31 January, 2022
On 9 November 2021, the Environmental Bill 2021-22 received Royal Assent, which became the Environment Act 2021. The bill passed three years after its first proposal to deliver and administer environmental considerations in the wake of Brexit. The aim of the bill is to create a stricter legal framework, which will help the UK reach their goal of net-zero carbon emissions by 2050.
Part 7 of the act introduces the concept of conservation covenants. While the principle of covenants with a "green" purpose behind them are not a new concept, this new regime has key elements that stand it apart from earlier land law principles.
In general terms, a covenant is a binding agreement to regulate the actions of a party, that are either positive (to undertake certain protective measures) or restrictive (not to do something that would cause harm) or both. A conservation covenant goes further as it specifically has to protect the natural benefit of the land for the public good. It is designed to conserve and enhance the natural value of land by introducing a measure to protect wildlife. These agreements are not designed to be overseen by a public body, and are private agreements between a landowner and a "responsible body" which are bodies such as a local authority or charity. They will "run with the land" (regardless of whether positive or negative) which means they bind all future owners, and they are lodged on the public land charges register maintained by the local authority to be seen by all who search it.
An example of such measures may include an agreement to plant trees by a landowner, in a deal with another company to perhaps offset their certain carbon credits. The trees may not immediately assist in an environmental benefit by reducing carbon, but will do in the long term and the conservation covenant would set out a framework of managing what can (and should) and can't be done with the trees over the coming 30+ years regardless of who owns the land
As the market for green development increases, conservation covenants may provide developers and local planning authorities the opportunity to enhance their existing processes and to improve biodiversity net gain across their region
While the take up has been slower in certain local authority districts than others, there is likely to be an increase in planning requirements to include conservation covenants and developers need to be alive to this. The use of conservation covenants will provide another avenue for potential onsite mitigation measures and the government have seen this as complimentary to other existing conservation activity.
As part of a developers investigations into land they are looking to acquire or develop, they will be keen to establish what if any agreements have been entered into, and what effect this may have on immediate profitability and long term liability. However working with conservation covenants may have a positive impact on joint ventures with landowners and other stakeholders, in particular charitably bodies, who have a requirement for positive social and environmental influences.
Some landowners may have concerns that imposing laborious conservations obligations could have a negative impact on the value of their land. In reality, there will be a cost to complying with conservation covenants in some way, and that cost has to be borne by someone.
There has been a compelling amount of support generally for conservation covenants, and a growing awareness of the way we all wish to treat the natural world appears to be at the heart of this. However the way they continue to shape the way developers, planners, and the market generally view these alongside commercial and practical considerations remains to be seen.
For more information contact Matthew Jones in our Construction & Infrastructure department via email or phone on 01254 222316. Alternatively send any question through to Forbes Solicitors via our online Contact Form.
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