Grampian condition or deed of variation: which route

Choosing between a Grampian condition or a deed of variation is a choice about which instrument carries an off-site obligation, and the deciding factor is almost always control of the land. A negatively worded condition can prevent development until works are carried out on land the applicant does not own, because it bites on the permission rather than on the third party. A planning obligation can only bind land whose owner is a party to it, so a deed of variation is the route when the obligation already exists and the parties want to change it. Mixing them up produces an unenforceable condition or an agreement that cannot be completed.

Both routes have their own statutory machinery, and the five year rule applies to only one of them.

A condition on third party land against a deed change

A Grampian condition, named after the Scottish case that gave it its label, is negatively worded. It does not require anyone to do anything. It says that no development shall begin, or no dwelling shall be occupied, until a specified thing has happened. The applicant is free not to build, in which case the condition never bites and nobody is in breach.

A planning obligation under section 106 of the Town and Country Planning Act 1990 works the other way. It is a deed, it binds the land, and it is enforceable against the owner and successors in title. To bind land, the owner has to be a party. That is the structural reason a section 106 cannot capture off-site works on land belonging to someone who will not sign.

A deed of variation is an amendment to an existing obligation, made under section 106A(1)(a) by agreement between the authority and the person against whom the obligation is enforceable. It is not a route to create a new obligation over land that was never bound.

When a Grampian condition is lawful

Conditions have to satisfy the six tests set out in national guidance: necessary, relevant to planning, relevant to the development permitted, enforceable, precise, and reasonable in all other respects. A Grampian condition is tested against those like any other.

The specific question for negatively worded conditions is reasonable prospect. The House of Lords position, from the British Railways Board case, is that such a condition should not be rejected simply because there is no certainty that the action will be performed. It is objectionable only where there is no reasonable prospect at all of the action being performed within the time limit of the permission.

So the evidence matters. A letter from the third party landowner confirming willingness in principle, a heads of terms, an option agreement, or evidence that the highway authority intends to deliver the works anyway, all go to reasonable prospect. A condition imposed on nothing more than hope is vulnerable on appeal and in practice.

Two drafting points decide whether the condition works in real life. Tie the trigger to the latest point that is acceptable, usually occupation rather than commencement, so the developer can build while the off-site matter is resolved. And describe the required works precisely enough that compliance can be judged without further negotiation.

Pre-commencement conditions carry a separate procedural requirement. Section 100ZA of the 1990 Act restricts the imposition of pre-commencement conditions without the applicant's written agreement, and that applies to a Grampian condition worded to commencement.

What a deed of variation can alter

By agreement, almost anything. Section 106A(1)(a) permits modification or discharge of a planning obligation by agreement between the authority and the person bound, with no waiting period and no statutory grounds to satisfy. Trigger points, payment amounts, phasing, affordable housing tenure mix, the specification of works, the identity of a management company: all can be changed if both sides agree.

Three limits are worth remembering. A variation cannot bind land whose owner is not party to the deed, so bringing in new land means bringing in its owner. The authority will usually want the varied obligation to remain policy compliant and to satisfy the statutory tests for obligations. And where the original obligation was taken into account in granting permission, a variation that removes the planning benefit may require a fresh application rather than a deed.

The practical constraint is time. A deed of variation is a negotiated legal document, and on a scheme with a lender, a registered provider and multiple title interests it takes months rather than weeks. Build that into the programme.

The five year rule for modifying obligations

Where the authority will not agree, section 106A(3) allows an application to modify or discharge an obligation after the end of the relevant period, which is five years beginning with the date the obligation was entered into. The grounds are narrow: that the obligation no longer serves a useful purpose, or that it continues to serve a useful purpose but would do so equally well if modified as proposed.

If the authority refuses or fails to determine, section 106B provides an appeal to the Secretary of State. The appeal is on the same grounds, so an argument that the obligation is merely inconvenient or expensive will not succeed.

Appeals and applications to modify

Discharging a condition is not the same as varying it, and the distinction is routinely confused. An application for approval of details reserved by a condition asks the authority to approve what you propose. An application under section 73 of the 1990 Act asks it to grant permission without the condition or with it in different terms, and produces a new permission.

For a Grampian condition, the discharge route is the ordinary one. You carry out or secure the off-site works, submit the evidence, and the authority confirms the condition is satisfied. Where the works turn out to be impossible, section 73 is the route to remove or reword the condition, and the authority will reconsider whether the permission is acceptable without it.

Keep the paper trail. A condition discharged by email rather than by a formal decision notice causes trouble on sale, and a purchaser's solicitor will ask for the notice. The distinction between obligations that run with the land and private arrangements that do not is the same one that separates a restrictive covenant from a planning condition.

Which route suits an unbuilt off-site work

Take a junction improvement on highway land as the example. The applicant does not own it, the highway authority does, and the works will be delivered under an agreement made under section 278 of the Highways Act 1980.

A Grampian condition fits this neatly. No occupation until the junction works shown on a specified drawing have been completed in accordance with a section 278 agreement. The applicant cannot be required to do works on land it does not control, and nobody is in breach until occupation is attempted. Evidence of reasonable prospect comes from the highway authority's own response to the consultation.

A section 106 obligation would be the wrong instrument unless the highway authority were joined as a party, which it generally will not be for routine works. Where the off-site land belongs to a private third party, the choice is between a Grampian condition supported by an option or undertaking, and a tripartite agreement with that owner signed up. The second is stronger and slower. A Transport Assessment is where the need for the works is established, and it is worth drafting the condition wording at the same time rather than leaving it to the officer.

Drafting to avoid the problem in the first place

1. Identify every interest in land affected by off-site works at the start, from title rather than from the drawing.
2. Where a third party is needed, secure an option, licence or undertaking before validation, not after resolution to grant.
3. Propose your own condition wording in the planning statement, tied to occupation and referring to a numbered drawing.
4. Avoid absolute obligations in a section 106 to deliver works on land outside your control, because you will be in breach from the day the deed is completed.
5. Record in the obligation how it can be varied, including whether variations need the consent of a mortgagee or registered provider.

A Planning Statement that deals with condition and obligation drafting head on tends to produce a permission that can actually be implemented. PlanScope can produce an AI-assisted draft of that statement in minutes, structured to UK planning policy, and it should be reviewed before submission.

This is general guidance, not legal advice; check the position with your local planning authority or a qualified professional before relying on it. To see the document pack behind a scheme with off-site works, browse the PlanScope report types by category.

PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.