Securing something by condition or by planning obligation

Where a requirement can lawfully be secured by a planning condition, it should be. National policy is explicit that obligations should only be used where the impact cannot be addressed by a condition, and the planning condition vs section 106 obligation choice usually turns on three practical questions: does the requirement involve paying money, does it bind land outside the application site, and does it need to run with the land against future owners.

Money always goes in an obligation. Land outside the applicant's control can often be handled by a negatively worded condition. Everything else is a judgement, and the tests each mechanism has to pass are different.

The six tests for a condition

National guidance requires every condition to be necessary, relevant to planning, relevant to the development permitted, enforceable, precise, and reasonable in all other respects. All six, not most of them.

Necessary means the permission would have to be refused without it. Officers attach conditions that are merely useful, and those conditions fall away on a section 73 application or an appeal.

Relevant to the development permitted is the test that stops a condition requiring works on land unconnected with the scheme.

Enforceable means the authority could realistically detect and remedy a breach. A condition requiring a use to be carried out in a particular manner, with no measurable standard, fails here.

Precise means the applicant can tell from the wording what has to be done. Conditions requiring something to the satisfaction of the local planning authority are imprecise and are regularly struck out.

Conditions that must be discharged before work starts carry an extra statutory step in England. The authority needs the applicant's written agreement to the terms of such a condition before imposing it, a rule introduced to stop whole schedules of conditions blocking a start on site.

The three tests for an obligation

Regulation 122(2) of the Community Infrastructure Levy Regulations 2010 makes a planning obligation a reason for granting permission only 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 the development.

These are statutory rather than policy tests, so failing one is not a matter of weight. The obligation simply cannot be taken into account.

The pooling restriction that once limited authorities to five obligations towards a single infrastructure project was removed in 2019, which changed the way contributions towards schools, open space and highways are packaged.

Why payments cannot be conditioned

A condition cannot require the payment of money to the authority. The courts have held that to do so is beyond the power conferred by the planning Acts, because a condition regulates the use and development of land rather than creating a financial liability.

So affordable housing contributions, education and open space contributions, monitoring fees and highway commuted sums all sit in a section 106 agreement or a unilateral undertaking. The same is true of anything requiring the applicant to transfer land or to grant rights.

On-site affordable housing is the borderline case. The units themselves could in principle be secured by condition, and occasionally are, but the occupancy controls, nomination rights and mortgagee protections that registered providers require can only be written into an agreement. The evidence behind the level of provision belongs in an Affordable Housing Statement, with any reduction supported by a Viability Assessment.

Grampian conditions and land outside control

A negatively worded condition preventing development, or occupation, until specified works are carried out is lawful even where those works are on land the applicant does not control. The approach takes its name from a House of Lords case concerning highway works in Aberdeen.

National guidance sets the limit. Such a condition should not be imposed where there are no prospects at all of the action being performed within the time limit of the permission. The bar is low, and an applicant resisting a Grampian condition on the basis that the third party might refuse will usually lose the argument.

That makes the negative condition the tool of choice for off-site highway works, drainage connections and utility diversions. It shifts the delivery risk to the applicant without requiring an agreement with the authority.

Where the third party is the highway authority itself, the works are usually delivered through a highways agreement rather than a planning obligation, with the condition preventing occupation until they are complete.

Enforcement compared

A breach of condition notice under the 1990 Act cannot be appealed, only challenged in the magistrates court on narrow grounds, and it is a quick remedy. An enforcement notice is slower and carries a full appeal, but reaches further.

An obligation is enforced as a contract and as a charge on the land. The authority can seek an injunction, and where the obligation requires works, it can enter the land, carry them out and recover the cost. That is stronger than condition enforcement, which is one reason authorities push for agreements where the requirement really matters to them.

Obligations also persist independently of the permission. Where a permission is superseded by a fresh application, the earlier agreement may still bind the land unless it is varied, and that surprises buyers who have read only the newer decision notice.

Drafting the same requirement both ways

Illustrative example, for method only. A scheme requires a new footway link along the site frontage before first occupation, and a contribution towards bus stop upgrades on the far side of the road.

The footway is within the applicant's control and the adopted highway. It is capable of being conditioned: no dwelling shall be occupied until the footway shown on drawing reference X has been constructed to the specification approved in writing by the local planning authority. Necessary, precise, enforceable, related to the development.

The bus stop contribution is money. It cannot be conditioned, so it goes into a unilateral undertaking with the sum indexed from a stated base date, a trigger tied to occupation, a repayment clause if unspent after a defined period, and a short justification against each limb of regulation 122.

Splitting the two is faster and costs less than putting both into an agreement, because the undertaking can be shorter and needs no negotiation with the authority's legal team over the footway wording.

Where the obligation is the product of a viability case, the negotiation sits alongside the plan-making position discussed in viability at plan making or at application stage, and where a scheme is coming forward in outline, the split between conditions and obligations changes again, as set out in outline or full permission for a small site.

PlanScope can draft the supporting statements that sit behind both mechanisms and flag where a figure has to come from your own evidence rather than from a template.

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.