The suspension of the passage of the Environment Bill 2019-21 through Parliament due to the Covid-19 pandemic provides an opportunity for more in-depth consideration of some of the key issues the Bill aims to address. The Bill is still at a very early stage in its passage through Parliament and so there is scope for amendments to be introduced. In each of this series of articles, we will explore an area of interest and the approach the Bill takes towards it.
Broadly speaking, a conservation covenant is an agreement between a landowner and another body of some form (frequently a government minister or conservation charity) that the landowner will do or refrain from doing certain actions on their land in order to protect an aspect of the natural environment. The agreements are intended to run with the land meaning that future owners of the land are bound by the covenant. Their existence as a standalone concept is necessitated in England and Wales because our law does not recognise the concept of positive covenants binding future owners.
There have been discussions about the introduction of such a concept into the law of England and Wales for many years and the Law Commission published their report on the matter back in 2014. They already exist in some form in other jurisdictions, such as Scotland, and in some specific situations in England and Wales, for an example see the concept of environmental covenants introduced by s.51 of the High Speed Rail (London – West Midlands) Act 2017 (“HS2 Act”).
Part 7 of the Environment Bill
The Environment Bill introduces conservation covenants through the detailed provisions included in Part 7. The legislation outlines a conservation covenant as an agreement made between a responsible body and a landowner. There are key requirements for the agreement in that it must (a) contain a provision of a qualifying kind which has a conservation purpose and (b) it must be intended by the parties to be for the public good (clause 102). Conservation purpose is given a broad meaning in clause 102(3).
The obligation in the agreement to do something on the land can be binding on the landowner or on the responsible body. Additionally, the landowner can be obliged to allow a responsible body to do something on the land. Responsible body is defined at clause 104, as including the Secretary of State and any body which the Secretary of State designates which is a local authority, a public body or charity where at least some of its main purposes or functions relate to conservation or any body where at least some of its main activities relate to conservation. This opens the door to responsible bodies being able to provide expertise and activities beyond that which could be expected from the landowner in order to offer increased environmental benefits. Clause 121 of the Bill requires designated responsible bodies to make an annual return to the Secretary of State setting out whether there are any conservation covenants under which an obligation was owed to it as the responsible body during the relevant period of time.
The new conservation covenants will be binding on most future owners or successors in title to the relevant land so long as it is registered as a local land charge (see clauses 105-107). However, clause 107(5) provides an exception to this for positive obligations which will not bind a person who becomes a successor by virtue of taking a lease granted for a term of seven years or less. Such a limitation is not included in the rules governing environmental covenants under the HS2 Act and the extent of the difficulties presented by the fact that the person in occupation and control of land might not be required to comply with the covenant will remain to be seen.
In their 2014 report, the Law Commission identified three examples of how conservation covenants might be used which were:
- The protection of woodland over generations – i.e. the use of a conservation covenant to ensure that anyone inheriting the land continues to protect any particular special features on the land.
- The sale of heritage property – i.e. enabling conservation bodies to sell heritage properties to private individuals with the knowledge that future owners would be obliged to preserve its heritage value.
- The provision of biodiversity offsetting sites – i.e. compensating harm caused by the development of one site by providing an ecological gain on another site and ensuring its maintenance by the use of a conservation covenant.
This final example of the use of conservation covenants is likely to become all the more pertinent due to the new requirement under clause 90 and Schedule 14 of the Bill for developments to provide a biodiversity net gain. The covenants could be a tool to ensure that any environmental mitigation implemented will be maintained as such even if on third party land.
 Law Commission Report No 349, p.2 (https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2015/03/lc349_conservation-covenants.pdf)