PAS hosted an online session with Defra to introduce Conservation Covenants and the role of Responsible Bodies in implementing them on 2nd August 2023. The session explained why organisations might want to become a responsible body, how they can apply to be designated one and the criteria that will be used to assess them to be designated.
At this online session hosted by PAS, Defra introduce Conservation Covenants; what they are, why they have been introduced, and how they might be used, and the role of Responsible Bodies in implementing conservation covenants. Explaining how organisations can apply to become a Responsible Body and the criteria that will be used to assess them against.
Conservation Covenants & Applying to become a responsible body FAQs
Following the session 2nd August Defra colleagues have produced a series of useful response to some of the key questions raised during the session around the following topic areas. These will be added to as responses to other useful questions are produced. Update 15/09/23.
The Application Process
All applications for responsible bodies will be assessed against the published criteria in the same way, irrespective of the type of organisation that is applying. As set out in the Environment Act, a local authority will not be asked to provide evidence to show that conservation is one of its main functions or purposes but, aside from this, a local authority will need to provide the same evidence as any other applicant.
An applicant may state that it intends to enter into conservation covenant agreements related to both the natural environment and heritage but will need to provide evidence to show the organisation has the relevant expertise to enter into both types of agreement with landowners.
There are no thresholds for the size of organisation able to apply to become a responsible body. However, as part of the application process, applicants will need to provide evidence that the organisation has the operational capacity and capability to effectively manage and enforce the types of covenants it expects to enter into with landowners. This includes evidence of a workforce structure and capacity that allows for effective delivery of covenants, working collaboratively with landowners to achieve successful outcomes, and monitoring and evaluating projects.
Conservation Covenant Agreements
Defra will not be providing a ‘model’ example, template, standard wording or fee structure for general use. As conservation covenants are expected to function for a wide range of purposes, providing any kind of template or example could lead to the incorrect assumption that they can only be used in restricted formats or circumstances. This may have unintended consequences and lead to the loss of long-term conservation opportunities.
The core conservation covenants guidance does contain a section on 'What you need to include in a conservation covenant agreement': https://www.gov.uk/guidance/getting-and-using-a-conservation-covenant-agreement
As well as helping to deliver off-site biodiversity net gain, by providing an alternative to existing planning obligations, conservation covenants may be used in a number of scenarios, for example:
Payment for ecosystem services: an area of woodland upstream of a river that passes near homes has helped mitigate localised flooding. After negotiations, the landowner agrees to continue with current land management practices, restoring and maintaining the woodland in return for a yearly payment. The obligations for management and payments are set out in a covenant between the landowner and the responsible body, appointed by the secretary of state.
Altruism: a landowner has inherited extensive moorland that includes a crag much used by rock climbers. The owner intends to leave the land to his children, who plan to use a conservation covenant to ensure that the moorland is properly managed and that the public continues to have access to the crag.
Alternative to land purchase for conservation organisations: a wildlife charity identifies that a plot of land is the habitat of a native bird species. It makes a financial offer to the landowner in return for the habitat being maintained. The landowner agrees. The conservation covenant sets out the obligations that the latter has to carry out to receive the offered payment.
Disposals of land by conservation organisations: a heritage group has invested funds in buying and restoring a Victorian house. The organisation wishes to sell the land, but also to preserve the work it has carried out and the heritage value of the property. A conservation covenant ensures that future owners of the property maintain the improvements made.
A body, including a local authority, cannot act as both responsible body and landowner in the same conservation covenant agreement. If a local authority wants to enter into a conservation covenant agreement as a landowner, it can agree a conservation covenant with a responsible body other than itself. Likewise, it can enter into an agreement as a responsible body with a separate landowner.
All conservation covenants must be registered on the local land charges register by the responsible body, so that it will be legally binding both for future landowners and a responsible body that may take on the conservation covenant from another responsible body.
Defra will send guidance to newly-designated responsible bodies about how to register a local land charge for their conservation covenants.
Comparisons to other schemes
The Deed of Dedication is a specific legal agreement between Fields in Trust and the owner of a publicly accessible recreational green space, to protect it in perpetuity for current and future generations to enjoy.
While similar in nature, conservation covenants are much broader in scope, as they can be agreed between any landowner and a designated responsible body and used to conserve the natural or heritage features of the land. The landowner and responsible body can decide how long the conservation covenant will last for, including in perpetuity. A conservation covenant agreement must be both for the public good and have a conservation purpose.
Under the Environment Act 2021, every county in England is required by law to produce a Local Nature Recovery Strategy (LNRS) and the regulations set out how 'responsible authorities' must work with Natural England and other local planning authorities in their strategy area to prepare and agree their strategy. LNRS responsible authorities were directly appointed by the Defra Secretary of State as part of this.
In contrast, conservation covenants are voluntary agreements and organisations can choose to apply to become a responsible body if they wish to enter into private conservation covenant agreements with landowners.
Income
Conservation covenants are private agreements. The parties therefore need to be satisfied that they have the resources to fulfil the obligations in the conservation covenant.
Funding could come from a range of sources, such as: the landowner; the responsible body; a developer in a net gain scenario; an endowment; income generated by the covenant. The obligations in a covenant could generate a regular income, for example, from flood mitigation services or from tourism.
A conservation covenant can be used to secure income and funding for conservation activities, for example an environmental charity could pay a landowner to manage land in a way that achieves long-term conservation results.
As private legal agreements, it is for the landowner and the responsible body to agree the terms of the covenant, including any charges or fees. Details of any payments to be made by one party to another can be included in the agreement. Defra will not be providing any guidance on pricing structures.
Enforcement
As conservation covenants are private, voluntary agreements, where one party breaches a conservation covenant, it falls to the other party to take enforcement action. They can aim to resolve the breach themselves, use alternative dispute-resolution mechanisms or, ultimately, take the matter to court.
A range of court remedies are potentially available, including injunctions to stop damaging activities; orders requiring performance of the covenant; and awards of exemplary damages to ensure there is no financial gain from the breach.
If the landowner and responsible body cannot agree on changes to the conservation covenant agreement, they can take the case to the Lands Chamber of the Upper Tribunal. This should be a last resort, as the process can be complicated and costly.
You can find out about the process for referring a case to the Upper Tribunal in the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010.
You can also seek independent legal advice on the options available to you.
If Defra is informed that a responsible body may be failing to meet the criteria for being a responsible body, they will ask the responsible body to provide information about its performance, how it plans to address any failings and whether any of its functions are being carried out by another responsible body. The responsible body will have one month to provide this information.
If there are still concerns after the organisation provides this information, or if it does not provide the information in time, Defra will assess whether the organisation continues to meet the criteria for being a responsible body.
Defra will carry out this assessment using the same method used when selecting new responsible bodies. Defra will notify the organisation of the outcome of the assessment within 12 weeks.
If the Secretary of State concludes that the organisation does not meet the criteria for being a responsible body, Defra will revoke the organisation’s designation as a responsible body.
We do not expect the Office for Environmental Protection (OEP) to have a role in holding parties to a conservation covenant to account.
Privacy
Some information about the conservation covenant will be available on the relevant local land charges register, including when it came into existence, the responsible body, and the details of the land affected. This information does not have to include the conservation covenant itself or details of individual obligations under the covenant.
Whether further information is made public is a matter for the landowner and the responsible body.
Where the responsible body is a public authority, they may be obliged to disclose information in accordance with the Freedom of Information Act 2000 or the Environmental Information Regulations 2004.
Where conservation covenants are used for purposes such as biodiversity net gain, or as part of schemes with attached funding, there may be additional requirements about what information is made public.
All personal data held by a responsible body should be dealt with in accordance with data protection legislation.
The Environmental Information Regulations 2004 allow members of the public to request environmental information from public authorities. As a result, where a responsible body is a public authority, they may be required to disclose information about conservation covenants they hold.
Responsible bodies / role
As set out in more detail in the core conservation covenant guidance: https://www.gov.uk/guidance/getting-and-using-a-conservation-covenant-agreement, a responsible body can transfer a conservation covenant to another responsible body, unless the conservation covenant states that it cannot.
This might need to happen if a responsible body is going to be removed from the responsible bodies list or if another responsible body is more suitable. The transfer is voluntary and both responsible bodies must agree to it. A conservation covenant can specify the type of responsible body that it could be transferred to.
As set out in more detail in the core conservation covenant guidance: https://www.gov.uk/guidance/getting-and-using-a-conservation-covenant-agreement, where the responsible body under a conservation covenant ceases to be a responsible body, the Secretary of State for the Environment will automatically become the custodian of the conservation covenant and will either look for another responsible body to hold the conservation covenant(s) – this may involve liaising with the outgoing responsible body on a possible successor - or decide to take on the role of the responsible body under the conservation covenant.
If an organisation is no longer operating or has requested to have its status as a responsible body revoked, Defra may liaise with it about a possible successor.
As conservation covenants are private agreements between a landowner and a responsible body, the responsible body will itself need to ensure that it has the resources, skills and expertise needed, including to monitor and enforce agreements, ensuring that the landowner is carrying out the conservation covenant.
If an organisation is successfully designated as a responsible body, it must continue to meet the criteria for being one or will need to notify the Secretary of State if its organisation’s circumstances change, especially if its purposes, functions or activities no longer relate to conservation. A failure to notify Defra of any changes in circumstances, may mean an organisation's designation is revoked and it is removed from the published list of designated responsible bodies.
As the use of conservation covenants is voluntary, it will be for any organisation to decide whether or not to be involved where they consider there to be an overall benefit from doing so, either as a landowner, responsible body or indirectly through an arrangement with the parties.
The wider benefits of becoming a responsible body include delivering for the public good, raising an organisation’s profile and being able to take advantage of new green market opportunities.