Responsible Bodies and Conservation Covenants

A session organised by DEFRA’s Conservation Covenant Policy Team covering topics relating to the current state of play with Responsible Body designations, the delivery of off-site BNG and best practice on how to apply for the designation. This webinar also includes perspectives from RSK Biocensus and Staffordshire Wildlife Trust on becoming and being Responsible Bodies. The recording has been edited slightly due to IT issues, but no substantive content has been lost.

You can find out more about RSK Biocensus's approach here, and for Staffordshire Wildlife Trust here.  

Defra Response 

As the use of conservation covenants is voluntary, it will be for any organisation to decide whether to be involved where they consider there to be an overall financial 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.

A Forum of responsible bodies chaired by Defra includes sharing best practice in relation to managing risk as part of its discussions.

RSK Biocensus Response

A very important question for any business to consider before becoming an RB! From RSK's perspective, the risk of enforcement needs to be reduced from the outset by working collaboratively with landowners and listening to their plans for the land and what flexibility they need. By assessing the HMMP we can understand the likelihood of the habitat thriving, and regular monitoring ensures that any issues are noticed at an early stage. We also assess the business model and financial risk to ensure that the client has sustainable long-term finance. In the situation where there is a breach of covenant, it would always be best to work with the landowner to resolve the issue and use alternative dispute resolution such as mediation or expert determination if necessary. The risk of a case reaching the civil courts is hopefully low, if the relationship between the RB and client is nurtured and maintained. The incentives to become a responsible body could be many things: public interest, environmental and ethical reasons, to help the BNG system work overall, and the financial gain for a business or local authority from the monitoring fees.

Staffordshire Wildlife Trust Response

Yes, SWT would be wanting to ensure that the habitat type and condition are met as an end goal as that is our primary purpose, for nature's recovery and ensuring that the right habitat is put in the right place.

Defra Response

As conservation covenants are private, voluntary agreements between a landowner and a responsible body, both parties, including the responsible body, have the discretion to decide whether or not to enter into any agreement.

RSK Biocensus Response 

I think the opposite is true, as RBs are acting as a regulator. To ensure that natural capital markets succeed, there must be certain standards met. Therefore, if the plans for a proposed habitat are likely to fail, this should be picked up by the RB from the outset. It would be more concerning to see an RB take on every case without scrutiny. We have not yet refused any projects outright as most projects that we have seen have been in the pipeline for some time and are relatively well planned. We have asked clients to go back and make amendments to their plans, and we have asked for more work to be done e.g. soil samples, before we will consider further. I can see the rationale behind this, but we also have a duty of confidentiality to our clients and would not publish sensitive information. Hopefully other RB’s have a similar due diligence process and would identify the same risks we did. We do intend to do a 'lessons learned' thought piece soon which will outline more generally the pitfalls we have seen.

Staffordshire Wildlife Trust Response 

SWT agree, it would be useful to know if other RBs had rejected a particular habitat bank/landowner.

Defra Response 

As more responsible bodies are designated on a rolling basis, and as conservation covenants become more established, there may be the potential for more responsible bodies being open to agreements involving smaller areas and/or individual landowners. However, it is for each responsible body to decide whether or not to enter into any agreement.

RSK Biocensus Response 

Hopefully, it’s a tricky one as the RB has to monitor the site over 30 years and there are associated costs. RSK are willing to enter into conservation covenants for small sites, but generally find that very small sites do not benefit from this due to the monitoring costs. We are looking into new ways of monitoring, e.g. satellite and acoustic monitoring, which may cut the cost of site visits in the future.

Defra Response

As part of the responsible body application process, Defra checks that an organisation’s financial situation is secure and that it has adequate internal fiscal and administrative control for long term financial viability, to carry out the functions of a responsible body and deliver conservation covenants. In addition, Defra checks that an organisation has the capacity and capability to manage and enforce the types of covenants it expects to enter into, including the ability to plan and develop contingency measures for unplanned changes, monitor compliance and take action to address breaches of agreements.

RSK Biocensus Response 

There is a basic element of risk due to the conservation covenant being 30+ years long. RSK assess the risk from the outset in each case, and the higher the risk is deemed (from looking at the company structure, finances and the proposals for the habitat) the more monitoring visits are required. This then increases the cost, so it's in both parties interests to work together from the outset to reduce any risk and lower the costs and the likelihood of enforcement. Due to the length of the covenants, Defra look in the application at the length of time the company has been running, and its track record, to reduce the risk of the RB dissolving in the future.

Staffordshire Wildlife Trust Response

SWT are looking into financial securities to cover any breaches of the Conservation Covenant, making sure our due diligence processes are robust to minimise this and ensuring we have legal counsel.

Defra Response 

Responsible bodies need to have robust due diligence processes in place to address any legal liabilities before any conservation covenant agreement is entered into. Clauses addressing issues such as force majeure or utilities can be included when a conservation agreement is drawn up, ensuring both parties understand their rights and responsibilities. Once the agreement is set up, effective monitoring mechanisms should ensure compliance and promptly identify and address any issues.

RSK Biocensus 

Force Majeure is an interesting one, as the landowner cannot be held in breach of the conservation covenant for circumstances completely outside their control. If something happens to the habitat that is within their control, it is their responsibility to remedy it. In this situation we would work with the landowner to discuss if a new plan is needed or any amendment to the HMMP, and how long any remedial measures would take.

Staffordshire Wildlife Trust 

Utilities will come under due diligence checks. Force majeure is different as this could affect the habitat reaching target condition. 

Defra Response 

The landowner is responsible for carrying out the land management as part of a conservation covenant agreement. The responsible body is responsible for monitoring and ensuring compliance with the agreement. The agreement should set out what will happen if either party does not comply, including any enforcement measures or dispute resolution processes. If the agreed conservation outcomes are not being met, the responsible body may need to take enforcement action, depending on the terms of the agreement.

RSK Biocensus Response 

In our conservation covenant precedent it states that at each monitoring period (which is a minimum of every 5 years) our team will review whether the predicted units still look achievable. If not, there is a process where the landowner must submit a plan for remedial measures for our approval. In this situation, we would work together with the landowner and their team to find a way forward.

Staffordshire Wildlife Trust 

It will always be the responsibility of the landowner to achieve the target condition. The RB does not have a legal obligation to deliver the works to ensure this happens but SWT feel we have a reputational obligation to ensure that the target condition is met so we would work closely with the landowner to ensure this happens, or reaches as close to the target condition as is realistically achievable. It will be part of SWTs due diligence to make sure we are satisfied that the habitat can reach the target condition or to get advice from the local experts where necessary. Through the ongoing monitoring, if we realised the habitat was not progressing towards target condition, SWT would discuss with the landowner and amend the management plan accordingly.

Defra Response 

An LPA can be a responsible body but where the responsible body is not an LPA, an LPA does not have responsibility. The responsible body may take enforcement action if the biodiversity gains in the legal agreement are not maintained. If a responsible body no longer meets the criteria for being a responsible body, then Defra can revoke an organisation's status as responsible body.

RSK Biocensus Response 

It’s the complete responsibility of the RB. The LPA is involved with the planning side: when a developer is seeking planning permission, it must submit a Biodiversity Gain Plan for the approval of the LPA. This will detail its on-site and off-site gains, and any units that will be secured through a concov. As the conservation covenant is between the RB and landowner though, the LPA has no further role in monitoring the BNG site.

Staffordshire Wildlife Trust Response

The LPA won't be involved with SWTs conservation covenant therefore yes, the long-term monitoring of the BNG projects/agreements SWT have will be the sole responsibility of the responsible body.

Defra Response 

No, a conservation covenant is a private, voluntary agreement. It must be registered on the local land charges register and the landowner and responsible body should review relevant local nature recovery strategies and be aware of other relevant local conservation schemes. The LPA will assess and approve the overall planning application from a developer, which will include developments which do have off-site BNG. 

Some LPAs are responsible bodies themselves. However, for those RBs who are not LPAs, they are not obligated to share monitoring data with an LPA, although they may choose to.

RSK Biocensus Response

No, as the LPA is not a party to the agreement and has no enforcement role. The LPA has to approve the biodiversity gain site plan for the developer and will be involved instead in the planning process. / There is no legal requirement to do this. A conservation covenant is a private contract between two individuals, and in itself it is not part of the planning system. You can set up a habitat bank and register your units without approval from the LPA. The LPA is involved at a later state with the developer who is looking to buy units, as the LPA must approve the developer's gain site plan which states how they are securing their on-site and off-site gain. In theory, if the units are correctly registered on the Gain Site Register, the LPA should not question the responsible body or form of the covenant, as this is scrutinised by Natural England when the habitat bank provider applies for the units to be registered.

In terms of sharing monitoring data with the relevant planning authority, this is something we've been considering. Conservation covenants are private agreements and will not all relate to BNG. For BNG though, it would assist LPAs to have information for their reporting, and so far, clients have not pushed back on this idea, but some have asked for confidentiality clauses which state that they are consulted before any sharing of information.

Defra Response 

A responsible body cannot act as both responsible body and landowner in the same conservation covenant agreement. If a responsible body 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.

RSK Biocensus Response 

It’s not possible to enter a conservation covenant for your own land. Each responsible body must also have a conflict check procedure in place, to ensure there is no current or likely conflict of interest with the landowner which could affect the RB's ability or willingness to enforce the covenant. An RB cannot enter into a contract with land that they own. It’s the same for an LPA under a S106, as they cannot enforce against themselves. There are a few ways around this: an LPA could 'buddy up' with a nearby LPA and enter into conservation covenants with each other's land, or there are ways of creating separate entities such as Special Purpose Vehicles to hold the land.

Defra Response 

A responsible body may subcontract out services related to the delivery of their obligations. However, the responsible body would remain liable for ensuring the obligations were complied with. 

RSK Biocensus Response 

We have the expertise in-house. I think Defra want to see you have the skills needed when you apply, but RBs are able to partner with external law firms etc.

Staffordshire Wildlife Trust Response 

I don't think you could sub-contract the actual agreement monitoring as SWT has been assigned the RB status however, you could sub-contract out the ecological monitoring/some of the due diligence checks for example.

Defra Response 

Costs will vary depending on the circumstances. As private, voluntary agreements, any costs relating to a conservation covenant will need to be agreed between the landowner and the responsible body, as parties to the agreement.

Conservation covenant agreements are private, voluntary arrangements between landowners and responsible bodies. The specific terms, including any associated fees, are typically confidential and not publicly disclosed. Both parties to an agreement would need to consent to any details being published.
 
Where a public authority is the responsible body to a conservation covenant agreement, 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. 

Defra has established a Forum for designated responsible bodies, to provide an opportunity for them to agree best practice, share ideas and support each other in the role and delivery of their functions.

In terms of funding options and costs, Funding could come from a range of sources, such as the landowner, the responsible body, a developer in a net gain scenario, an endowment, or income generated by the covenant. 

The specific mechanisms for funding, including whether costs could be covered by homeowner surcharges or rents, would be a matter for the parties involved and may depend on the legal and contractual arrangements in place. Responsible bodies should seek legal advice to ensure any proposed funding model is appropriate and does not conflict with their obligations under the agreement.

RSK Biocensus Response 

We split our costs into 3 stages: the initial due diligence stage (ecological analysis, legal investigation of title and risk), the drafting and registration of the covenant, and the monitoring. The costs are bespoke and depend on the size and complexity of the scheme, the potential risks and therefore the number of monitoring visits required.

The nature of conservation covenants is that they are flexible. They are voluntary private agreements between two individuals and can contain whatever the two parties agree as long as they are for a conservation purpose and for the public good. For this reason, there is no standard set template. Having said that, we have seen that Natural England are reviewing the covenants thoroughly for BNG before accepting units on the register. This ensures that the units are adequately protected and ensures a certain standard and uniformity to the agreements. For conservation covenants for voluntary BNG units or for other purposes, the content of the agreements will vary as they are meant for a wide range of purposes. The fees and agreements are not published, but I agree RBs should assist each other so that standard remain high.

The schemes we have been dealing with so far are mainly BNG-related and are on uninhabited land. We are interested in alternative funding methods though and would consider other proposals as part of our risk assessment process.

Staffordshire Wildlife Trust Response 

Our conservation covenant is an upfront cost to the legal firm as well as the Heads of Terms and the due diligence is an upfront fee to SWT. Further to this we have agreement monitoring costs over the 30-year period. These costs are site specific and risk dependant so are quoted for on a site by site basis.

SWTs RB fees are unpublished currently as they are on a site by site basis, however the conservation covenant will be open source and therefore fees can be seen on approved agreements. Definitely, SWT are working with others and would be happy to share information on financial securities once we have this confirmed.

Defra Response 

A conservation covenant can only be made between a landowner and a responsible body. In principle, however, as conservation covenants are essentially private contracts (subject to the constraints of the Environment Act 2021), there may be other parties who sign a conservation covenant agreement in a different capacity. The role of any third party would need to be made clear by lawyer(s) in the drafting of the conservation covenant agreement. Defra cannot comment on how a particular agreement should be structured. Both responsible bodies and landowners should consider seeking independent legal advice before entering into a conservation covenant agreement.

RSK Biocensus Response 

It can be between more than one party. The landowner has to be party to the agreement, but there can be more than one landowner. In some situations, an RB might insist on the freeholder being a party as well as the leaseholder. There is some legal dispute about whether a third-party contractor or land manager can be party to the agreement as well. My thoughts are that the conservation covenant could include details of the third party and their role, but for the conservation covenant to effectively 'run with the land' as a local land charge and bind subsequent owners, then all the obligations in the covenant must be for the landowner.

Defra Response 

An organisation cannot act as both responsible body and landowner in the same conservation covenant agreement. If an organisation 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, if successfully designated, it can enter into an agreement as a responsible body with a separate landowner.
 
It is up responsible bodies and landowners to structure the arrangements of a conservation covenant agreement in a way which is appropriate for them both. Information on the roles and responsibilities of responsible bodies and landowners is set out in the conservation covenant guidance. Defra cannot comment on what approach should be used for particular circumstances or what solutions may be available. Both responsible bodies and landowners should consider seeking independent legal advice before entering into any conservation covenant agreement.

RSK Biocensus Response 

I think that if the freeholder has granted a lease to the tenant, the freeholder cannot also be the responsible body if the tenant has signed the conservation covenant. Defra have not given guidance on conflict of interests, but from a legal perspective you want to avoid any situation where you may have current competing interests or could anticipate them in the future. 

In this example, the landlord as the RB may have reasons for not wanting to take action to enforce the covenant, if they want to keep the tenant paying the rent. This would conflict with their duties as an RB. We have seen leases being granted on the land for the tenant to create and sell the BNG units though and pay rent to the landowner. Many consultants are using this model, to avoid the need to buy the land, and then use a third-party RB.

Defra Response 

As of August 2025, there have been 5 applications that did not meet the published criteria to become a responsible body at the time of applying. However, applicants may submit another application if new supporting evidence becomes available.

There is not a published list of unsuccessful responsible body applications. Defra needs to ensure that third parties are not discouraged from providing information for fear that it will be disclosed.

Disclosure of information may also potentially compromise and weaken the ability of any organisation applying to become a responsible body to then participate competitively in future commercial activity, as competitors could use information to create an unfair advantage.