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Conservation Covenants, Biodiversity Net Gain and Whether These Fancy Terms Mean Anything for You

Later this year we’re expecting the Environment Bill 2019-21 to become law. The new bill is set to implement targets, plans and policies for improving and protecting the environment.

As a team of solicitors who deal with land and law, there are some parts of the Environment Bill that are particularly interesting to us. An aspect that has really caught our attention is the formalisation of conservation covenants.

What are conservation covenants?

If you’ve ever been through the conveyancing process to buy a house, you’re likely to have come across the term ‘covenant’ before. In general terms, a covenant is a legal agreement about something that must or must not be done. When this applies to land or property, it often means there are restrictions on whether you can do things like build an extension, retain a right of way or keep chickens in your garden.

A conservation covenant is a similar kind of legal mechanism. It can be put in place in order to protect the natural benefit of the land for the public good. It can be a ‘positive’ covenant (e.g. the landowner and any future landowners must conserve and maintain certain biodiverse features) or a ‘negative’ covenant (e.g. the landowner must not bulldoze the lot and build a shopping centre).

Like other type of property or land covenants, a conservation covenant will remain in place indefinitely. This is called ‘running with the property’ and means that even if the land changes hands, the restrictions (whether positive or negative) will remain in place for the new owner.

The only exception to this is if the person who originally puts the covenant in place is a leaseholder rather than the freeholder. In these cases, the leasehold owner can only enforce a covenant for the duration remaining on their lease (and they must have at least seven years remaining in order to enter into a conservation covenant at all).

How does a conservation covenant work?

Once the Environment Bill 2019-21 becomes law, conservation covenants will become legally binding. This means that once they’re agreed they can’t be ignored/avoided/removed and the rules of the covenant must be abided by indefinitely (or for whatever length of time has been specified). Conservation covenants will be voluntary, which means landowners can choose freely whether or not to enter into them.

In order to enter into a conservation covenant, a landowner will need to partner with a ‘responsible body’. There’s a fair amount of flexibility on which types of organisation can act as responsible bodies. This includes charities and governmental organisations (such as local councils) as well as private companies. Any organisation or business who are hoping to act as a responsible body will need to apply to the Secretary of State for the proper permission to do so.

Depending on the exact terms of the covenant, the responsible body will not have the right to free access over the land, but they will be tied into the agreement. This may be either to do something on the land themselves, or to support the landowner to do/not do something on the land themselves.

A conservation covenant should be drawn up by an experienced solicitor and signed by both parties. 

When might a conservation covenant be put in place? 

A conservation covenant might be put in place for a number of reasons. Generally, it’ll be because a landowner wants to ensure the future biodiversity and environmental benefit of their land is safe. This might be because they are passionate about protecting the natural spaces around them… or it might be because they are legally obliged to do so.

This is where the other fancy term comes in: biodiversity net gain. Essentially, biodiversity net gain is the concept that developers should leave a piece of land better off in terms of biodiversity once they’ve finished with it than it was when they started.

This is another concept that’s being formalised in law with the Environment Bill 2019-21. In many cases, developers will be required by law and the terms of their planning permission to do one of two things:

  1. To ensure adequate protected biodiversity within their development site
  2. To enter into an ‘offset credit’ agreement with a piece of protected land in another location

In cases where it is possible to introduce protected biodiversity within a development site – such as a freshwater pond or bee-friendly wildflower area – the developers would then enter into a conservation covenant to ensure any future owners of the development/land would need to retain those biodiverse areas.

Equally, in cases where it isn’t appropriate to introduce biodiverse features within a development, developers will be able to offset this by purchasing ‘credits’ from other landowners. In these agreements, other landowners would offer up an area of their own land to become protected by a conservation covenant in return for payment from the developers.

Conservation covenants can also be put in place in order to protect natural areas of historical or cultural significance for the benefit of the public.

Where to go from here

Whether you’re a landowner, a developer or an organisation, the soon-to-be-ratified concepts of biodiversity net gain and conservation covenants could represent some interesting opportunities for you.

If you want to get a better understanding of the legal implications of conservation covenants and whether entering into one is the right choice for you, please don’t hesitate to get in touch. We’re always on hand to chat covenants, whatever your motivations for doing so.

At Newport Land and Law we don’t believe in just being ordinary lawyers, thank you very much. If you’re looking for a legal team who will drop the legal hoity-toity and talk to you like an actual human being, look no further. We’re a team of experienced, diligent solicitors who have come together to offer the kind of client-centred conveyancing and personal law service we think you deserve. (We might even throw a few jokes in, though we can’t promise they’ll be any good).

 

 

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