Since Biodiversity Net Gain (BNG) became a legal requirement for most planning applications, the comparative benefits of using a Conservation Covenant or a Section 106 Agreement (s106 Agreement) for securing off-site BNG has been an issue. Some of the key differences are below.

Planning obligations

• Allow for positive obligations (to carry out/ maintain works or pay money) as well as restrictions
• Commonly used to secure financial contributions, that generally cannot be imposed by a condition
• Not needed if a planning condition can do the job* - i.e. on-site BNG delivery
• May still be necessary for onsite BNG delivery – e.g. securing a contribution to monitoring the maintenance of the BNG scheme for the required 30-year period
• Useful for securing offsite BNG / Habitat Bank units
• Must be necessary, directly related to the development, and fair and reasonable in scale if being used in determining a planning application¹. Using a s106 Agreement may limit the Local Planning Authority (LPA) in the amount of contribution that can be requested, particularly if the contribution is excessive and unjustifiable.

* Our template planning conditions for the Planning Advisory Service² show how far conditions can be used when dealing with onsite BNG provision, to avoid unnecessary use of planning obligations.

Conservation Covenants

• Similar to a s106 Agreement in being legally binding, perpetual, and binding on future owners
• Not governed by the Regulation 122 regime
• Can be used to secure offsite BNG / Habitat Bank units
• No need to be entered into with (or be given for the benefit of) a LPA – any of the Responsible Bodies³ can be used
• Can be used by local authorities (as landowners) to secure off-site BNG or for habitat banking with another responsible body. This is particularly helpful when an authority cannot enter into a s106 Agreement with itself (as both enforcing planning authority and landowner)
• Potentially quicker for securing off-site BNG compared to a s106 Agreement. However, an LPA may prefer to use a s106 Agreement if the BNG requirement is tied to a planning permission and there are also other planning obligations which the LPA wish to impose to mitigate the impact of the development
• Securing off-site BNG / Habitat Bank units.

While s106 Agreements are deeply integrated into the planning process, offering a structured and familiar approach to securing financial contributions and fulfilling complex planning obligations, Conservation Covenants provide flexibility and can be used for non-planning elements such as management of rare habitats or woodlands or for imposing restrictions such as the use of pesticides in habitat areas.

Choosing the appropriate mechanism to secure the 30-year maintenance of a BNG site, depends on the specific needs and circumstances of a project, including its scale, legal requirements, parties involved and desired outcomes.

1. Must comply with Regulation 122 of the Community Infrastructure Levy Regulations 2010↩
2. https://www.local.gov.uk/pas/environment/biodiversity-net-gain-bng-local-planning-authorities/pas-biodiversity-net-gain-bng↩
3. https://www.gov.uk/government/publications/conservation-covenant-agreements-designated-responsible-bodies/conservation-covenants-list-of-designated-responsible-bodies↩