The Green Unknown: Might Conservation Covenants Transform The English Countryside?

• Published date: 16 August 2022
• Subject Matter: Environment, Real Estate and Construction, Environmental Law, Land Law & Agriculture, Landlord & Tenant - Leases
• Law Firm: Forsters
• Author: Mr Thomas Mawson and Henry Vane

Conservation Covenants ("CCs") will allow landowners and developers to deliver "public money for public goods" through large-scale Environmental Land Management Schemes, tap into emerging private natural capital markets and discharge Biodiversity Net Gain obligations. If they are really to take off, the Government needs to align the tax regime with these environmental incentives.

CCs are a quietly radical innovation with the potential to revolutionize the way English and Welsh land is owned and managed. Introduced in the recent Environment Act and inspired by similar concepts in other countries, CCs will allow landowners to contract voluntarily with a "Responsible Body" to commit their land to "conservation". They will be new "statutory burdens on land", a unique and interesting mixture of new and existing legal instruments.

Tying up land long-term, perhaps even indefinitely, in such a specific way is a dramatic step and we will see how popular they become. Rural landowners will be expected to provide land for conservation and to meet Biodiversity Net Gain ("BNG") and other targets, so CCs will be particularly relevant to them. Moreover, sustainability is now so embedded in the national consciousness that, soon, every development will have a conservation element, even if only to offset or outsource its obligations, and particularly to provide the BNG required for planning permissions.

In this article, we try and answer the following questions:

1. What are CCs?;
2. How will CCs work?; and
3. Why would a landowner want to enter into a CC?

1. What are CCs?

1.1 Context

CCs have been part of the conservation conversation for some time. The Law Commission published a report in 2014 and the Government carried out a consultation in 2019. They also exist, in various forms, in other jurisdictions including Scotland, New Zealand, USA and Australia. England and Wales formally introduced them in the Environment Act, which received royal assent on 9 November 2021. CCs will come into being on 30 September 2022.

1.2 The legislation

Part 7 of the Environment Act is the Big Bang for CCs in England and Wales. There are two main elements. A landowner must contract:

1. with a "Responsible Body"; and
2. to use the land for a "conservation purpose".

1.3 What is a Responsible Body ("RB")?

RBs must be approved by the Government and have some kind of conservation purpose. They will be responsible for enforcing the landowner's obligations, but it can be either the RB or the landowner who actually carries out the conservation work. Both the landowner and the RB can enforce against one another like parties in a conventional contract (RBs will not be arms of the state).

It seems likely that RBs will principally be large, national charities like the National Trust or the RSPB, but they could also be local (even community) bodies set up specifically for small-scale projects. They will not receive any public funding for administering CCs. At this stage, various questions arise:

1. Will RBs be mainly existing bodies or new ones set up specifically to enter CCs?
2. Will RBs be primarily national or local? (Even...