Section 106 or conservation covenant, and how thirty years gets secured

Buying biodiversity units is not buying a promise. The habitat behind them has to be secured, in law, for at least thirty years, and the paperwork that does the securing is what makes a unit a unit rather than an intention.

There are two instruments. Both are accepted, and a habitat bank will be using one or the other.

Section 106 agreement

A planning obligation under section 106 of the Town and Country Planning Act 1990, entered into between the landowner and the local planning authority.

It is the older and more familiar route. Planning authorities know how to draft, monitor and enforce them, because they have been doing it for decades on everything from affordable housing to highway works. The obligation binds the land, not the owner, so it survives the site being sold.

The enforcing body is the local planning authority. If the habitat management plan is not being followed, that is who acts.

Conservation covenant

A newer instrument, created by the Environment Act 2021. It is a private agreement between the landowner and a responsible body, an organisation designated for the purpose by the Secretary of State. Local authorities, conservation charities and some private organisations hold that designation.

Like a section 106 obligation, a conservation covenant binds successors in title, so selling the farm does not release the commitment.

The practical differences are administrative. A covenant does not need the local planning authority’s drafting capacity, which in some areas is the thing that determines how quickly a bank can come forward. Its enforcement sits with the responsible body, which exists to do that job instead of fitting it around a planning workload.

What it means for you as a buyer

Honestly: less than you might expect. Both instruments are recognised by the statutory framework, both last at least thirty years, both bind the land, and both put the obligation on the habitat bank rather than on your development. Your local planning authority will not prefer one over the other when it approves your biodiversity gain plan.

The questions worth asking a seller are further down:

• Is the site on the biodiversity gain sites register? Off-site gain has to be registered before it can be allocated to a development. Unregistered land with good intentions is not yet a source of units.
• Who is the responsible body, or which authority holds the agreement? A named answer is a healthy sign.
• Is there a habitat management and monitoring plan, and who is doing the monitoring? Thirty years of management is a real cost that someone has to be funding.
• What happens if the habitat underperforms? The answer should not be “we come back to you”. It should sit with the bank and its operator.

The part that is easy to miss

Once units are allocated to your development and the gain plan is approved, the thirty-year obligation is not yours. It sits with the landowner and the bank operator, enforced by the authority or the responsible body under the instrument they signed. That transfer of a three-decade liability off your balance sheet is most of the reason off-site units exist at all.

If you want to see how a particular site is secured before you commit, ask us. It is a reasonable question and there is a documented answer for every site we sell from.