The WIDP Contract allocates responsibility for securing a Satisfactory Planning Permission to the Contractor and requires the Contractor to use All Reasonable Endeavours. It also includes:
• a detailed definition of All Reasonable Endeavours; and
• a process by which the Contractor can gain comfort during the process that the Authority accepts that the Contractor has used All Reasonable Endeavours up to that point in time.
The significance of these provisions is that the Contractor is only entitled to compensation in the event of termination for planning failure if the Contractor has used All Reasonable Endeavours to secure planning. Therefore the relevant provisions are very important for the Contractor and it is likely to be very focussed on complying with the contractual requirements. In the WIDP Contract these include giving the Authority (in practice, the Contract Manager) a quarterly account of what actions the Contractor has taken in the previous quarter and what actions it intends to take in the following quarter. Authorities may wish to require the Contractor to give monthly updates.
The Authority has a right to respond and request that more needs to be done but can only do so within the time limit specified. This is five Business Days in the WIDP Contract (Schedule 26) so the Contract Manager must ensure the Authority has systems in place to allow it to evaluate, and respond quickly to, the quarterly notice. The Authority may need to take specialist advice before responding.
The Contractor will be responsible for undertaking the consultation exercises required as part of the planning application.
Under the WIDP Contract there is a requirement for the Contractor to seek prior written consent from the Authority prior to varying the Planning Application There is also an obligation to prevent any third party over which the Contractor has control from objecting to the planning application.