Conservation covenant or section 106 for habitat delivery
A section 106 binds habitat land to the council; a conservation covenant binds it to a designated responsible body. How the parties, duration, registration and negotiation time differ.
When off-site habitat has to be secured for 30 years, the choice is a conservation covenant vs section 106 agreement, and the practical difference is who the other party is. A planning obligation under section 106 of the Town and Country Planning Act 1990 binds land to the local planning authority. A conservation covenant under Part 7 of the Environment Act 2021 binds land to a designated responsible body, which may be a local authority, a public body or a charity with the designation.
That single distinction drives most of the decision. If the habitat land sits in a different council's area from the development, a section 106 gets awkward and a covenant does not.
What each instrument secures
Both can deliver the same outcome: a defined area of land managed to a habitat management and monitoring plan for at least 30 years, registered so that it appears against the land, and enforceable against whoever owns it later.
A section 106 obligation does this as a planning obligation tied to a development. It can also do things a covenant cannot: require a financial contribution, govern the phasing of occupation against habitat delivery, and carry monitoring fees. It must satisfy the tests in regulation 122 of the Community Infrastructure Levy Regulations 2010, being necessary to make the development acceptable, directly related to it, and fairly related in scale and kind.
A conservation covenant does one thing and does it cleanly. It is an agreement between a landowner with a qualifying estate and a responsible body, in writing, stating that it is a conservation covenant agreement, for a conservation purpose. It needs no planning application behind it, which is why habitat banks use them.
The biodiversity gain condition sits above both. Mandatory biodiversity net gain applies to major development from 12 February 2024 and to small sites from 2 April 2024, and significant off-site gains must be secured for at least 30 years by either instrument. The statutory metric has to be completed by a competent person under the Environment Act 2021 regime, and a draft biodiversity net gain assessment is a starting point for that person rather than a substitute.
Who the parties are in each case
| Section 106 obligation | Conservation covenant | |
|---|---|---|
| Parties | Landowner and the local planning authority, sometimes with others | Landowner with a qualifying estate and a responsible body |
| Planning application needed | Yes, the obligation attaches to a permission | No |
| Cross-boundary land | Needs the other authority to join or a parallel agreement | Handled by the responsible body wherever the land lies |
| Who enforces | The local planning authority | The responsible body |
| Who can be a party | Statutorily defined | Responsible bodies designated by the Secretary of State |
Qualifying estate matters. A freeholder can grant a covenant, and so can a leaseholder with more than seven years left to run, which rules out short tenancies as the vehicle for a 30-year commitment.
Mortgagee consent is a live issue for both. A lender with a charge over the habitat land will want to understand a 30-year restriction before it is registered, and chasing that consent is frequently what delays completion.
Length of commitment and enforceability
A covenant granted by a freeholder runs indefinitely unless the agreement states a shorter period, which is longer than the 30 years biodiversity net gain requires. That is a point to negotiate rather than accept by default, because a landowner signing an indefinite restriction is giving away more than the scheme needs.
Section 106 obligations run for the period they specify and bind successors in title. Both instruments are local land charges, so they show up on a local search rather than only in a deed packet.
Modification and discharge differ. A section 106 can be varied by agreement, and after five years an application can be made under section 106A with an appeal route to the Secretary of State. A conservation covenant can be modified or discharged by agreement with the responsible body, or on application to the Upper Tribunal. Neither is a quick route, and both are worth understanding before a 30-year commitment is signed rather than after.
Responsible bodies and their role
A responsible body has to be designated, and the list of designated bodies is published by the government. Local authorities are eligible, as are public bodies and charities whose purposes include conservation.
What the body actually does matters more than its status. It holds the covenant, monitors compliance, and enforces if management lapses. So ask the practical questions: how often does it inspect, what does it charge for monitoring over 30 years, what happens if it ceases to exist or withdraws its designation, and does it require a management endowment up front.
Some bodies take an active role and some are closer to a registry. Neither is wrong, but the development's risk profile differs, and a council assessing the security of your off-site gain will look at the body as well as the document.
Registration and effect on the title
Obligations under a conservation covenant are local land charges, so registration is with the local authority's land charges register rather than a note in a deed box. Section 106 obligations are treated the same way.
The practical consequence is for the habitat landowner, not the developer. A restriction appearing on searches affects value and saleability, and the agreed habitat management plan becomes a liability a buyer inherits. Habitat bank operators price that in. A farmer entering an arrangement for a single scheme often has not thought about it, and a short conversation about exit, succession and tenancy arrangements saves a dispute in year eight.
Where the off-site land also carries other agreements, a land management or stewardship scheme among them, check for conflict between the obligations before signing. Both instruments survive a change of ownership and neither bends easily.
Which authorities prefer which route
Practice varies, and the honest answer is that the route often comes down to the authority's legal team rather than policy. Some councils are comfortable with covenants and treat the responsible body's involvement as a reduction in their own monitoring burden. Others want a section 106 because it is the instrument they know, it lets them attach a monitoring fee, and it keeps enforcement in their hands.
Ask at pre-application. Then ask whether the council has a template, because drafting from scratch adds weeks.
For on-site gains the question usually does not arise, since a condition plus a section 106 covering the habitat management and monitoring plan is the normal route. The instrument choice bites on off-site units, particularly where they are bought from a habitat bank in another district. Monitoring charges are a separate negotiation in either case, as our comparison of a section 106 monitoring fee and administration charge explains.
Cost and negotiation time
Neither is quick. A section 106 for off-site habitat typically needs the council's legal fees, title checks, mortgagee consent and agreement of the management plan, and the drafting runs in parallel with determination rather than after it. A covenant removes the council from the drafting but adds the responsible body's own due diligence, fees and monitoring charges over the term.
Start both earlier than feels necessary. The habitat management and monitoring plan is the document that holds everything up, because it has to be agreed by the ecologist, the landowner, the council and whoever will enforce it. Our note on what a conservation covenant is and who holds it sets out the mechanics in more detail.
Browse all 66 PlanScope report types and start a draft while the habitat security route is being agreed.
This is general guidance, not legal advice; check the position with your local planning authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.
Frequently asked questions
Can either instrument secure off-site biodiversity net gain?
Yes. Where significant off-site gains are relied on, they must be secured for at least 30 years, and both a planning obligation under section 106 and a conservation covenant under Part 7 of the Environment Act 2021 can do that. The choice usually turns on whether the habitat land lies in the same authority's area and on the council's own preference.
Who can hold a conservation covenant?
A designated responsible body. The government publishes the list, and eligible bodies include local authorities, public bodies and charities whose purposes include conservation. The landowner must have a qualifying estate, meaning a freehold or a lease with more than seven years left to run, so short tenancies cannot be the vehicle for a 30-year commitment.
How long does a conservation covenant last?
Where granted by a freeholder it runs indefinitely unless the agreement specifies a shorter period, which is longer than the 30 years biodiversity net gain requires. That default is negotiable and worth negotiating, since an indefinite restriction gives away more than the scheme needs. A leasehold covenant runs for the remainder of the lease term.
Does a covenant show up on a property search?
Yes. Obligations under a conservation covenant are local land charges, so they appear on a local authority search in the same way that section 106 obligations do. That affects value and saleability for the habitat landowner, and the management plan becomes a liability a future buyer inherits, which is worth discussing before signing.
Which route is faster to complete?
Neither reliably. A section 106 needs the council's legal fees, title checks, mortgagee consent and an agreed management plan, drafted in parallel with determination. A covenant removes the council from the drafting but adds the responsible body's due diligence and fees. In both cases the habitat management and monitoring plan is the document that causes the delay.
Sources and further reading
This article is general guidance about the planning system in England and, where stated, the rest of the UK. It is not legal or professional advice. Check your local planning authority’s validation requirements and take professional advice for your specific site.