For some time the question of whether, by condition, there can be imposed on a planning permission a requirement for a future s.106 agreement has been controversial. The Secretary of State has, over recent years, been unimpressed with legal arguments supporting the use of negatively worded "Grampian" conditions to impose such a requirement. This has in some contexts caused real practical and delivery issues - for example where not all of the land included in an application site is under the control of the applicant, and a form of Grampian condition has been suggested as a way of restricting development of the "other" land until a s.106 is delivered.
Followers of this debate will be interested in the recent appeal decision into Bellway's application for a substantial housing development at Whitehouse Farm, Newcastle upon Tyne. I am grateful to CLG for sending me some of the background material - allowing me to now pen this post.
A point arose in the appeal as to how to secure a scheme for offsetting the scheme's impacts on biodiversity. The most likely option was for provision to be made on land outside the application site and under the ownership of other parties. The matter at issue was whether a condition could be framed so that the the scheme approved under it brought forward "arrangements to secure delivery of the offsetting measures" - when the most likely way of securing those measures was via a future s.106 agreement involving third party landowners. In other words, could a Grampian condition in effect "require" a future s.106 agreement?
Well the answer seems to be "yes" - the Secretary of State has granted permission subject to such a condition, after considering legal submissions. And the form of s.106 was not referred to or attached to the decision notice - although it is clear from the condition what will be needed.