Conservation covenants and how habitat is secured
A conservation covenant or a section 106 obligation are the only two ways to secure a biodiversity gain site. Here is how covenants work and when to use one.
A conservation covenant under the Environment Act 2021 is a private agreement, executed as a deed, between a landowner and a designated responsible body, containing an obligation for a conservation purpose that is intended to be for the public good. Its practical importance in planning is narrow and large at the same time. It is one of only two mechanisms that can secure a biodiversity gain site for the required thirty years, the other being a planning obligation under section 106 of the Town and Country Planning Act 1990. Which one you use changes who enforces it, who has to be a party, and how hard it is to unpick later.
The position described here is as at October 2026, and the conservation covenant provisions in Part 7 of the 2021 Act are in force.
What a conservation covenant is
Three things have to be true for an agreement to be a conservation covenant. It must be between a landowner with a qualifying estate and a responsible body. It must contain an obligation that is for a conservation purpose, which the Act defines to include conserving the natural environment or natural resources, places of archaeological, architectural, artistic, cultural or historic interest, and the setting of such places. And the parties must intend the obligation to be for the public good.
Form matters. The agreement must be in writing, executed as a deed, and state that the parties intend to create a conservation covenant. Get any of that wrong and you have an ordinary contract that does not run with the land, which defeats the purpose.
Obligations can be positive or restrictive. A covenant can require the landowner to manage a meadow in a particular way, to allow monitoring access, and to refrain from ploughing, draining or building. That mix of positive management and restriction is exactly what a thirty year habitat commitment needs, and it is something a traditional restrictive covenant cannot deliver.
Responsible bodies and their designation
Only a responsible body can hold a conservation covenant. The category includes the Secretary of State, local authorities, and bodies designated by the Secretary of State on application, which in practice means conservation charities, some public bodies and a growing number of specialist organisations. The list of designated bodies is published and changes, so check it rather than assuming an organisation qualifies.
Designation criteria go to purpose and capability. A charity needs conservation among its purposes. A commercial organisation can be designated where at least some of its main purposes or functions relate to conservation. The Secretary of State can withdraw designation.
That last point is the one to think hardest about when choosing a body. A thirty year obligation held by an organisation that may not exist in twenty years is a weakness, and an authority assessing an off-site gain proposal is entitled to ask about the body's governance, funding and track record.
How a covenant binds successors in title
This is the feature that makes the mechanism work. A conservation covenant binds the landowner who entered into it and, subject to the terms, their successors in title. It is a local land charge, so it appears on a local land charges search and a purchaser's solicitor will find it.
Default duration depends on the estate. Where the landowner holds a freehold, the default is that the obligation lasts indefinitely unless the agreement says otherwise. Where the covenant is granted over a leasehold estate, it runs for the remainder of the term. For biodiversity gain purposes the agreement will normally specify at least thirty years, and specifying a period rather than relying on the default is the safer drafting.
Modification and discharge are possible by agreement between the parties, and otherwise by application to the Upper Tribunal, which can modify or discharge an obligation on stated grounds. That is a meaningfully higher hurdle than the route for a planning obligation, which can be modified or discharged by agreement or, after five years, by application to the authority with an appeal if refused.
Choosing between a covenant and a planning obligation
| Feature | Conservation covenant | Section 106 obligation |
|---|---|---|
| Parties | Landowner and a designated responsible body | Landowner and the local planning authority, usually with the developer |
| Geography | Any location, whatever authority area | Normally used where the authority has an interest |
| Enforcement | By the responsible body | By the local planning authority |
| Release | By agreement, or by the Upper Tribunal | By agreement, or application after five years with a right of appeal |
| Registration | Local land charge | Local land charge |
| Suitability | Off-site gain sites, habitat banks, land in another authority area | On-site provision, and off-site land within the same authority |
The practical rule most consultants work to is simple. On-site habitat and off-site land within the same authority tends to go into the section 106 agreement that is being negotiated anyway. Off-site land in a different authority area, or a habitat bank serving many developments, is far better suited to a covenant, because the alternative is persuading an authority with no interest in the land to take on a thirty year enforcement role.
The thirty year management and monitoring period
Thirty years is the minimum period for which a biodiversity gain site must be secured, and the covenant has to carry the management plan with it. Expect the schedule to include the habitat creation or enhancement works, the target habitat condition and the timetable to reach it, the management prescriptions, the monitoring regime and reporting dates, and remedial obligations where targets are missed.
Funding is the part that gets skimped. Thirty years of management, monitoring and reporting costs money, and the covenant should say where it comes from, whether that is a capital sum held by the responsible body, a sinking fund, a charge on the land or staged payments. A covenant with impeccable obligations and no funding mechanism is a dispute waiting to happen.
Build in a review. Habitats do not develop to plan, and a covenant that allows the management prescriptions to be adjusted by agreement with the responsible body, without reopening the whole deed, survives contact with reality better than one that does not. The practical interaction with the deemed biodiversity gain condition repays a read alongside this.
Registration and the public record
Two registers matter and they do different jobs. The conservation covenant itself is registered as a local land charge against the land. The biodiversity gain site is entered on the statutory biodiversity gain site register, which records the land, the habitat enhancement, the units created and their allocation to developments.
A proposed off-site arrangement should be checked against both. The covenant proves the habitat is secured. The register entry proves the units exist and have not already been allocated elsewhere. Neither on its own is enough, and an officer reviewing a biodiversity gain plan will want to see the two tied together.
Breach and enforcement
The responsible body enforces, and the Act provides for the usual range of remedies including injunctions, specific performance and damages, with the court able to take into account the public interest in the obligation. A landowner in breach cannot simply pay a sum representing the development value of the land and walk away, which is the behavioural point of the mechanism.
Where the responsible body ceases to be designated, the Act contains provision for the position of existing covenants, and any agreement should deal expressly with substitution of a replacement body. Read those clauses carefully on a scheme that depends on the gain site for its permission.
Drafting points for applicants
- Name the responsible body early and do the due diligence on its designation, governance and funding, because an authority will ask.
- Specify the duration rather than relying on the default, and tie it to at least thirty years from the stated completion of the works.
- Put the management plan in a schedule and make the monitoring reports deliverable to the authority as well as the responsible body.
- Deal with funding, substitution of the responsible body and a mechanism for agreed variation of prescriptions.
- Align the covenant, the register entry and the biodiversity gain plan so that the three documents describe the same units, the same land and the same dates.
A Biodiversity Net Gain Assessment and the statutory metric behind it must be completed by a competent person under the Environment Act 2021 regime, and the biodiversity gain plan has to be approved by the local planning authority. An AI-assisted draft is a starting point for that competent person rather than a substitute for their work, and the same applies to the habitat condition assessment that sits behind the units. The exception for irreplaceable habitats is one of the first things to check before any of this is commissioned.
Reform in this area is still moving, so follow the position on the planning law timeline rather than relying on a drafting precedent from two years ago.
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
What makes an agreement a conservation covenant?
It must be between a landowner with a qualifying estate and a designated responsible body, contain an obligation for a conservation purpose, and be intended by the parties to be for the public good. It must be in writing, executed as a deed, and state that the parties intend to create a conservation covenant. Get the form wrong and it will not run with the land.
Who can be a responsible body?
The Secretary of State, local authorities, and organisations designated by the Secretary of State on application, which in practice means conservation charities, public bodies and some commercial organisations with conservation among their purposes. The list of designated bodies is published and changes, and designation can be withdrawn, so check it rather than assuming an organisation qualifies.
How long does a conservation covenant last?
Where the landowner holds a freehold the default is indefinite unless the agreement says otherwise, and over a leasehold estate it runs for the remainder of the term. For biodiversity gain purposes the agreement should specify at least thirty years from completion of the habitat works rather than relying on the default position.
Is a covenant harder to release than a section 106 obligation?
Generally yes. A covenant can be modified or discharged by agreement between the parties, and otherwise by application to the Upper Tribunal on stated grounds. A planning obligation can be modified by agreement or, after five years, by application to the authority with a right of appeal if refused. That difference is a reason authorities favour covenants for long term habitat.
When should I use a covenant rather than section 106?
Use a covenant for off-site gain sites in a different authority area and for habitat banks serving several developments, because the alternative is asking an authority with no interest in the land to take on thirty years of enforcement. On-site habitat and off-site land within the same authority usually goes into the section 106 agreement already being negotiated.
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.