This article follows on from a previous legal update about biodiversity net gain in connection with the development of land.
The length of a conservation covenant can be limited by agreement but they will be capable of lasting indefinitely, if the landowner is a freeholder, or for the remaining term of the lease if entered into by a tenant. For the project to be accepted for the purposes of registered off-site biodiversity gain in connection with a development, however, the covenant will need to last for at least 30 years. Thus, though leaseholders with leases over 7 years will be able to enter into conservation covenants, they will have to have at least 30 years left to run if their project is to have formal value as biodiversity gain to off-set loss of biodiversity from a development.
The covenants will be entered into in writing between the landowner and a "responsible body". Those bodies will be designated by the Secretary of State and can include the Secretary of State, Local Authorities and other bodies such as conservation charities, provided that they are considered suitable and have conservation objectives as some of their main objectives. The Secretary of State will be able to revoke the approved status of a responsible body, and if that happens, the Secretary of State will become the custodian of the body’s obligations and can then either elect to be responsible for them or appoint another responsible body to take them on.
A conservation covenant can require the landowner to take action or to restrain from certain action and can allow or require the responsible body to take action to achieve the conservation aim. The parties must intend the agreement to be for the public good.
The conservation purpose may be ecological (and will be if the covenant is for biodiversity net gain purposes) but can also be, or alternatively be, for an archaeological, architectural, artistic cultural or historic purpose and can include preserving the setting of land.
The conservation covenant will be registrable as a local land charge and will be in the form of a contract between the parties, who will owe the duties under the agreement to each other. The remedies for breach will be similar to those in contract, including specific performance, injunction, damages calculated on a contractual basis and an order for payment of an amount due under the agreement. Exemplary damages may be awarded and in determining the remedy, the decision maker will have regard to the public interest in the performance of the obligation. A circumstance beyond the control of the parties or an emergency will provide the basis of a defence in relation to a failure to perform and, in a case where the relevant land is designated for a public purpose after the agreement is entered into, it will be a defence that to comply would have breached the requirements of that designation.
Landowners (including tenants) will be released when they part with their interest in the land but the agreement will bind successors in title. The parties may release the land and each other from the obligations by agreement, or they can modify the requirements, as long as the agreement continues to fulfil the requirements of a conservation covenant. The responsible body will be able to appoint another willing responsible body to take over its obligations.
These covenants will have a valuable role to play and will be similar to, but not the same as, s106 agreements in their drafting and effect. It seems, on the face of it, that they will be more flexible to the extent that the land bound need not be in the area of a particular local authority dealing with a planning application. We will watch with interest how the legislation develops.
The content of this article is for general information only. For further information, please contact Deborah Sharples or a member of Birketts' Planning and Environmental Law Team. Law covered as at November 2019.