other provision.

11. Variation

11.1 No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties.

12. Severability

12.1 If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any court or competent jurisdiction, such provision shall be severed and the remainder of the provisions of this Agreement shall continue in full force and effect as if the Agreement had been executed with the invalid, illegal or unenforceable provision eliminated.

12.2 In the event of a holding of invalidity so fundamental as to prevent the accomplishment of the purpose of the Agreement, the parties shall immediately commence negotiations in good faith to remedy the invalidity.

13. Third Party Rights

13.1 This Agreement is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by anyone else.

14. No Agency

14.1 The Council is an independent contractor and nothing in this Agreement is intended to, or shall operate to, create a partnership or any employment relationship between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

15. Governing Law

15.1 This Agreement shall be governed by and construed in accordance with English Law and the parties submit to the exclusive jurisdiction of the courts of England.