Conservation covenants for securing habitat for 30 years

A conservation covenant is a private agreement, made as a deed between a landowner and a designated responsible body, that binds the land itself rather than the person who signed it. Part 7 of the Environment Act 2021 created them in England, and they have become the standard way of securing habitat on an off-site biodiversity gain site for the 30 years the regime requires. The choice between a covenant and a section 106 obligation is a practical one, and it usually turns on where the gain site sits.

What a conservation covenant does

The agreement must be made in writing as a deed, state that the parties intend to create a conservation covenant, and be for a conservation purpose. Conserving the natural environment of land, including its flora, fauna and geological features, is squarely within that.

The obligations can be positive or restrictive. A gain site covenant typically requires the landowner to carry out habitat creation works to a plan, to manage the land in a stated way, to allow monitoring access, and not to do things that would undermine the habitat.

What makes it useful is that it runs with the land. A covenant takes effect as a local land charge, so it is registered against the land in the local land charges register and binds successors in title. The purchaser of a field in twenty years takes it subject to the covenant whether or not they read the file.

The landowner must hold a qualifying estate, which means the freehold or a leasehold with more than a set minimum term remaining. Check that at the outset, because a covenant granted by someone without a qualifying estate does not do what everyone assumed it did.

Responsible bodies and how they are designated

Only a designated responsible body can be the other party. The Secretary of State designates them, and the published list includes local authorities, public bodies and organisations whose purposes relate to conservation, including some operating commercially.

Not every organisation offering gain sites is a responsible body, and not every responsible body wants to hold covenants for third parties. Confirm the designation on the current published list rather than taking it from a brochure.

Ask two further questions before accepting a body. What does it charge for holding and monitoring the covenant over the full period, and what is its capacity to enforce if the landowner stops complying. A designation is a legal status, not a guarantee of resources.

A body can be replaced, and the legislation provides for what happens where one ceases to be designated. Understanding who holds the covenant and what happens if they go is worth the reading, and the companion piece on what a conservation covenant is and who holds it sets out the mechanics.

Covenant compared with a section 106 obligation

Both bind the land and both are used to secure habitat. They differ in who can enforce and in what is required to create them.

The practical difference for off-site biodiversity gain is the cross-boundary problem. A gain site in one district serving a development in another cannot easily be secured by a section 106 obligation with the second authority, because that authority has no land in its area to enforce against. The covenant route removes the difficulty entirely, which is why most commercial gain sites use it.

Which is preferred for an off-site gain site

Where the gain site lies in the same authority area as the development, either works, and a section 106 obligation may be simpler because the authority is already party to an agreement.

Where it lies elsewhere, the covenant is the better instrument. It is also better where the gain site serves several developments over time, because the covenant secures the land once and allocations to individual permissions are then made through the biodiversity gain sites register rather than through a new agreement each time.

One caution. A covenant secures the habitat but it does not, by itself, secure the money to deliver the habitat. Those obligations have to be drafted in, with a funding mechanism that survives a change of ownership. The reasons habitat creation fails are usually practical rather than legal, and the account of planting seasons and habitat creation failure explains why the remediation obligations matter more than the covenant's existence.

Land registration and successors in title

A conservation covenant takes effect as a local land charge, which means it appears in the search a purchaser's solicitor carries out on the property.

Register it promptly. A covenant that has not been entered in the register may not bind a purchaser who buys without notice, which would defeat the whole arrangement at exactly the moment it matters.

Where the land is mortgaged, deal with the lender. A covenant restricting the use of land for 30 years affects its value and a lender's consent is usually needed. Obtaining that consent after the covenant is signed is much harder than obtaining it before.

Keep a complete pack: the executed deed with plan, the habitat management and monitoring plan, the local land charge entry, the register entry for the gain site and the allocation records for each development it serves. The person who needs it in fifteen years will be a solicitor, not an ecologist.

Modification and discharge

Covenants are not immutable, and the legislation provides two routes.

The first is agreement between the landowner and the responsible body. That is the normal route for sensible adjustments, for instance where a management prescription turns out not to suit the site.

The second is an application to the tribunal, which can discharge or modify a covenant where the statutory grounds are made out. The tribunal route exists so that land is not sterilised by an obligation that has become pointless, but it is not a way out of an inconvenient bargain.

For biodiversity gain purposes the local planning authority has an interest in any modification, because the gain plan it approved depends on the habitat being delivered. Build a notification requirement into the covenant so that a change cannot be agreed quietly between two parties when a third relies on it.

An illustrative example

A landowner covenants 14 hectares of arable reversion to species-rich grassland with a responsible body for 35 years, five years longer than the minimum. The deed fixes the creation works, an annual monitoring visit, a reporting duty to the responsible body, a remediation obligation with a funded contingency, and a requirement to notify the two local planning authorities whose developments the site serves before any modification is agreed. This example is illustrative.

Practical drafting points

Six things repay attention in every gain site covenant.

1. Identify the qualifying estate and confirm it, and obtain any mortgagee consent before execution.
2. Plan the land precisely, with a scaled plan and a written description, distinguishing the habitat area from access and management strips.
3. State the period expressly and start it from a defined trigger, not from the date of the deed if works have not begun.
4. Put the habitat management and monitoring plan in a schedule and provide for it to be updated by agreement.
5. Include remediation obligations with a funding mechanism that binds successors, and a step-in right for the responsible body.
6. Require notification to the relevant local planning authorities on any proposed modification or discharge.

The underlying ecology work still has to be right. The statutory metric must be completed by a competent person, the baseline survey carried out at an appropriate time of year, and any protected species work done by a suitably licensed ecologist. A preliminary ecological appraisal and the biodiversity net gain assessment that follows are the documents the covenant is built on, and a drafting error in the plan schedule is easier to fix than a survey done in the wrong month.

Enter your postcode on PlanScope to see which ecology reports a scheme is likely to need.

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. For specialist technical reports, qualified professional input may be required.