Over the past couple of years we have commented a number of times on the potential for using Grampian conditions (ie negatively worded conditions which restrict development until a particular event occurs - as opposed to a positive condition requiring performance to secure the event), as an alternative to using standard section 106 obligations. We obtained leading counsel's opinion on this - to the effect that such an approach (even where the event itself may be the delivery of a section 106 agreement) is lawful if other requirements (eg the test of precision) are observed.
I think it fair to say that the Secretary of State has been nervous about extending the use of Grampian conditions in this way, in particular when the "event" would involve the developer in paying money. Conditions which, using a Grampian formulation, require a "scheme" have real practical attractions, but again they may at least imply a financial contribution. Also, particularly with "scheme" conditions, the test of precision is not easy to satisfy without attention to detail.
In addition, this is an area where there is a fair amount of caselaw (eg the cases around the use of the words "or as otherwise agreed by the local planning authority"), so applicants and local planning authorities alike have tended to stick to the tried and tested section 106 route, with standard conditions following on.
Well perhaps that is about to change. There has been a very interesting Secretary of State decision involving land at Crawley, in which the "planning gain" package for a residential based mixed use scheme (1900 dwellings/5,000 sq m business with retail and community/education facilities) was secured by conditions - many requiring schemes to include details of future management and maintenance. Although there is likely to be a need for 106s in the future, (eg to give comfort to the local planning authority that a scheme provision for future maintenance can be delivered), these may not be needed at outline stage.