What is a conservation covenant?

The Environment Act 2021 is a wide-ranging piece of legislation. It implements measures intended to tackle – among other things – air and water pollution, waste and resource inefficiencies, species decline and biodiversity loss.

The Act has introduced something called a "conservation covenant". This is a new resource available to landowners and conservation bodies in England.

It aims to answer a specific form of the general question asked by the Law Commission in 1998: "How far should one generation be given freedom to dispose of property in ways that will restrict the freedom of the next?" Or in the context of conservation: how can landowners play a positive role in the conservation of their land's natural or heritage features, when there's no guarantee that the next owner will take the baton?

Conservation covenants are one answer to this question. Landowners and bodies concerned with conservation enter into a voluntary, private agreement that aims to make lasting conservation commitments. The "responsible body" in the partnership could be a local authority, conservation charity or for-profit organisation.

The agreement is voluntary but legally binding. The commitments to conservation made will be handed on to the next owner.

Conservation organisations will naturally want to enter into these agreements as a way of building a greener future for the land in question. Landowners, by contrast, are likely to do so from an altruistic commitment to environmental sustainability. 

What could a conservation covenant include?

Conservation covenants are there to conserve either the land's natural environment or its heritage features.

A landowner could use it to secure income and funding for conservation projects – and, in the process, bind future landowners to these objectives.

A conservation body could use a conservation covenant as an alternative to purchasing land. Rather than taking over and conserving land themselves, they can lay down obligations for landowners in exchange for funding. This has the potential to be a more cost-effective way of achieving long-term goals.

These obligations can be positive or restrictive. Positive obligations include:

• Maintaining woodland
• Committing to the conservation of an archaeological site
• Planting flowers that increase biodiversity
• Taking steps to protect rare species
• Protecting a habitat

Restrictive obligations could include:

• Not planting coniferous trees (guilty as they are of species loss)
• Not implementing agricultural drainage
• Not using pesticides on native plants
• Not using fertiliser on hay meadows
• Not planting trees at sites of archaeological interest

What's in it for landowners?

The main motive for landowners to enter into a conservation covenant is altruism – a desire to behave in an environmentally friendly way and to ensure that future owners will do so too.

At present, there are no tax incentives, which means charities and local authorities are likely to lead the way.

This is one way in which England's conservation covenants differ from their stateside equivalent, conservation easements. The US federal government encourages landowners to participate by offering income tax deductions.

How do you create one and what should it include?

A conservation covenant is an agreement, not a contract. It hinges on the landowner and responsible body deciding together how best to achieve a conservation outcome for the public good. They have to agree on a duration for the agreement and register it on the local land charges register.

The agreement has to be executed as a deed. The precise details of writing a deed vary depending on who the responsible body is, so seeking legal advice at an early stage can be advisable.

The deed sets out what the landowner and responsible body will do to conserve the land. This can include restrictive obligations, positive obligations and what the responsible body is allowed to do on the land.

Terms of the agreement include things like the duration of the covenant and what to do in the event of a dispute.

How long do they last?

The duration of a conservation covenant is set by the landowner and responsible body.

However, a conservation covenant doesn't have to specify a duration. In this instance, it will last indefinitely on freehold land and until the lease ends on leasehold land.

It could be that a specific duration has to be set. To take one example, if a conservation covenant is agreed to increase biodiversity net gain, then it must last for at least 30 years.

A conservation covenant is legally binding for both future landowners and any responsible body that takes over from the current one.

How can legal advice help?

Conservation covenants are a new phenomenon in England and they rely on private negotiations between landowners and responsible bodies – not a tried-and-tested exchange of contracts.

For this reason, the government is encouraging participants to seek legal advice before entering into a conservation covenant agreement.

Several factors could influence the duration of the agreement – and it's important to know what these are before you seal the deal, along with the formalities of deed writing.

Working with an experienced agricultural lawyer decreases your chances of having to alter or terminate the agreement, with all the legal fallout that could entail.

At Milners Law, our mission is to make law simple – no jargon, no-nonsense, no fuss. We have a team of experienced expert lawyers with hands-on farming knowledge to help you with any agricultural issue.

Whether you're looking to enter into a conservation covenant, need help setting up a partnership, are planning for succession or seeking to resolve a dispute, we're more than happy to help. Please don't hesitate to contact us for a free, no-obligation consultation today.