Conservation Covenants – A Simple Guide
Posted on in Planning, Environment & Licensing
What is a conservation covenant?
It is a covenant (or promise) in a voluntary agreement between a landowner and a “responsible body” to deliver lasting conservation benefits, for the public good. It is recorded in a conservation covenant agreement. These agreements must be made by deed and are registerable as a local land charge by the responsible body. There are strict formalities for making a deed that must be followed.
Who can give such covenants?
Conservation covenants can be given by freeholders or leaseholders with leases that have at least 7 years remaining.
How long does a conservation covenant last?
- For freehold land: it lasts forever unless a shorter time is agreed in the agreement.
- For leasehold land: it lasts as long as the lease.
- If it’s for biodiversity net gain, it must last at least 30 years.
What kinds of covenants qualify?
The covenants must be for a conservation purpose, intended by the parties to be for the public good, and either require the landowner to do or not do something on their land or allow the responsible body to do something on the land.
What counts as a conservation purpose?
This means conserving, protecting, restoring, or enhancing:
- Natural environment or natural resources of the land
- Land as a place of archaeological, architectural, artistic, cultural, or historic interest
- The setting around these types of land
It is noteworthy that conservation objectives are much broader than biodiversity net gain – even though this is the context in which these covenants are most commonly deployed at the moment.
What is a “responsible body”?
These are organisations approved by the Secretary of State who are “suitable” for monitoring and enforcing compliance with conservation covenants. They include local authorities, conservation charities, and other public and private bodies where at least some of their main purposes or functions relate to conservation.
DEFRA’s criteria are:
- Eligibility
- Financial security
- Operational capacity and capability
- Ongoing suitability
If the responsible body no longer exists, the Secretary of State steps in as a last resort.
What happens if such covenant is breached?
The responsible body can take legal action, such as obtaining an injunction to make someone do (or stop doing) something. Damages are also an option, in certain circumstances.
Are there any risks to becoming a responsible body?
It is easy to underestimate the long-term costs and effort involved. To be approved, organisations must show they can meet ongoing monitoring and annual reporting duties—both of which can require significant upfront planning and investment. In-house ecological and enforcement knowledge is, in our view, a prerequisite; some knowledge of legal process is a great advantage.
What are the key risks to landowners/lessees?
Conservation covenants run with the land (similar to section 106 planning obligations), so they will bind future landowners. They can be modified by agreement (again, made by deed), but if the parties do not agree, it requires an application to the Upper Tribunal, which is neither quick nor easy. Unless the conservation covenant agreement says otherwise, responsible bodies can be substituted with little control by the landowner, so the long-term agreement entered into with one party could end up in the hands of quite another.
Need help?
Tozers’ Planning & Environment team can help with:
- Writing or reviewing conservation covenants
- Advising landowners on risks and opportunities
- Applying to become a responsible body
- Understanding enforcement and reporting duties