Rural Estates Newsletter February 2023 - Flipbook - Page 25
A much broader application?
While using conservation covenants to secure BNG is a fairly clearly defined proposition,
they may also have a more wide-ranging set of possible uses. Taking the first key
characteristic: that it must be made between a landowner and a responsible body, the
immediate question is who or what could qualify as a responsible body? It is for the
Secretary of State to appoint them and guidance states they can be a local authority or
charity, but public or private sector organisations are also given as examples, as long as
their main purpose or activities relate to conservation. So, although the examples that
spring to mind are existing, public wildlife charities, private charities and organisations
are also included. Could a rural estate itself, or a special purpose vehicle (SPV) created by
it, be a responsible body? Perhaps so. That said, it is worth noting that the obligations on
responsible bodies in the 2021 Act are relatively onerous and not lightly to be undertaken.
The second characteristic: the requirement for there to be a conservation purpose, is
equally widely drafted. It includes conserving, protecting, restoring or enhancing (any
of) the natural environment, natural resources of land, cultural, historic, archaeological,
architectural or artistic features of land, or the surrounds, settings or landscape of any
land with these features. So not just wetlands and newts, but also preserving the setting of
historic buildings or maintaining woodland. Or what about historic gardens or
art collections?
Finally, it must be for the public good. This is not defined in the 2021 Act, but Defra
guidance describes it as something that “… [benefits] the public in some way. For example,
you could conserve land as a place of archaeological, architectural, artistic, cultural or
historic interest that the public can enjoy”. Public access is not a prerequisite but is hinted
at where appropriate and only talked about as excluded where, for example, flora require
being left undisturbed.
These are just some examples. Taken in the round, the full potential of this new legal tool
is likely to take some time to be fully realised, but one can already see the diversity of
possible applications.
Beware the detail
On a more mundane level, conservation covenants create points of detail that need
careful attention if one is to avoid unpleasant surprises; all the more so because they are
specifically designed to be long-term and relatively difficult to alter.
Conservation covenants can be modified by agreement, but if the parties do not agree,
it requires an application to the Upper Tribunal, which is neither quick nor easy. Defra
guidance states that those buying land subject to conservation covenants will take on
liability for existing or past breaches (and transgressions can be penalised by injunctions or
exemplary damages). Furthermore, although the requirement for BNG on planning under
the 2021 Act is 30 years, conservation covenants, unless specifically stated otherwise, will
run in perpetuity in freehold land, or for the unexpired duration of the term in leasehold
land. There are also general provisions that responsible bodies can be substituted with little
control by the landowner, so the long-term agreement entered into with one party could
end up in the hands of quite another.
All told, it will be fascinating to watch the development of conservation covenants and how
they end up being used, both inside and outside the BNG box.
Rural Estates Newsletter
February 2023
25