Legal update
and charities with relevant expertise in the aspect of conservation with which the covenant is concerned. Conservation covenants mandate the
conservation of the natural environment and heritage assets for the public good on land, and, like section 106 agreements, the benefit and the burden of the agreements will run with the land, binding future landowners. This ensures that the conservation objective can be maintained in the long term. In the case of conservation covenants relating to biodiversity net gain, a conservation covenant must last for at least 30 years, and its presence on the local land charges register means that it will still be enforceable even after the original owner has sold the land.
A silver lining?
From the 2018 plan for the environment to the first statutory environmental improvement plan, the changes brought about by the Environment Act are significant – so significant indeed that the current government seems to be running scared of them, as it approaches its reckoning with the electorate after some especially turbulent years.
The way those changes are going to play out in the months and years ahead is very unpredictable. Not only is the legislation new and in the process of being rolled out, but the government’s position on environmental matters can itself be said to be in flux – the ongoing uncertainty about biodiversity net gain is mirrored by the recent botched attempt to exempt developers from the nutrient neutrality requirement flowing from the Habitats Directive. The ambition and scope of the Environment Act 2021 introduce a tough new regime for developers, who may be encouraged, as a result, to design-in more biodiversity enhancing measures into their development proposals than was previously the case. The importance of scoping a development site to take account of the need for biodiversity net gain improvement is going to be particularly important for any medium- or large-scale development, such as that of a care home. If there is a silver lining to that cloud, it is the opportunities offered by conservation covenants as a means of giving off-site provision for your own development, or for marketing as a separate income stream for purchase/optioning by other developers. n
Disclaimer The above article is not intended as legal advice and cannot be relied upon as such.
Oliver Bussell
Oliver Bussell is a Partner at CooperBurnett LLP in Tunbridge Wells, specialising in commercial property and development. He has almost 20 years’ experience in planning and related areas of public law.
November 2023
www.thecarehomeenvironment.com
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