1.1 Subject to the terms of specific Project Agreements, hubco shall be responsible for:
1.1.1 obtaining all Consents which may be required for the performance of the Services;
1.1.2 implementing or procuring that the relevant Project Service Provider and the relevant Supply Chain Members implement each Planning Permission, Planning Agreement and Infrastructure Agreement within the period of its validity in accordance with its terms; and
1.1.3 complying with or procuring that the relevant Project Service Provider and the relevant Supply Chain Members comply with the provisions of each Planning Permission, Planning Agreement and Infrastructure Agreement,
to the extent that such Consents, Planning Permissions, Planning Agreements and Infrastructure Agreements can only be or, in terms of a Project Agreement, are required to be obtained, implemented and/or complied with by the Project Agreement Counterparty or any third party occupier of the Facilities and are not obtained, implemented and/or complied with, hubco shall not be in breach of this Agreement.
1.2 hubco and any Affected Authority shall enter into and comply with and perform any Planning Agreement and/or any Infrastructure Agreement necessary to facilitate the carrying out of the Project Services in accordance with the provisions of this Agreement and the relevant Project Agreement with the intention and proviso that the Affected Authority shall only do so if it is necessary to do so in its capacity as the owner of the land concerned. Save where agreed to the contrary by the Affected Authority and approved by the Relevant Participant(s) as part of the New Project Approval Process hubco will be responsible for all costs involved in so doing including for the avoidance of doubt the legal and administrative costs of the Affected Authority. hubco shall use all reasonable endeavours to secure the grant of Satisfactory Planning Permission or a Planning Appeal (as the case may be) through the employment of all appropriate expert witnesses.
1.3 hubco shall not object to or procure or encourage any other person to object to any application for the grant of Planning Permission submitted by hubco or the Affected Authority in respect of any part or parts of the Affected Authority's land or its facilities or proposed facilities in respect of New Projects.
1.4 The following procedure shall apply in relation to planning relating to an Affected Authority:
1.4.1 hubco shall prepare at its own expense and submit to the Affected Authority draft Planning Application(s) for the consideration and approval of the Affected Authority.
1.4.2 The Affected Authority shall within forty-two (42) Business Days of receipt of a draft Planning Application referred to in sub-paragraph 1.4.1 either approve the draft Planning Application or object to it in writing with details of the grounds of objection. hubco shall consider the Affected Authority's objection(s) and shall use all reasonable endeavours to resolve the objections. In the event of any or all of the Affected Authority's objection(s) remaining unresolved after a period of twenty (20) Business Days from receipt by hubco of the objections hubco may refer any such objection to be dealt with pursuant to Schedule Part 21 (Dispute Resolution Procedure). If the Affected Authority shall fail to so approve or fail to object to the same by notice in writing to hubco within the first-mentioned period above, the draft Planning Application shall be deemed to have been approved by the Affected Authority.
1.4.3 hubco shall within five (5) Business Days of receipt of notification in writing from the Affected Authority of its approval of the draft Planning Application referred to in sub-paragraph 1.4.1 and 1.4.2 or within five (5) Business Days of the date of the deemed approval of the draft Planning Application pursuant to the terms of sub paragraph 1.4.2 above at its own expense submit a Planning Application in the form approved or deemed to have been approved of by the Affected Authority in the joint names of hubco and the Affected Authority to the appropriate Local Planning Authority and shall use all reasonable endeavours to obtain Satisfactory Planning Permission in respect thereof.
1.4.4 If a Planning Application is:
(a) refused by the Local Planning Authority;
(b) not determined within the statutory periods required by Regulation 26(2) of the Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2008 or within any extended period of time allowed to the Local Planning Authority within which to determine the Planning Application whichever is the longer (provided that hubco shall not allow or agree to such extended period beyond the required statutory periods as aforesaid without the prior written consent of the Affected Authority); or
(c) the subject of a Planning Call-In,
hubco shall at its own expense as soon as practicable in the joint names of hubco and the Affected Authority lodge a Planning Appeal with the Scottish Ministers and prosecute the Planning Appeal (or in the case of a Planning Call-In, the Planning Application) to a conclusion with all reasonable speed and diligence and shall indemnify the Affected Authority in respect of any award of costs against the Affected Authority in its capacity as joint appellant. UNLESS a Planning Advocate has advised hubco and the Affected Authority that in all the circumstances, there is less than fifty (50%) percent chance of success of the Planning Appeal or of proceedings relating to a Planning Call-In resulting in the grant of a Satisfactory Planning Permission.
1.4.5 hubco and the Affected Authority shall within fifteen (15) Business Days of receipt by each of them of a Planning Permission issued by the Local Planning Authority notify the other in writing if they consider it to be a Satisfactory Planning Permission or whether it contains an Unreasonable Condition and shall give detailed reasons therefor. If either of them fails to so notify the other within that period the Planning Permission shall be deemed to be satisfactory to that other party.
1.4.6 If either hubco or the Affected Authority notify the other that it considers that the Planning Permission contains an Unreasonable Condition and either the other party agrees that it is unreasonable or if the outcome of a referral of the dispute between the parties in accordance with Schedule Part 21 (Dispute Resolution Procedure) is that a condition is unreasonable, hubco shall at its own expense within twenty (20) Business Days of the agreement or determination either:
(a) submit an application pursuant to section 42 of the Town and Country Planning (Scotland) Act 1997 or Section 17 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997, or Section 11 of the Planning (Hazardous Substances) (Scotland) Act 1997 for the development of the hubco Operations without complying with an Unreasonable Condition or Unreasonable Conditions subject to which the Planning Permission was granted (such application to be in a form previously approved in writing by the Affected Authority) (and in the event that such an application is made such application shall for the purpose of this Agreement be treated as a Planning Application); or
(b) (if the Affected Authority has given its consent in writing) lodge a Planning Appeal in the joint names of hubco and the Affected Authority with the Scottish Ministers and shall use all reasonable endeavours to prosecute the Planning Appeal or the Planning Application (as the case may be) with all speed and diligence and shall indemnify the Affected Authority in respect of any award of costs against the Affected Authority in its capacity as a joint appellant.
1.4.7 hubco shall use all reasonable endeavours to secure the earliest available date for a hearing or inquiry into a Planning Appeal or Planning Call-In and, unless otherwise agreed in writing by the Affected Authority, hubco shall accept the first date offered by the Directorate for Planning Inspectorate and Environmental Appeals for a hearing inquiry into a Planning Appeal or Planning Call-In.
1.4.8 hubco shall obtain the prior written approval (such approval not to be unreasonably withheld or delayed) of the Affected Authority to the appointment of the Planning Advocate and other appropriate expert witnesses proposed to be instructed in connection with a Planning Appeal or Planning Call-In or Planning Proceedings.
1.4.9 hubco shall keep the Affected Authority fully informed of the progress of a Planning Application or as the case may be a Planning Appeal, Planning Call-In or Planning Proceedings and in particular:
(a) shall keep the Affected Authority advised of hubco's progress in securing a date for a hearing or inquiry into a Planning Appeal or as the case may be Planning Call-In and the date of that hearing or inquiry;
(b) shall keep the Affected Authority advised of all meetings, discussions and negotiations in connection with a Planning Application or as the case may be a Planning Appeal, Planning Call-In or Planning Proceedings with the Local Planning Authority or any authority body or person consulted in connection with, or notified, of a Planning Application pursuant to the requirements of the Planning Act or with any third party or advisers and to allow the Affected Authority and such of its professional advisers as it shall direct to attend and to participate at all such meetings and to send to the Affected Authority and to such of its professional advisers as it shall direct copies of the minutes of all such meetings and copies of all correspondence with all such parties;
(c) shall permit the Affected Authority and/or such of its professional advisers as it shall direct to attend and participate at all conferences or, as the case may be, consultations with the Planning Advocate and at all meetings between hubco and its professional advisers in connection with a Planning Application or as the case may be a Planning Appeal, Planning Call-In or Planning Proceedings and to supply to the Affected Authority a copy of all instructions to the Planning Advocate and copies of all documents referred to therein (including hubco's precognitions);
(d) shall supply to the Affected Authority and such of its professional advisers as it shall direct a copy of all notes of conferences, or as the case may be, consultations with the Planning Advocate and minutes of all meetings between hubco and its professional advisers and all opinions and advice of the Planning Advocate and advice of hubco's experts in connection with a Planning Application or as the case may be a Planning Appeal, Planning Call-In or Planning Proceedings; and
(e) shall supply to such of the Affected Authority and such of its professional advisers as it shall reasonably direct copies of:
(i) all Planning Applications and Planning Appeals and all documents relevant to a Planning Application or as the case may be Planning Appeal, Planning Call-In including any statements or reports accompanying a Planning Application or as the case may be a Planning Appeal and statements or documents served pursuant to the Town and Country Planning (Appeals) (Scotland) Regulations 2008 and all precognitions (whether in draft or otherwise) produced by or on behalf of hubco or supplied by the Local Planning Authority or any third parties; and
(ii) all applications, affidavits, judgements and all other relevant documents in connection with any Planning Proceedings;
(f) hubco shall within five (5) Business Days of receipt of a Planning Permission issued by or on behalf of the Scottish Ministers:
(i) send a copy of the Planning Permission to the Affected Authority; and
(ii) within fifteen (15) Business Days of receipt of such aforesaid Planning Permission the parties shall give notice in writing to each other whether in their reasonable opinion acting reasonably they consider the Planning Permission to be a Satisfactory Planning Permission or whether it is subject to an Unreasonable Condition and if so specifying such condition and giving the reason why it constitutes an Unreasonable Condition. If either Party fails to so notify the other Party within that period the Planning Permission shall be deemed to be satisfactory to that Party;
(g) hubco shall enter into any Planning Agreements (in the form previously approved in writing by the Affected Authority) reasonably required by the Local Planning Authority or other competent authority as a condition of granting a Satisfactory Planning Permission unless the Planning Agreement required by the Local Planning Authority contains an Unreasonable Condition; and
(h) hubco shall comply with the provisions of a Satisfactory Planning Permission and any Planning Agreement entered into pursuant to the provisions of this Agreement. For the avoidance of doubt, to the extent that such Satisfactory Planning Permission and any Planning Agreements are not complied with by any third party occupier of the Facilities (including any Project Agreement Counterparty), hubco shall not be liable and there will be no breach of this paragraph 1.4.9(h) unless, in terms of the relevant Project Agreement, such third party occupier is the responsibility of the Project Service Provider.
1.5 The Affected Authority hereby undertakes with hubco that it shall, at the request and cost of hubco, do all acts and things reasonably necessary and within the ability and control of the Affected Authority to facilitate a Planning Application and/or Planning Appeal and shall assist in dealing with a Planning Call-In and/or Planning Proceedings and at all times at the request and cost of hubco support hubco in making pursuing and/or dealing with a Planning Application and/or Planning Appeal and/or Planning Call-In and/or Planning Proceedings and will at the request and cost of hubco enter into any Planning Agreements and Infrastructure Agreements (in a form previously approved in writing by the Affected Authority) which hubco shall reasonably require to secure a Satisfactory Planning Permission.
1.6 Where an Affected Authority is also the Local Planning Authority, this Schedule Part 12 (Planning Matters) shall (for the avoidance of doubt) be subject to Clause 26 (Agency and Participants' Statutory Authority).