Conservation covenants: What is a ‘Responsible Body’?

From 30 September 2022, landowners will be able to enter into conservation covenants, committing them to manage their land for conservation purposes over the long term – for more details see Conservation covenants: The basics.

Responsible bodies are the essential counterparty to the landowner or covenantor in a conservation covenant. But who will fulfil the role of a Responsible Body?

We now focus on the role of Responsible Bodies and consider how they are selected, the process for appointment and what happens if they cease to exist.

What is their role?

The Responsible Body will ensure that the objectives of the conservation covenant are secured and delivered. They will be under a duty to monitor compliance and enforce any breaches as necessary.

The level of monitoring required could vary significantly, depending on the duration of the covenant, the terms of the individual agreement, its underlying objectives and the type of habitat etc.

Responsible Bodies must lodge an annual return with the Secretary of State[1] confirming:

• if they held any conservation covenants during the reporting period;
• the number of covenants they held; and
• the area(s) of land to which they relate.

The Secretary of State has power to require further information to be included in annual returns, via secondary legislation, if needed. No such legislation has been tabled to date and it is not anticipated that it will be necessary to do so in the short term. Given the longevity of these arrangements, flexibility has been built into the legislation in case it proves necessary to obtain additional information in future. 

Who can be a Responsible Body?

Responsible bodies will be formally designated by the Secretary of State under section 119 of the Environment Act 2021. 

Organisations will need to apply to be designated. They are likely to be Local Authorities, other public bodies, conservation charities and conservation organisations.

It is for the applicant organisation to decide whether they have the capacity to perform the function of a responsible body.

Local Authorities applying to be responsible bodies will need to satisfy the Secretary of State that they are suitable to be a responsible body: s119(2) and (3). 

Other bodies will, additionally, have to satisfy the Secretary of State that at least some of their main purposes, functions or activities relate to conservation[2].

Who selects a Responsible Body?

The Secretary of State has overall responsibility:

a) to determine if an applicant body is eligible to be a Responsible Body in accordance with the requirements of section 119;

b) to publish and maintain a list of designated Responsible Bodies;

c) to revoke a designation, either on the application of the Responsible Body itself, or if the Secretary of State is satisfied that the body no longer meets the relevant s119 criteria.

The Secretary of State has power to determine the criteria to be applied in deciding whether a body is suitable to be or remain a responsible body[3] and to publish those criteria.[4]

Applications must then be assessed by reference to these criteria. No further details have been released to date, so it remains to be confirmed whether further qualifying requirements will be imposed, in addition to those found within s119 itself.

It also remains unclear exactly how the process will be managed. We hope that the necessary secondly legislation will be come into force imminently.

Who will decide which responsible body is designated to specific sites / conservation covenants?

Site acceptance and designation is likely to be a matter for individual organisations once they have been designated as a Responsible Body under s119.

They will decide whether they are willing to take on a particular site and to be the counterparty to a conservation covenant.

Likewise, landowners/covenantors will require confidence in any potential Responsible Body and their credibility. In addition to their expertise in the sector, a key issue is likely to be their financial standing and ability to fulfil their obligations for the duration of the conservation covenant. 

What organisations are likely to be Responsible Bodies?

Apart from Local Authorities, responsible bodies are likely to have close links to and experience in conservation and wildlife work. 

We hope they will be organisations that care passionately about biodiversity, conservation and the natural environment and that are skilled at delivering those objectives. 

Initially we expect Local Authorities to form the significant bulk of responsible body designations, given that conservation covenants provide an efficient legal mechanism for delivering and securing habitat sites necessary for complying with the BNG requirements for development in England.

What if a responsible body ceases to exist or loses its designation?

If a responsible body ceases to be a designated body, it will automatically cease to be the responsible body under any conservation covenant to which it is a party. This will occur if the responsible body loses or withdraws its designation, or otherwise fails or ceases to exist.

The legislation makes provision[5] for the Secretary of State to step in as an interim replacement/custodian, until the Secretary of State appoints a replacement[6], or elects to be the replacement responsible body itself. This is likely to be an option of last resort.

The benefit and burden of the obligations under the conservation covenant will transfer to the Secretary of State, but only in terms of future performance; existing breaches will not transfer.

Whilst it is custodian, the Secretary of State can enforce the obligations of the landowner and exercise any powers conferred on the responsible body under the terms of the specific conservation covenant. However, they will have no liability to perform any obligations imposed on the responsible body under the covenant.

Can a Responsible Body appoint a replacement?

Section 131 enables responsible bodies to appoint a replacement, and to do so unilaterally, unless the terms of the covenant prohibits this.

Accordingly, if a landowner wants to have input into this process, the covenant agreement needs to contain appropriate contractual provisions.

If an appropriate replacement responsible body is identified:

• the transfer of obligations must be effected via a formal deed between the outgoing and incoming party.
• an application must be lodged to amend the land charges register entry for the underlying covenant. The transfer will only have effect once the register entry has been amended.
• The incoming responsible body will take on the benefit and burden of the obligations under the conservation covenant but will not acquire liability in respect of any existing breaches of obligations. The transfer only has effect in relation to future performance.

Conclusion

At the point of writing, some of the key practical details about the process of selecting and confirming Responsible Bodies is awaited, despite the imminent 30 September 2022 implementation date. 

As noted above, LPAs may well be the most suitable organisation in many cases, but we are not aware that additional funding will be allocated for this purpose, so quite how they will fulfil the role remains to be seen.

In time, we are likely to see all sorts of other bodies applying – for example environmental charities and organisations and even private trusts and other entities focused on the preservation and maintenance of historic buildings and environmentally vulnerable sites. The challenge will be ensuring that applicant Responsible Bodies are truly suitable, have sufficient financial standing and are not politically motivated or too connected to the development of land.

For more information, please contact Josie Edwards.