Grampian condition

A Grampian condition is a negatively worded planning condition that prevents development from starting, or from being occupied, until something has happened on land the applicant does not control. The usual example is a highway improvement outside the site, or a drainage connection across a neighbour's field. The condition does not require the applicant to do the work. It simply stops the permission being implemented until the work is done.

The name comes from a House of Lords decision in the mid 1980s involving a Scottish regional council, where permission was granted subject to a condition preventing development until a nearby road was closed.

What a negative condition does

An ordinary condition tells the applicant to do something. A negative condition tells them they cannot do something until a state of affairs exists.

That distinction is what makes the device work. A planning authority cannot impose a condition requiring a person to carry out works on land they have no right to enter, because such a condition would be unenforceable and therefore fail the tests for conditions. It can impose a condition saying no development shall take place until those works have been carried out, because the applicant can comply by not starting.

The practical effect on the ground is the same in most cases. The developer has an incentive to bring the works about, usually by entering an agreement with whoever controls the land, and the authority gets the outcome it wanted without an unenforceable obligation.

Land outside the applicant's control

The typical situations are highway works in the adopted highway, a drainage connection through third party land, a visibility splay across a neighbouring frontage, off site ecological mitigation, and the closure or diversion of a public right of way.

Highway works deserve particular attention, because they are almost always delivered under a separate agreement with the highway authority under section 278 of the Highways Act 1980. The planning condition and the highway agreement do different jobs: the condition controls when development may proceed, the agreement controls how the works are designed, built and paid for. Both are needed, and confusing them is a common error in a condition discharge submission.

The reasonable prospects test

For a period the courts took the view that a negative condition should not be imposed where there was no reasonable prospect of the required action happening within the life of the permission. That position was revisited by the House of Lords in the early 1990s, which held that the absence of a prospect did not prevent such a condition being imposed.

What survives is a question of judgement rather than a bar. Prospects go to whether permission should be granted at all, and to the weight a decision maker gives to the benefits of a scheme that may never be built. An inspector asked to allow an appeal subject to a condition depending on works a third party has refused to permit will say so in the decision.

So if you are proposing a Grampian condition, evidence the prospect. A letter from the landowner, a signed heads of terms, a completed option, or confirmation from the highway authority that it will enter an agreement all help. Silence invites a refusal on deliverability.

Typical wording and the tests it must meet

Conditions have to be necessary, relevant to planning, relevant to the development permitted, enforceable, precise and reasonable in all other respects. A negative condition fails most often on precision.

Note: since the Neighbourhood Planning Act 2017 an authority cannot impose a condition that has to be discharged before development starts without the applicant's written agreement, following a prescribed procedure. Most Grampian conditions are worded that way, so the drafting is negotiable before the decision is issued rather than only afterwards.

Discharge and the evidence required

Discharging a Grampian condition means proving that the off site event has happened. Assemble the evidence as the works proceed rather than afterwards.

For highway works, the usual pack is the completed section 278 works, as built drawings, the highway authority's certificate or written confirmation of completion, and a dated photographic record. For a drainage connection, the undertaker's confirmation of connection, the as built plan and the adoption position. For ecological mitigation, the ecologist's completion statement against the approved scheme.

Submit it as a formal application to discharge the condition and keep the decision notice with the title deeds. A purchaser's solicitor will ask, and a permission with an undischarged start of works condition and works already under way is a permission that may not have been lawfully implemented.

Where an obligation is used instead

Conditions cannot require the payment of money and cannot require a person to enter into an agreement. Where the authority needs a financial contribution towards off site works, or needs the developer to covenant to do something, the route is a planning obligation under section 106 rather than a condition.

In practice the two are often used together: an obligation securing the contribution and the agreement, and a condition preventing occupation until the works are complete. Where the off site works are highway improvements on the strategic network, the position is complicated further by the powers the relevant body has to restrict the grant of permission, which our note on holding directions in planning explains.

Illustrative example: an eleven dwelling scheme requiring a new footway across a verge in third party ownership. Permission was granted subject to a condition preventing occupation of any dwelling until the footway was constructed and open. The developer negotiated a licence with the landowner, delivered the footway under a highway agreement, and discharged the condition before the first completion. Had the licence failed, the permission would have remained unimplementable, which the appraisal had recognised from the outset.

Checking one before you buy a consented site

Four checks, before exchange rather than after.

1. Read the condition and identify exactly what has to happen, where, and who controls that land.
2. Establish whether any right of access, licence, easement or agreement is already in place, and whether it runs with the land or is personal to the seller.
3. Check whether the condition bites before development starts or before occupation, because the first blocks implementation entirely and the second only blocks the end of the programme.
4. Check the time remaining on the permission, and whether the off site works can realistically be delivered within it.

Where the off site element involves drainage, the Drainage Strategy submitted with the application will usually show the intended route and tell you whose land it crosses. Where it involves highway works, the Transport Assessment or the transport statement will describe the scheme, and the Planning Statement should record the deliverability case made at the time.

This is general guidance, not legal advice; check the position with your solicitor or a qualified professional before relying on it.

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