Appeal Contingency

means [to be settled on a project by project basis];198

Architectural Enhancement

means any required enhancement to the Design Proposal in respect of the following:

[to be agreed on a project specific basis]199

Challenge Period

means the expiry of the later of:

(a)  the period prescribed by [statute] during which a third party may institute a challenge which could result in the quashing or modification of the relevant decision of the Planning Authority; and

(b)  where such a challenge is initiated within the period in (a) above the period up to and including the final determination or withdrawal of that challenge plus five (5) Business Days;

Deemed Refusal

means any failure to determine a Planning Application by the Planning Authority within the statutory period which would entitle the Contractor to appeal against the deemed refusal of that Planning Application or any other period which the Contractor and the Planning Authority may agree shall constitute the period for determination of the Planning Application for the purposes of any appeal by the Contractor;

Design Proposal

means in relation to the relevant Facility, the design proposals for the Facility set out in [Schedule 29 (Design Proposal)] and developed pursuant to paragraph 3.9;200

Judicial Review Challenge

means proceedings brought under Part 54 of the Civil Procedure Rules or by any party other than the Contractor under Section 288 of the Planning Act in respect of the Planning Permission;

Leading Counsel

means counsel experienced in town and country planning matters and practising at the town and country planning bar who:

(a)  shall be agreed upon by the Parties or, in default of agreement shall be of 15 years' call and identified by the Chairman of the Planning and Environmental Bar Association or his deputy; and

(b)  accepts instructions to provide an opinion pursuant to paragraph 2 (Planning Consents);

Off-Site Expenditure

means any costs or expenses, relating to land outside the [specify relevant facility] incurred in order to comply with or fulfil any requirement or obligation or condition of any Planning Permission, associated Planning Agreement or agreement with any highway authority having a value in excess of [£[             ]];

Off Site Works

means any works, relating to land outside the [specify relevant facility] in order to comply with or fulfil any requirement or obligation or condition of any Planning Permission, associated Planning Agreement or agreement with any highway authority;

Planning Agreement

means:

(a)  Section 106 of the Town and Country Planning Act 1990;

(b)  Section 38 or 278 Highways Act 1980;

(c)  Section 104 Water Industry Act 1991 or any other provision of a similar intent within the meaning of the Water Act 1989, with an appropriate authority for the supply of water or the drainage of foul water from the Site;

Planning Permission Longstop Date

means in respect of the Facility, the date as set out in Schedule 8 (Key Dates);

Satisfactory Planning Permission

means a Planning Permission with the Challenge Period expired (and with any Proceedings having finally been determined such that the Planning Permission has been upheld and may be implemented)201 for [specify facility], together with any associated Planning Agreement or agreement with any Relevant Authority which is a permission for the description of the development202 which is the subject of the agreed Planning Application for the [specify facility] and does not impose on the Contractor by way of condition or other obligation any of the following requirements:

(a)  a requirement to obtain the agreement of a third party other than [to be specified] in respect of land outside the [specify facility] other than:

(i)  statutory undertakers in respect of any utility; and

(ii)  a highway authority;

(b)  a requirement to carry out Off-Site Works or incur Off-Site Expenditure other than [exclusions to be negotiated on a project specific basis];

(c)  a requirement which renders the Contractor unable to deliver or perform all or any of the Services as are to be provided at the [specify facility] in accordance with the Authority's Requirements or Service Delivery Plan at [facility] but only to the extent it has one or more of the following effects:

[to be agreed on a project specific basis. The definition ought not to be too narrow so Bidders are encouraged to ensure flexibility. References to "Base Case" will need to be refined but are included here to demonstrate an appreciation that the Planning Permission will need to deliver the Contractor's assumptions in relation to Third Party Waste, if applicable]

(i)  [prevents the [facility] from operating in accordance with the Authority's Requirements and the Service Delivery Plan;

(ii)  restricts the number of waste carrying vehicle movements to and from the Site to less than the minimum inward movements of waste carrying vehicles per day as set out in [             ] of the Service Delivery Plan or Base Case;

(iii)  restricts access to the public otherwise than as set out in the Service Delivery Plan;

(iv)  requires that any Contract Waste will be delivered otherwise than by [road going vehicles alone];

(v)  restricts the hours of delivery of Contract Waste to the Site otherwise than as set out in the Service Delivery Plan;

(vi)  causes the Contractor to be in breach of the [Environmental Permit];

(vii)  limits the life of the planning permission granted for the [Facility] to less than the period from the date that the planning permission is granted until the original Expiry Date; and

(viii)  [restricts tonnage levels of Contract Waste to be received and/or processed at the Site otherwise than as set out in the Service Delivery Plan or Base Case203;]

and an "Unsatisfactory Planning Permission" is one which is not a Satisfactory Planning Permission [provided that where any of the requirements covered by limbs (i) to (viii)  above can by covered by a Planning Contingency204 then such requirement or requirements shall not constitute an Unsatisfactory Planning Permission where such requirement has a financial impact only];