Grampian condition or section 106 obligation: choosing

If the thing you need secured is money, it has to be an obligation. If it is a physical event that must happen before development proceeds, a negatively worded condition will usually do it faster and for nothing. That is the short answer to the grampian condition or section 106 question, and it resolves most cases at pre-application stage. The harder cases are off-site works on land the applicant does not control, where both instruments are arguable and the choice decides who carries the risk if the works never happen.

What a Grampian condition can secure

A Grampian condition is a condition worded negatively so that development, or some stage of it, cannot proceed until a specified event has occurred. No occupation until the access junction has been constructed. No development above ground until the foul connection has been laid. The device takes its name from a Scottish case in the mid-1980s and it has been ordinary practice since.

The attraction is procedural. A condition is imposed by the decision notice, costs the applicant nothing beyond drafting attention, and takes effect the moment permission is granted. No deed, no engrossment, no waiting for a third party's solicitor to return a signed counterpart.

The limit is the six tests in the Planning Practice Guidance. A condition must be necessary, relevant to planning, relevant to the development permitted, enforceable, precise and reasonable in all other respects. Appeal practice has settled that a Grampian condition is not unreasonable simply because the applicant cannot guarantee the event will happen. It becomes unreasonable where there is no prospect at all of the action being performed within the life of the permission.

What only an obligation can deliver

A planning obligation under section 106 of the Town and Country Planning Act 1990 can do four things: restrict the development or use of land, require specified operations or activities, require the land to be used in a specified way, and require a sum or sums to be paid to the authority.

That last one is the dividing line. A condition cannot require the payment of money. Any contribution towards school places, open space, highway improvements outside the red line or affordable housing commuted sums has to sit in a deed. So does a commitment to transfer land, to grant a lease at a nominal rent, or to maintain something in perpetuity, because a condition binds the land but cannot compel a positive obligation of that kind with the same bite.

Obligations also run with the land as local land charges and bind successors in title. Where the concern is what happens after the site is sold on, that matters more than the drafting.

The tests each has to pass

The two instruments are policed differently, and mixing the tests up is a common drafting error.

Regulation 122(2) is statutory, not advisory. An obligation may only be taken into account as a reason for granting permission where it is necessary to make the development acceptable in planning terms, directly related to the development, and fairly and reasonably related in scale and kind to it. An obligation that fails those tests cannot lawfully be a reason for granting permission, whatever the parties agreed.

Land outside the applicant's control

This is where the comparison earns its keep. Suppose a scheme of 40 homes needs a right turn lane on a county road, and the land needed sits within the adopted highway.

An obligation requires every person with an interest in that land to be a party to the deed, which in practice means the highway authority, any freeholder and any mortgagee. Assembling those signatures is what turns a four-week negotiation into a four-month one.

A Grampian condition sidesteps the signature problem. It says no occupation until the works are complete, and leaves it to the developer to obtain a section 278 agreement with the highway authority. The authority gets its protection without needing anyone to sign anything at the planning stage.

The trade-off is certainty of delivery. If the highway authority will not enter into a section 278 agreement, the developer is stuck with an unimplementable permission and the council has no contribution. And where the works serve several sites rather than one, an obligation with a contribution is usually the honest answer, because the condition cannot apportion.

Cost, time and the drafting that goes wrong

Section 106 costs are the ones applicants underestimate. The authority's legal fees are normally paid by the applicant, monitoring fees are now commonplace, and the deed cannot complete until the title has been checked, which means a land registry search and often an indemnity where there is an unregistered strip.

Condition drafting fails in quieter ways. Watch for four faults: a trigger tied to the start of works where occupation would do, an event described so loosely that nobody can say when it has occurred, a requirement to obtain a consent that the authority itself controls, and a condition requiring a scheme to be "agreed" without saying what happens if agreement is refused.

Fix wording before the decision is issued. Once it is out, the route is a section 73 application with its own fee and its own eight weeks, and a section 73 permission is a new permission with its own conditions to check.

Choosing between them on off-site highway works

Work through it in this order.

1. Is money involved? If yes, you need a deed, whatever else you also do.
2. Can the outcome be expressed as an event with a date-free trigger? If not, a condition will fail the precision test.
3. Does the applicant need any third party to sign? If yes, price the delay.
4. Is there a real prospect of the event happening within the permission's life? If not, the condition is unreasonable and the application should probably be refused or redesigned.
5. Does anything need to survive a sale of the site? If yes, favour the obligation.

Hybrid solutions are normal and are not a failure of nerve. A deed securing the affordable housing and the education contribution, sitting alongside Grampian conditions on the access works and the drainage connection, is the commonest shape on a minor to medium residential scheme. Where affordable housing is in issue, the negotiation usually turns on the viability evidence and the affordable housing case, which is a separate exercise from the drafting.

Either way the application still has to carry the evidence. An Affordable Housing Statement sets out the tenure split the deed will record, and a Transport Assessment is what persuades the highway authority that the junction works are needed at all. Enter your postcode on PlanScope to see which of those the site is likely to need.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.