Ben Stansfield
Partner
Article
11
Improving habitats and restoring our natural world is critical if we are to avoid the worst effect of man-made climate change; accordingly, the Government's 25 Year Environment Plan targets improvements for nature and biodiversity, and the Environment Act 2021 (the Act) imposes a requirement for compulsory biodiversity gains for all developments (see our earlier article on 'the case for biodiversity').
One of the key mechanisms for securing Biodiversity Net Gain will be conservation covenants, a new legal tool in England, although considered by the Law Commission eight years ago. Conservation covenants may be a new concept for some developers, they will rapidly become familiar when they come into force from 30 September 2022.
We set out below ten things you need to know about the new conservation covenant regime:
A conservation covenant is an agreement between a landowner and a responsible body containing provisions of "a qualifying kind" that has a conservation purpose and is intended to be for the public good.
A provision of a "qualifying kind" means that it must either require a landowner to do, or refrain from doing, something on their land; or require a responsible body to do something on that land.
The requirement for a conservation purpose will be satisfied if the purpose of the covenant is to conserve, protect, restore or enhance:
It is clear that conservation covenants will have a far broader use than for just securing biodiversity net gain, for example they may find a place in conserving heritage assets.
In future, every planning permission will be deemed to include a condition requiring a biodiversity gain plan to be submitted to, and approved by, the local planning authority before development is commenced.
The Act inserts a new Schedule 7A into the Town and Country Planning Act 1990. Schedule 7A broadly requires that biodiversity improvements can only be taken into account by a planning authority (when considering the biodiversity gain plan), where the maintenance of that habitat enhancement is secured for 30 years by a planning obligation or a conservation covenant.
While maintenance of new habitat or biodiversity measures may be the principal focus of conservation covenants, it is likely that they will also deal with establishment of the habitat and, where relevant, public access.
The Act provides that the Secretary of State, and those bodies designated by them, will be "responsible bodies" capable of entering into conservation covenants with landowners and enforcing landowners' obligations.
Local authorities may be designated provided that the Secretary of State considers they are "suitable" to be a responsible body (which will surely be the case in all but the rarest of occasions); but of greater interest is that other parties may be so designated if their purposes, functions or activities relate to conservation - further criteria may be provided in future. We may well see expert bodies (wildlife trusts, charities, etc) seeking to become responsible bodies; especially where they have expertise, whether in the locality or in the management of that type of habitat.
A conservation covenant may contain positive, or negative obligations, or both. They may be given by the landowner, or indeed the responsible body.
A positive obligation might require certain specified management and maintenance actions to be undertaken for a specified time (in return for a fee where given by a responsible body), to allow public access on certain terms. Negative obligations may, for example, prevent the use of pesticides or herbicides, or indeed the use of fertilisers, or the cutting of a meadow.
In a biodiversity net gain context, the covenants will need to be for 30 years but the Act provides a default position whereby covenants will be indefinite for freeholders, or in the case of leasehold interests, the remainder of the leasehold term.
Conservation covenants given by landowners are owed to the responsible body, and vice versa.
Landowner conservation covenants will bind successors in title; whether future owners of the relevant land, or those whose interest is subsequently created, such as leaseholders. Covenants given by responsible bodies will be owed to landowners and their successors.
The Act allows for four remedies for those seeking to enforce the obligations within the conservation covenant:
In considering whether to grant an order requiring specific performance and an injunction, the Act makes clear that the court must take into account the public interest. Where a landowner breaches the obligations, the court is able to award exemplary damages to ensure that the landowner does not financially benefit from its breach.
Yes, the Act sets out a number of defences to enforcement proceedings and these depend upon:
We expect that in the vast majority of cases, breaches will be dealt with outside the court system, although responsible bodies will not necessarily be as predictable as more usual regulatory bodies. It might well be the case that the Secretary of State provides guidance on this issue in future.
The Act contains provisions enabling modification of conservation covenants with the agreement of the responsible body; and applications to the Upper Tribunal can be made to discharge or modify obligations.
Given the importance of the conservation covenant to the biodiversity net gain regime, it may well be that the approval of the local planning authority to modifications and/or discharge of obligations will also be required. Indeed, without such a provision, it may be difficult to obtain the approval of the local planning authority to the biodiversity gain plan.
The Act sets out relatively few formalities for conservation covenants, however, the agreements must be executed as deeds, and it must make clear that the parties intend to create a conservation covenant.
There are no requirements for plans to be appended to the covenants, although clearly those will be critical to identify the relevant land.
There is no prescribed form of conservation covenant, and while the Act envisages bi-partite agreements between landowners and responsible bodies, in the context of biodiversity net gain they will need to be approved by the local planning authority as part of the biodiversity gain plan. As such, we may find local planning authorities either imposing a standard form, or requiring certain matters to be included.
We expect conservation covenants to contain:
To discuss any of the points raised here about the new conservation covenant regime or any issues arising for your business in relation to the Environment Act 2021, please contact Ben Stansfield.
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