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Conservation covenants: a useful tool?

30 July 2014

A new Law Commission report proposes the introduction of 'conservation covenants' to help landowners conserve and restore our natural and built environment. We consider the implications for the planning and development process.

The aim of the Law Commission's report (published 24 June 2014)  is to create a new 'legal tool', which landowners can use to protect urban land or countryside.

There may well be circumstances where landowners willingly enter into such covenants, although the Report anticipates that, more commonly, they will be used as part of the planning process.

The proposals

A conservation covenant is a voluntary agreement between a landowner and a responsible body to do, or not do, something on their land for a conservation purpose. Important points:

  • the designated 'responsible body' will be responsible for monitoring and enforcing the landowner's obligations - ie local authorities, public bodies (such as Natural England and English Heritage) and conservation charities
  • the agreement must be made for a conservation purpose - these include conserving, protecting, restoring or enhancing the natural environment, the natural resources of the land, cultural, historic, archaeological, architectural or artistic features of the land, or, the surroundings, setting or landscape of any land which has these features
  • the responsible body does not need to own neighbouring land - this is in contrast to restrictive covenants which can only be put in place where it is possible to identify land which benefits from the covenant
  • conservation covenants can contain both restrictive and positive obligations, and
  • the obligations may remain in force in perpetuity - it is currently not possible to create positive obligations in a restrictive covenant which will automatically bind future owners of the land.

The aim is to guarantee the long-term conservation of the land, perhaps to secure maintenance of important woodland or preserve a particular habitat that is home to a rare species of bird. Equally conservation covenants could be used to secure continued public access to and enjoyment of land.

Impact on development

The report proposes that conservation covenants are used as part of the planning process where necessary to mitigate the impact of development, alongside the existing system of section 106 agreements. The Law Commission consider section 106 agreements to be unsuitable for conservation aims, as that they last only between 10 and 30 years and can be modified or discharged.

These concerns are perhaps overstated - section 106 agreements can be drafted to last for an unlimited period and can only be modified or discharged by agreement with the local planning authority or on appeal where the agreement no longer serves a useful planning purpose.

The government has recently undertaken biodiversity offsetting pilots in 6 areas. Offsetting requires the loss of biodiversity through development to be quantified and replacement biodiversity of at least equivalent value to be secured in the long term, generally through section 106 and management agreements. 

Conservation covenants could provide an additional mechanism to secure such biodiversity offsetting obligations as part of the planning process.


The report expects conservation covenants, if introduced, to be widely used. In practice, it is likely that developers will only enter into a conservation covenant if necessary to secure planning permission.

The covenants may, however, give comfort to landowners wishing to ensure that their land is conserved in perpetuity. Conservation charities and other public bodies are also likely to see the benefits of such agreements.

The government's response to the Law Commission's proposals is awaited.

This article was written by Mark Smith.

For more information please contact Mark on +44 (0)20 7427 6722 or mark.smith@crsblaw.com.