Conservation covenants: a new legal concept

3rd February 2023

We are now familiar with the term ‘biodiversity net gain’ – the provision of compensatory habitat where it is otherwise lost during development. For various sectors to achieve certain biodiversity net gain targets, we can expect over time to see an increasing use of a relatively new legal concept, the conservation covenant.

A conservation covenant is an agreement between a landowner and a ‘responsible body’. Initially the overarching aim behind the covenant was conservation of land, buildings, or flora and fauna. By registering as a local land charge it is intended to be binding on successors. However, it is increasingly now being discussed to secure enforceable covenants over biodiversity net gain areas. It may oblige a landowner to carry out certain activities or, conversely, it may prohibit or restrict certain activities.

A responsible body might include a local authority, charity or a public/private body where some of the main activities relate to conservation and would need to be registered as such. As the title suggests, being a responsible body comes with responsibilities such as monitoring the covenant or enforcing terms. The register of responsible bodies remains to be completed.

The duration of the covenant, payments due, termination provisions or the activities which will or will not be permitted whilst it is in force are all matters for negotiation between the parties. It is highly recommended that parties take professional advice as any agreement reached will need to be in writing and by a legally binding deed which could have unexpected consequences if parties are not advised.

A conservation covenant will be binding for so long as it is in force, even if land is sold or changes hands by way of gift.

We expect to hear more from DEFRA on conservation covenants over the coming months.