Stephen Firmin and Fiona Gibson talk about conservation covenants and how they can be used to support the delivery of Biodiversity Net Gain.
Conservation covenants came into being under the Environment Act 2021 as part of the government’s 25 year plan to improve the environment. That plan sets out how it will protect and improve wildlife and habitats. Conservation covenants fall within the new environmental land management system (ELMS) and are also used to support the delivery of Biodiversity Net Gain (BNG) in relation to new developments.
What is a “conservation covenant”?
It is a private voluntary agreement between a land owner and a “responsible body” to do (a positive obligation), or not do (a restrictive obligation), something on the land for the purpose of conservation for the public good. There must be a conservation purpose and a public good.
Conservation covenants run with the land, which means that they bind future land owners as well as the initial owner who signed up to the agreement. Such covenants will be registered as local land charges by the responsible body.
Who is a “responsible body”?
Under the Environment Act 2021, the Secretary of State is named as the responsible body with whom land owners can enter a conservation covenant. The Secretary of State is likely to exercise its power under the Act to designate other bodies which can apply to become a “responsible body”: these are likely to include local planning authorities, environmental charities and public bodies e.g. Natural England, the Environment Agency, the Woodland Trust and any other body where some of their main purposes or activities relate to conservation. In practice, a land owner will be able to choose which (designated) responsible body it wants to work with, and ultimately be obliged to, under the conservation covenant: the responsible body will be able to take enforcement action against the land owner if it fails to comply with its obligations.
Where a conservation charity becomes a responsible body, it will take on a quasi-regulatory role regarding the enforcement of covenants and it will need to comply with the various reporting requirements set out in the Environment Act 2021.
What is a “conservation purpose”?
The covenant must conserve, protect, restore or enhance
- the natural environment, which in relation to land includes its animals, plants and living organisms, their habitats and geological features or the land’s natural resources (e.g. water).
- places of archaeological, architectural, artistic, cultural or historic interest or
- the setting of land with a natural environment or natural resources or which is a place of archaeological, architectural, artistic, cultural or historic interest.
Delivering BNG on land falls within the definition of a conservation purpose.
How is “public good” defined?
The Law Commission recommended that it should be interpreted broadly and a definition is awaited from DEFRA. Their guidance simply states that the covenant “must benefit the public in some way. For example, you could conserve land as a place of archaeological, architectural, artistic, cultural or historic interest that the public can enjoy”.
How can conservation covenants be used within the BNG regime?
- Where the developer wishes to rely on onsite biodiversity gain to comply with the 10% BNG requirement as a planning obligation, the local authority may decide that those gains need to be managed or maintained for 30 + years and a conservation covenant agreement can be used to ensure the land owner fulfils its management obligations in respect of the land.
- Where a developer is looking to rely on off-site biodiversity gains, a conservation covenant is a useful binding agreement to ensure the developer meets its planning obligations. As it is the landowner (and any tenant on the land) who will be bound by the covenant, all parties need to be aware of their obligations which stem from the planning permission.
Conservation covenants alongside section 106 planning obligations are the statutory mechanisms to ensure delivery of BNG. Like section 106 obligations, conservation covenants have been designed with flexibility to enable a developer or a land owner to deliver the required BNG or to create a suitable habitat for e.g. carbon sequestration or ecological enhancements to nearby land as a form of mitigation for a proposed housing development to make it acceptable to a local authority. They are intended to be used as a tool to deliver lasting conservation outcomes and BNG.