Introduced by the Environment Act 2021, conservation covenants are a new legal tool aimed at delivering long-term conservation benefit. Still in their infancy, they have been available to use since September 2022.
What are conservation covenants?
A conservation covenant is a private and voluntary agreement made between a landowner and a “responsible body” to do (or not to do) something on their land for a conservation purpose, for the public good. Leaseholders with leases over seven years will also be able to enter into conservation covenants.
A “responsible body” must be approved by the Secretary of State and be on the register of approved bodies. They can include local authorities and other bodies where at least some of their main activities relate to conservation, such as conservation charities.
The conservation purpose can be ecological, archaeological, architectural, artistic, cultural or historic in kind. Public access does not need to be a feature of an agreement.
What purpose do they serve?
A key use of conservation covenants will be to support the new Biodiversity Net Gain (BNG) requirements under the Environment Act 2021. From November 2023, it will be mandatory for new developments on large sites to deliver at least 10% BNG. This will apply to small sites from next April and from 2025 it will also apply to Nationally Significant Infrastructure Projects (NSIPs). There is also a great deal of scope for conservation covenants to be used in other contexts such as habitat creation for the purposes of nutrient neutrality, for carbon sequestration or for conserving heritage assets.
How long do they last?
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 leaseholder. Indeed, unless a covenant specifies a precise period, a conservation covenant will endure in perpetuity, so many landowners will want to specify a longstop date.
For a project to be accepted for the purposes of registered off-site biodiversity gain in connection with a development, the covenant will need to last for at least 30 years. Similarly, leaseholders will need to have at least 30 years left to run on their lease if their project is to have formal value.
Who can enforce a conservation covenant?
They are private agreements and, as such, are enforceable between the parties only. Responsible bodies carry the obligation to monitor and enforce those covenants throughout the period of the covenant, a commitment that should not be undertaken lightly.
How is a conservation covenant protected?
The conservation covenant will be entered into in writing between the landowner and the responsible body, by way of a deed and is registrable as a local land charge. Landowners (including tenants) will be released when they part with their interest in the land, but the agreement will bind successors in title.
Conclusion
Conservation covenants are an emerging tool, but we believe they offer real opportunities for landowners. If you would like to discuss how you may be able to utilise conservation covenants or would like more information on the role these can play in your future estate planning, please contact Deborah Sharples on 01473 921732 or [email protected].
Key Contacts
Partner, Head of Environment and Public Access to Land
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at May 2023.