Conservation Covenants – How and when can they be used?

The Environment Act 2021 came into force on 9 November 2021.  It is wide ranging and parts of the Act are controversial.  This article focusses on Part 7 of the Act, Conservation Covenants, of interest to landowners of woodlands, heritage properties, biodiversity sites and, developers.

The Act provides for landowners to enter into a voluntary, private agreement as a deed with a “responsible body” that meets specified conditions of a “qualifying kind”, has a “conservation purpose” and is intended by the parties to be for the pubic good, in other words, a Conservation Covenant. 

Being designated as a responsible body requires Secretary of State approval.  In most cases it is likely that the local authority will be the responsible body but other bodies with conservation purposes may also secure approval. 

A condition is of a qualifying kind if it either: requires the landowner to do or not do something on specified land or to allow the responsible body to do something on it; or it requires the responsible body to do something on specified land.  Examples might be committing to leave an area as wild meadow, to allow access for conservation related research, to maintain historic features.

The conditions can each be specified to last for a particular period of time or for a default period.  In the absence of a deadline the conditions will run for perpetuity on freehold land and for the remainder of a leasehold term on leasehold land (lessees with more than seven years remaining term can enter into Conservation Covenants).

Conservation purpose is quite widely defined, particularly with the inclusion of setting.  A conservation purpose extends to: the natural environment of the land, such as plants and animals and their habitats; the land’s natural resources, such as water on the land; the land as a place of archaeological, architectural, artistic, cultural or historic interest; and the setting of the land.  This means that a particular backdrop to an item or area of interest could be required to be maintained/not removed.

No specific wording to use is given in the Act, but it must be clear that the agreement intends to create a Conservation Covenant in order that it does. Agreements not intended to create Conservation Covenants should not be caught.

If the various requirements are met a Conservation Covenant will be created, which will have statutory effect.  Any ancillary provisions in the Covenant, such as allowing public access, will also have statutory effect.  The Covenant is a local land charge and the responsible body should apply to have it registered as such.  In fact, successors in title will only be bound by the Conservation Covenant if it has been registered as a charge.

Regulations are required before the provisions come into force.  Once they do, they are potentially of great assistance.  Current conservation agreements cannot bind successors and planning rules restrict what planning agreements and conditions can control.  Conservation Covenants will be able to secure future use of land beyond the realm of mitigating impacts from development, giving local planning authorities certainty that an area of land will be used for biodiversity net gain, or compensation etc.  They will also allow those lucky enough to worry about the future of their large estate in the hands of their offspring to exert some control from beyond the grave!

Posted on 01/12/2022 by Ortolan

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