CONSERVATION COVENANTS: A LOOK TO THE FUTURE

23 / 11 / 2021

In January 2018, the Government suggested in its 25 Year Environment Plan that conservation covenants could be used to enable landowners to make agreements with responsible bodies creating legally binding obligations and deliver lasting conservation benefits. Such covenants might be of interest to landowning clients, including charities.

Conservation covenants are not an entirely new idea. The National Trust Act 1937 enables a landowner to agree restrictions to activities on their land with the National Trust. Similarly, the Forestry Act 1967 allows a landowner to agree with the Forestry Commission that the land will only be used for the growing of timber and other forest products in accordance with the rules and practice of good forestry. However, both agreements can only be restrictive; whereas, conservation covenants can contain positive or negative obligations.

In a planning context, conservation covenants are similar to “section 106 agreements” and “unilateral undertakings”, which permit a local authority to secure restrictions on the use of land.
For conservation covenants to be valid, they must be: (1) of qualifying land (meaning that they contain a positive or negative obligation); (2) for a conservation purpose; and (3) intended by the parties to be for the public good. For example, a landowner may covenant with the Royal Society for the Protection of Birds to permit public access on their land to preserve birdwatching.

The term “responsible body” has a wide definition. A local authority can apply to be designated a “responsible body”, and a non-local authority can apply if some (or all) of its main purposes or functions relate to conservation – for example, public bodies or charities.

The default position is that conservation covenants will last indefinitely where the relevant qualifying estate is freehold, or for the remainder of the term where the estate is leasehold. A conservation covenant will bind the landowner who created it, and any successor of the original covenantor. Responsible bodies can enforce conservation covenants against landowners, and anyone who holds a qualifying estate can enforce against responsible bodies.

Looking ahead, conservation covenants will have a broad range of uses: for example, landowners can negotiate sales subject to certain obligations to preserve a conservation area, or they can agree to prohibit activities on their land which would damage a heritage asset. Conservation covenants might also interest charities disposing of interests in land.

The Private Client team works closely with colleagues in the Real Estate Group to advise landowning clients affected by this type of issue.