Conservation covenants: a welcome legal tool in the battle to save our environment

A conservation covenant is essentially a voluntary but legally binding agreement between a landowner and a designated ‘responsible body’, such as a conservation charity, public body or for-profit body, to conserve the natural or heritage features of the land. So “conservation" in this context not only relates to the natural environment or natural resources of land, but also to places of archaeological, architectural, artistic, cultural or historic interest. They will be legally binding not only on the landowner who agrees to them, but also on subsequent owners of the land.  

Conservation covenants are seen as part of the Government’s 25 Year Environmental Plan to achieve certain goals in relation to nature and biodiversity in England. They follow a detailed review of conservation covenants completed by the Law Commission in 2014.

Why are they important?

Prior to the implementation of the EA 2021, conservation obligations could only be entered into as personal agreements between the parties to a contract.  These contracts could not bind future owners.  This is due to technical legal rules that apply to the enforcement of restrictive covenants.  Generally speaking, these rules prevent positive obligations (obligations which require the landowner to actively do something on their land) continuing to bind the land when it subsequently changes hands. They also require neighbouring land to benefit from the restrictive covenant, such benefits usually being expressed in terms of the amenity of that land; this requirement will not usually be fulfilled where a covenant is to benefit an organisation or body.

These rules mean that legal workarounds have been needed to ensure land continues to be used for conservation purposes when it changes hands. Examples include sale and leasebacks or chains of personal covenants.  These can often be complex, costly and far from ideal.

Whilst certain statutory exceptions already exist in a conservation context, these are more limited than those now afforded by the EA 2021. Examples include:

1. Section 8 of the National Trust Act 1937, which allows the Trust to agree restrictive obligations, which are consistent with its general purposes, by way of voluntary agreement with a landowner.  It does not however provide for positive conservation acts;
2. Section 5 of the Forestry Act 1967, which allows land to be devoted to forestry by means of a voluntary agreement with the Forestry Commission (although this legislation is primarily focused on forestry management and the supply of timber rather than conservation);
3. In a planning context, section 106 of the Town and Country Planning Act 1990 allows a planning authority to impose conservation type obligations in the grant of planning permission. In particular, this may involve the developer creating and maintaining an offset site in the context of biodiversity offsetting.  These will bind future owners of the offset site and can be enforced by the planning authority; 
4. More recently, section 51 of the High Speed Rail (London – West Midlands) Act 2017 allows HS2 to impose conservation type obligations on land which bind future landowners. These are imposed where land is compulsorily acquired by HS2 to carry out environmental works (such as the planting of trees and establishment of new habitats, often to mitigate the environmental impacts of the railway) but then handed back to the landowner.

The benefits of the Environment Act 2021

Sections 120–142 of the EA 2021 now broaden the position so that parties, desirous of ensuring land is held for conservation aims, potentially forever, can do so through imposing both positive and negative covenants under this legislation. 

Conservation covenants are predominantly voluntary agreements entered into by the parties, so will be of interest to philanthropic landowners and bodies with conservation purposes or functions. They are an alternative to the legal workarounds mentioned above and, more generally, to landowners having to divest themselves of, or bodies having to take on, land ownership to ensure that conservation aims can be achieved.

Conservation covenants will also be of interest to developers and planning authorities as a potential alternative to planning obligations, especially given the biodiversity net gain requirements in the EA 2021, which make it mandatory for developers, subject to some limited exemptions, to achieve at least a 10% net gain in value for biodiversity. The provision for conservation covenants will serve as a mechanism for this to be achieved.  They can be indefinite in duration and more effectively enforced given the range of remedies available (section 128 of the EA 2021 goes beyond an injunction and includes normal contractual damages and exemplary damages). 

The introduction of conservation covenants through the EA 2021 is therefore a welcome legal tool. They should help bodies to achieve their conservation aims and, in a planning context, they should make it easier to secure biodiversity net gain requirements and mean development happens in a way that ensures the future safeguarding of the environment.