Conservation Covenants
What is a conservation covenant?
You should take independent legal advice on the formalities for your conservation covenant agreement.
A conservation covenant is an agreement between a landowner and a body like a charity or public body (known as the responsible body) to do or not do something on their land for a conservation purpose.
These agreements are long lasting and can continue after the landowner has parted with the land, ensuring that its conservation value is protected for the public benefit.
Conservation covenants can:
be formed by the agreement of two parties: a landowner (a person with a freehold estate or leasehold estate of more than seven years), and a responsible body drawn from a limited class of organisations;
be able to contain both restrictive and positive obligations;
be capable of binding the landowner’s successors in title (that is, all subsequent owners) after he or she has disposed of the land; and
be made for the public good.
What does a conservation covenant look like?
A conservation covenant agreement must be executed as a deed by the landowner and responsible body. To be a deed, the agreement must:
be in writing
make it clear and evident from its wording that it is intended by the landowner and responsible body to be a deed
be validly executed as a deed – the formalities required for valid execution vary depending on who the parties to the agreement are
You should take independent legal advice on the execution formalities required for your conservation covenant agreement.
Can Conservation Covenants be created for Common Land?
It is possible to create a conservation covenant in relation to common land. The conservation covenant will be subject to, and will not override, existing rights such as registered common rights, or restrictions affecting the land, . You should engage with all those with an interest in the common land at an early stage, to make sure all relevant rights and restrictions are considered before an agreement is entered into.
What can a conservation covenant agreement be used for?
You can use a conservation covenant agreement for different reasons, including to:
agree how land is managed to conserve habitat for rare species
improve a habitat that’s a priority for conservation
secure income and funding for conservation activities, for example an environmental charity could pay a landowner to manage land in a way that achieves long-term conservation results
make sure that future landowners can manage and conserve land, buildings or monuments
provide payments for ecosystem services and for biodiversity net gain
How long is a conservation covenant?
The landowner and responsible body decide how long the conservation covenant will last for.
On freehold land, if the duration of the conservation covenant is not expressly set out in the agreement, it will last indefinitely. If you’re a leaseholder, the conservation covenant will last until the lease ends.
You may need to set a duration if there are other requirements you need to comply with. For example, a covenant used for biodiversity net gain (BNG) must run for at least 30 years.
Once a conservation covenant is created and registered with the appropriate local land charges register, it’ll be legally binding for:
future landowners
a responsible body that takes on the conservation covenant from another responsible body
If the future landowner is a leaseholder with a lease of 7 years or less, they’ll only be bound by the restrictive obligations (and any related ancillary obligations). The positive obligations, and any related ancillary obligations, will be binding for the landlord.
If the responsible body becomes the owner of the land, a conservation covenant will continue to bind the responsible body.
What if the land is protected or has a statutory designation?
Here you can:
check if the land is subject to any statutory nature designations
check if the land is subject to any statutory heritage designations
You will need to make sure that your proposed conservation covenant will work with the designation.
Statutory designations include:
sites of special scientific interest (SSSIs)
local nature reserves
listed buildings
scheduled monuments
What if the land in scheme has pre-existing rights and restrictions?
Conservation covenant agreements do not override pre-existing:
statutory rights
obligations
private property rights
planning restrictions
statutory designations
Pre-existing rights binding the land are still enforceable, even if you enter into a conservation covenant agreement later.
Pre-existing rights include, rights:
to use common land
of statutory undertakers to inspect and maintain infrastructure, such as Network Rail or water companies
held by someone else with a legal interest in the land, for example an easement or a restrictive covenant
that provide public rights of way
If you’re a land manager, you should check:
your legal deeds
land registry title documents
government-funded environmental scheme rules
You should take legal advice if you’re not sure whether there are any pre-existing matters affecting your property.
Tenants should also check the terms of their tenancies.
If you’re a landowner, you risk enforcement action if you cannot comply with both the conservation covenant and the pre-existing rights or restrictions.
You need to design the conservation covenant to work with any existing rights or restrictions on the land.
Common land
It is possible to create a conservation covenant in relation to common land. The conservation covenant will be subject to, and will not override, existing rights or restrictions affecting the land, such as registered common rights.
You should engage with all those with an interest in the common land at an early stage, to make sure all relevant rights and restrictions are considered before an agreement is entered into.
For further information on statutory designations, contact:
Natural England for the natural environment
Historic England for heritage features
the local planning authority for listed buildings
If you cannot complete actions in a conservation covenant because of a future statutory designation, that designation will provide a defence for breach of the conservation covenant.
Who can create a conservation covenant agreement?
A conservation covenant agreement must be between:
a landowner who holds freehold title of the land or a leaseholder – if you’re a leaseholder, you must have a lease of more than 7 years with time remaining on it
a responsible body
A responsible body can be:
a local authority
a public body or charity, where at least some of its main purposes or functions relate to conservation
a private sector organisation, where at least some of its main activities relate to conservation
As a landowner, do I “lose” my land?
In short, no, with conservation covenants a landowner can continue to retain ownership of the land whilst selling the benefit of the conservation covenant, keeping the land within the ownership of the family for generations to come. So, a landowner could enter into a conversation covenant with a charity which has been designated as a ‘responsible body’ to provide a habitat for wildlife supported by that charity in exchange for payment without the need to sell the land to that charity. This would likely benefit the charity too, who may not have the means to buy the land.
https://www.gov.uk/guidance/getting-and-using-a-conservation-covenant-agreement
conservation.covenants@defra.gov.uk
The Environment Act 2021 (EA 2021) received Royal Assent on the 9th November 2021. The purpose of this new Act is to provide governance to attain environmental targets in the priority areas of air quality, water, biodiversity, resource efficiency and waste reduction. The EA 2021 also introduces a new statutory measure of ‘conservation covenants’, as part of the Government’s 25-year plan to improve the environment.
Further Reading
We have provided a few links and articles regarding conservation covenants below. Of course, there are other sources of information out there as well.