Conservation covenants: a whole new species of proprietary covenant

Conservation covenants are binding legal agreements given by landowners or certain leaseholders to a “Responsible Body” (a local authority, or a public, private or third sector body involved in conservation) for both “the public good” and a “conservation purpose” – the idea being to conserve either the natural or the heritage features of the land being burdened.

They are private voluntary agreements, introduced into law by the Environment Act 2021 and, due to their unusual nature, their impact is expected to be wide-reaching.

There are a couple of features that make conservation covenants unusual as they do not follow the ‘usual rules’, from a legal perspective:

  1. the beneficiary of the covenant does not need to own adjoining or neighbouring land to which the benefit of the covenant must attach; and
  2. the covenants bind and therefore ‘run with’ the burdened land, whether they are positive in nature, (i.e. covenants to do something) or restrictive (i.e. covenants not to do something) – a new owner will therefore automatically be bound by them without having to enter into a direct agreement with the “Responsible Body”, and will be taking on liability for existing or past breaches. 

Under the new Biodiversity Net Gain (‘BNG’) system, which is due to be introduced from 12th February 2024, developers must effectively show that the BNG of their development will be secured for at least 30 years - i.e. that the biodiversity value attributed to the development will be maintained for 30 years. Conservation covenants are one way of achieving this, as they can be used to ensure a particular habitat is preserved, managed and protected for the requisite 30-year period. This can be done by imposing management, improvement or financial obligations, such as a positive commitment to maintain woodland or an obligation to refrain from using pesticides on native flora. 

If you are thinking of putting in place a conservation covenant, you should ensure that it works with any existing rights or restrictions relating to the land in question.  It is also important to be aware that they have the potential to extend far beyond the original contracting parties and might create expensive, significant and potentially indefinite legal obligations binding land, potentially limiting its use in the long-term and imposing obligations for its conservation. Furthermore, if you are purchasing land that is subject to conservation covenants, you will automatically be bound by them and may be taking on potentially significant liability for existing or past breaches.  

Whilst the impact of conservation covenants has the potential to be overwhelmingly positive on the world around us, there are several points of caution and deciding whether to enter into a conservation covenant or take on land that is subject to them needs to be considered carefully with appropriate legal and ecological advice.

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