Conservation Covenant vs Section 106: Securing Biodiversity Net Gain
Delivering biodiversity net gain (BNG) is now a legal requirement in England, and every developer must prove that new schemes achieve at least a 10% uplift in ecological value. A central question is whether to secure commitments through a conservation covenant vs Section 106 agreement. Both mechanisms provide the legal security for 30 years required by the biodiversity net gain regulations, but each works differently.
At ACP Consultants, we are not lawyers we do not draft legal agreements. Our role is to provide consultancy support so you understand how conservation covenants and Section 106 agreements fit within your biodiversity strategy, how they interact with your Biodiversity Gain Plan, and how to coordinate with responsible bodies and local planning authorities (LPAs).
You can also drop us an email at hello@acp-consultants.com and we’ll get back to you within 24 hours to help with your inquiry!
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Why Biodiversity Net Gain Needs Long-Term Legal Security
BNG is not short-term. To be valid, biodiversity commitments are usually need to be maintained for a minimum of 30 years. This legal security gives confidence to regulators, communities, and developers that promised habitats will not disappear after construction finishes. Without legally binding mechanisms, restored grassland could be converted back to agricultural land, woodland cleared, or wetland drained. That would undermine the principle of sustainable development and reduce the community benefits of BNG.
This is why local authorities require either a Section 106 planning obligation or a conservation covenant with a responsible body such as Natural England or a local authority. These agreements are based on recognised templates and consistent legal frameworks, ensuring that habitats are delivered and monitored for the full term.
ACP Consultants helps developers by embedding these requirements into their development planning, aligning them with environmental impact assessments, and ensuring obligations are visible in Habitat Management & Monitoring Plans (HMMPs).
Section 106 Agreements Explained
Section 106 agreements play a central role in ensuring that development contributes positively to the environment and local communities. As biodiversity net gain (BNG) becomes a mandatory part of the planning system, these legal agreements are now one of the main tools used to secure and enforce ecological improvements alongside new development. Understanding how Section 106 operates, from its purpose and legal basis to its costs and practical implications, is essential for developers, planners, and landowners seeking to achieve compliance and long-term sustainability.
Section 106 Agreement Meaning
A Section 106 agreement (S106) is a planning obligation made under the Town and Country Planning Act 1990. It is a legal mechanism used by local authorities to make a development acceptable in planning terms. Historically, Section 106 agreements were associated with affordable housing contributions, highways improvements, or community infrastructure. Today, they are increasingly applied to secure biodiversity net gain (BNG).
By tying commitments directly to a planning permission, S106 agreements ensure that developers deliver not only buildings but also the environmental and community benefits required for sustainable development. For biodiversity, this often includes the delivery of on-site habitats, contributions to off-site biodiversity units, or funding for long-term habitat management
Section 106 Regulations
The use of Section 106 is governed by statutory Section 106 regulations, which set out three key legal tests:
- Obligations must be necessary to make the development acceptable in planning terms.
- Obligations must be directly related to the development itself.
- Obligations must be fair and proportionate in scale and kind.
These safeguards mean that developers are not burdened with unreasonable conditions, and that planning authorities can only request measures that genuinely mitigate a scheme’s impacts. The regulations also embed accountability and transparency into the planning system, aligning biodiversity net gain with wider planning regulations and development planning frameworks.
Section 106 Costs
There are costs associated with Section 106 agreements. Developers typically face:
- Legal drafting costs, as agreements must be formally prepared and checked by the local authority’s solicitors.
- Monitoring fees, which cover the council’s responsibility to check that obligations are delivered correctly.
- Long-term management contributions, particularly where habitat maintenance is involved, to secure ecological outcomes for 30 years.
The precise Section 106 costs will vary between authorities and projects, but they should always be proportionate under the regulations. For developers, factoring these costs into budgets is an essential part of effective property development and urban planning.
S106 Heads of Terms
Before the full agreement is signed, S106 heads of terms are drafted. These documents outline the key responsibilities and expectations, setting out:
- The number and type of biodiversity units required.
- How those units will be delivered (on-site, off-site, or through habitat banks).
- The triggers for delivery and monitoring schedules.
Heads of terms allow for early stakeholder engagement between the developer, local planning authority, and sometimes the wider community. By clarifying obligations upfront, they reduce delays later in the planning process and help ensure developments provide meaningful public interest outcomes.
Where Can I Get a Copy of a Section 106 Agreement?
Once signed, Section 106 agreements are public documents. Copies can usually be found on the local planning authority’s planning portal, often attached to the planning decision notice. They may also be requested directly from the council. Reviewing these examples gives developers valuable insight into what is expected in their area, how obligations are structured, and how biodiversity commitments have been secured elsewhere.For developers, S106 agreements are not optional extras but integral to delivering sustainable development. By embedding biodiversity into binding planning obligations, S106 agreements align ecological goals with planning regulations, ensuring that growth and environmental protection move forward together.
Why Section 106 Matters for Biodiversity Net Gain
S106 agreements remain one of the most established legal tools in the English planning system. They provide planning authorities with confidence that commitments will be delivered, and they give communities assurance that biodiversity enhancement, infrastructure, or social value will materialise as part of new development.
For developers, S106 agreements are not optional extras but integral to delivering sustainable development. By embedding biodiversity into binding planning obligations, S106 agreements align ecological goals with planning regulations, ensuring that growth and environmental protection move forward together.
For developers, S106 agreements are not optional extras but integral to delivering sustainable development. By embedding biodiversity into binding planning obligations, S106 agreements align ecological goals with planning regulations, ensuring that growth and environmental protection move forward together.
Conservation Covenants Explained
Conservation covenants are an increasingly important mechanism for delivering long-term biodiversity net gain (BNG) and environmental protection. Introduced through the Environment Act 2021, they enable landowners and developers to formalise habitat creation, enhancement, or management obligations that extend beyond the life of a single planning permission. By combining legal certainty with flexibility, conservation covenants provide a practical route to securing lasting ecological outcomes, whether through on-site enhancement, off-site biodiversity units, or habitat banking initiatives.
What is a Conservation Covenant?
A conservation covenant is a voluntary but legally binding agreement between a landowner and a responsible body, introduced under the Environment Act 2021. Much like a Section 106 agreement, it provides legal security for 30 years, ensuring that biodiversity net gain commitments are upheld long after a development is complete.
The main distinction, and the heart of the conservation covenant vs S106 debate, is that covenants are not tied directly to planning consent. Instead, they attach to the land itself. This makes them highly flexible, allowing developers and landowners to secure biodiversity gains even where a planning application is not involved.
PAS Conservation Covenants
To help responsible bodies apply these agreements consistently, the PAS conservation covenants guidance sets out model wording and practical templates. These templates are designed to reduce cost, avoid disputes, and ensure obligations are enforceable under recognised legal frameworks.
By following PAS guidance, landowners and developers can be confident that conservation covenants support wider sustainable development objectives, deliver measurable community benefits, and align with national planning regulations.
Conservation Agreement
Each covenant is underpinned by a conservation agreement. This formal document specifies the exact obligations for the land, which might include woodland creation, restoration of species-rich grassland, or long-term land conservation of private estates.
A crucial feature is permanence: once signed, the agreement binds the land itself. That means obligations remain enforceable regardless of ownership changes, ensuring lasting environmental protection and biodiversity enhancement.
Conservation Easements and Habitat Preservation
Conservation covenants have close parallels with conservation easements used internationally, particularly in North America and Australia. Both mechanisms are designed to secure habitat preservation and restrict damaging land uses.
By embedding obligations into the title of the land, covenants guarantee that restored habitats, wetlands, or wildlife corridors cannot be altered during the term of the agreement. This makes them a powerful tool for reducing the ecological footprint of new development and delivering meaningful gains for nature.
Flexibility and Practical Use
Unlike Section 106 obligations, conservation covenants can be applied more flexibly. They are particularly valuable for:
- Agricultural land, where farmers want to secure biodiversity units for developers while still using parts of their land productively.
- Off-site areas, where developers purchase units away from the project boundary.
- Habitat banks, where units are generated for multiple schemes.
Because they are not tied to specific planning applications, conservation covenants can unlock opportunities beyond the limits of urban planning or property development projects. They provide an adaptable way to secure biodiversity net gain while contributing to public interest, community benefits, and broader goals of environmental protection and sustainable development.
In the past year, we’ve delivered over 750 audit-ready reports supporting 400+ projects for developers, planners, and architects nationwide. We put quality over quantity and build lasting relationships based on trust, ensuring your planning applications are backed by robust evidence and delivered on time.
You can also drop us an email at hello@acp-consultants.com and we’ll get back to you within 24 hours to help with your inquiry!
Conservation Covenant vs S106 Example
A Practical Scenario
When deciding between a conservation covenant vs S106 agreement, the context of the development is critical. Imagine a mixed-use housing and retail development on the edge of a market town:
- Using a Section 106 agreement: The local planning authority requires the developer to create a new wetland and fund its management for 30 years. The obligation is written into the planning consent through an S106. The S106 heads of terms are prepared early, and the Section 106 costs include legal drafting and monitoring fees. Because obligations must meet the statutory Section 106 regulations, the LPA can demonstrate that the agreement is necessary, proportionate, and in the public interest.
- Using a conservation covenant: A neighbouring farmer agrees with Natural England, as a responsible body, to restore 40 hectares of species-rich grassland. This conservation agreement is not tied to the planning consent but provides legal security for 30 years. The covenant binds the land itself, ensuring obligations continue even if ownership changes. This flexibility supports sustainable development goals by delivering biodiversity gains beyond the project boundary.
Both approaches secure biodiversity net gain, but the choice affects costs, timescales, and enforcement.
Comparative Overview
Feature | Section 106 Agreement | Conservation Covenant |
Legal frameworks | Planning obligation under Town & Country Planning Act 1990 | Environment Act 2021 |
Parties | Developer + Local Planning Authority | Landowner + Responsible Body |
Duration | 30 years minimum | 30 years minimum |
Enforcement | Local planning authority | Responsible body |
Costs | Section 106 costs: legal drafting, monitoring fees, land management contributions | Variable; may be cheaper, guided by PAS templates |
Use cases | Larger property development or complex urban planning projects | Flexible for agricultural land, habitat banks, or off-site units |
Drafting | S106 heads of terms prepared early in planning process | Conservation agreement set by landowner and responsible body |
Example | Housing scheme wetlands secured under planning consent | Grassland restoration covenant for off-site biodiversity units |
Implications for Developers
- S106 agreements are better understood by planning officers. They integrate directly with development planning, zoning decisions, and planning regulations, making them predictable for large-scale projects.
- Conservation covenants offer flexibility, particularly for securing biodiversity on agricultural land or for projects spread across multiple ownerships. They are useful where planning obligations under Section 106 would be too rigid or slow.
Both mechanisms can be aligned with environmental impact assessments. For instance, if a project’s EIA identifies unavoidable impacts on habitats, either an S106 or covenant can be used to secure compensatory biodiversity enhancement.
Wider Benefits and Challenges
Choosing the right mechanism depends not only on cost but also on wider policy goals:
- Public interest and community benefits: Both tools ensure that nature recovery is delivered in ways that benefit local communities. Wetlands secured through S106 may double as public open space; covenants on farmland may improve flood resilience and carbon sequestration.
- Stakeholder engagement: S106 agreements often involve negotiation with planners, councillors, and community representatives. Conservation covenants require collaboration with landowners and responsible bodies, sometimes opening opportunities for local charities and NGOs.
- Sustainable development and environmental protection: Both mechanisms support habitat preservation and biodiversity enhancement, aligning development with climate resilience and ecological footprint reduction targets.
- Legal certainty: S106 agreements are backed by established case law, while covenants are newer but supported by modern legal frameworks.
Conservation Covenant vs S106 Example in Practice
A new solar farm illustrates how these tools work side by side:
- The S106 agreement, meaning here, is to bind the developer to provide hedgerow planting and ecological corridors across the site. Obligations are proportionate under Section 106 regulations and tied to planning consent.
- A conservation covenant secures habitat enhancement on nearby agricultural land, where a responsible body oversees delivery. This delivers biodiversity units in addition to the on-site works, supporting land conservation and wider sustainable development.
Together, they provide examples of BNG for planning, showing that in practice the conservation covenant vs S106 question is not always “either/or” but can often be “both/and.”
How ACP Consultants Support Developers
ACP provides consultancy support to help developers navigate conservation covenants and S106 agreements. We:
- Review your biodiversity net gain report.
- Advise which agreement may be most suitable.
- Liaise with LPAs and responsible bodies.
- Work alongside your appointed legal advisors.
- Ensure obligations are embedded in environmental impact assessments and planning submissions.
This joined-up approach reduces delays, strengthens stakeholder engagement, and ensures compliance.
Benefits of Securing Biodiversity Net Gain with the Right Agreement
Choosing the right tool conservation covenant vs S106 provides multiple benefits:
- Planning certainty: authorities gain confidence in your proposals.
- Environmental protection: long-term habitat preservation and biodiversity enhancement.
- Sustainable development: aligned with planning regulations and public interest.
- Community benefits: local green space, ecosystem services, health and wellbeing improvements.
- Reduced ecological footprint: offsets unavoidable development impacts.
Frequently Asked Questions: Conservation Covenant vs S106
Choosing between a conservation covenant vs S106 agreement can be confusing for developers, landowners, and planners. Below, we answer the most common questions raised in planning consultations, from the Section 106 agreement meaning and typical Section 106 costs, to how a conservation agreement works in practice. These FAQs also cover PAS conservation covenants, S106 heads of terms, and the 30-year legal security required under the biodiversity net gain regulations. Each answer is designed to give clear, practical insight so you can approach planning obligations, legal frameworks, and sustainable development with confidence.
What is the difference between a conservation covenant and a Section 106 agreement?
The central question of conservation covenant vs S106 comes down to how each agreement operates. A Section 106 agreement (or S106) is a planning obligation tied directly to a planning consent under the Town and Country Planning Act 1990. It ensures that biodiversity units or habitat works form part of the planning approval. By contrast, a conservation covenant is a voluntary agreement between a landowner and a responsible body such as Natural England. It is not tied to a specific development but attaches to the land itself, providing legal security for 30 years.
What is PAS conservation covenants guidance?
The PAS conservation covenants guidance is a government-endorsed framework that provides templates, examples, and model clauses. It helps landowners and responsible bodies apply covenants consistently across England. By following PAS guidance, developers can be confident that their obligations align with recognised legal frameworks, support sustainable development, and deliver measurable community benefits.
What is a conservation agreement?
A conservation agreement is the formal document underpinning a conservation covenant. It specifies the obligations on the land, such as woodland creation, species-rich grassland restoration, or land conservation on private estates. Once signed, the agreement binds the land, not just the current owner. This permanence ensures habitat preservation, biodiversity enhancement, and environmental protection even if the land is sold or repurposed.
Where can I get a copy of a Section 106 agreement?
Most signed agreements are available on local planning authority portals as part of published planning decisions. Reviewing them can help developers understand the Section 106 agreement meaning, the kind of obligations commonly imposed, and the typical Section 106 costs. Developers should also look at S106 heads of terms, which outline obligations before an agreement is finalised. These documents show how S106 agreements secure biodiversity units as part of development planning and urban planning frameworks.
What does Section 106 agreement meaning cover?
The Section 106 agreement meaning is straightforward: it is a legally binding planning obligation that ensures a development provides necessary mitigation or benefits. For biodiversity net gain, it may require on-site habitat creation, contributions to off-site biodiversity units, or long-term monitoring. Section 106 agreements give planning authorities the confidence that developments comply with planning regulations, deliver in the public interest, and contribute to sustainable development.
What are Section 106 costs?
Section 106 costs typically cover:
- Drafting by the council’s legal team.
- Monitoring fees for long-term compliance.
- Contributions for habitat management over 30 years.
These costs vary but must always remain proportionate under Section 106 regulations. Factoring in these costs is vital for property development budgets and ensures there are no surprises later in the development planning process.
What are S106 heads of terms?
S106 heads of terms are draft clauses prepared early in the planning process. They set out the structure of the agreement, including:
- The number of biodiversity units required.
- Triggers for delivery.
- Monitoring arrangements.
Heads of terms help with stakeholder engagement by making obligations transparent for developers, planners, and communities. They reduce risk and delays, helping projects meet both planning obligations and community benefits expectations.
What do Section 106 regulations require?
Section 106 regulations impose three tests: obligations must be necessary, directly related to the development, and proportionate. This prevents misuse of the system and ensures obligations align with broader planning regulations. For biodiversity net gain, regulations guarantee that commitments deliver real habitat preservation, improve the ecological footprint of development, and support wider environmental protection goals.
Why do biodiversity net gain agreements need 30-year legal security?
BNG agreements must be secured for at least 30 years to provide certainty for future generations. Whether through a conservation covenant or a Section 106 agreement, this long-term legal security ensures that habitats are maintained, monitored, and enforced. It also aligns biodiversity commitments with sustainable development policies, zoning laws, and long-term development planning frameworks.
Who are responsible bodies for conservation covenants?
Responsible bodies are organisations approved to oversee conservation covenants. They include Natural England, local authorities, and accredited NGOs. Their role is to enforce obligations, monitor delivery, and ensure that covenants provide real public interest and community benefits. By acting as guarantors, responsible bodies give developers and landowners the confidence that obligations are enforceable under recognised legal frameworks.
Government Guidance and Statutory References
- Guidance: Getting and using a conservation covenant agreement. Defra.
- Conservation covenants: a new tool to support nature recovery. Environment Agency.
- What is a Conservation Covenant? Plantlife.
- Guidance: Planning obligations. Ministry of Housing, Communities and Local Government.
- What are Section 106 (s106) agreements? Planning Portal.
- Section 106 agreements and other planning obligations. London Borough of Merton.
- What is a Section 106 legal agreement? Tendring District Council.
- S106 and planning obligations. Waverley Borough Council.
- Section 106 agreements. South Oxfordshire District Council.
- Section 106 agreements. Chichester District Council.
- Legal agreements (S106). Runnymede Borough Council.
- Section 106s.Maidstone Borough Council.
Government Guidance and Statutory References
- Guidance: Enter a legal agreement for biodiversity net gain. Defra.
- Conservation covenants: putting environmental commitments into law. Defra.
- Guidance: Make off-site biodiversity gains as a developer. Defra.
- Securing off-site Biodiversity Net Gain: Expert legal perspectives. Natural England.
- Understanding biodiversity net gain. Guidance on what BNG is and how it affects land managers, developers and local planning authorities. Defra.
- Statutory framework & planning condition – Biodiversity Net Gain under Schedule 7A of the Town and Country Planning Act 1990; statutory regime explained in Planning Practice Guidance (GOV.UK).
- Biodiversity Gain Plan – Must be approved before commencement; Local Planning Authority decision normally within 8 weeks. See Biodiversity Net Gain Guidance (GOV.UK).
- Statutory biodiversity metric – How units are calculated, modules, factors, and guidance on early use. Statutory Metric and User Guide (GOV.UK).
- Condition Sheets & Small Sites Metric (SSM) – Official metric tools and guidance sheets. BNG Metric Tools (GOV.UK).
- Exemptions & de minimis thresholds – Householder, small self-build, and very small impacts where no priority habitat is affected. Exemptions Guidance (GOV.UK) and Defra Environment Blog.
- Off-site register & fee – Natural England guidance on registering biodiversity gain sites, with the current £639 registration fee. Register a Biodiversity Gain Site (GOV.UK).
- Creating a Habitat Management & Monitoring Plan (HMMP) – GOV.UK guidance on how to prepare HMMPs, including monitoring and reporting requirements. HMMP Guidance (GOV.UK).
Other Supporting References (Quick Links)
- BNG in Practice Report (2025) – Case studies showing how BNG is being delivered in real projects. Institute of Environmental Sciences.
- Biodiversity Net Gain – Principles and Guidance for UK Construction and Developments. Chartered Institute of Ecology and Environmental Management.
- BNG Research Briefing – This post note outlines the mandatory biodiversity net gain policy introduced in England in 2024 and the risks and challenges for delivering its objectives. UK Parliament.
- Biodiversity net gain: where to start. Natural England.
- Biodiversity Net Gain Report and Audit Templates- CIEEM.
- Implementing statutory biodiversity net gain. NAO.
- Mandatory Biodiversity Net Gain in England. A Guide by CIEEM.
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Next Steps: Secure Your Biodiversity Net Gain with ACP
Whether your project requires a conservation covenant vs S106 agreement, ACP Consultants provides the expertise to embed these obligations into your planning strategy. We work with developers, landowners, and responsible bodies to ensure agreements are clear, enforceable, and aligned with biodiversity net gain regulations.
Explore Related Biodiversity Net Gain Resources
Conservation Covenants and Section 106 Agreements are the legal tools that secure long-term Biodiversity Net Gain (BNG) commitments. To understand how they fit within the wider BNG process, start with our Biodiversity Net Gain Overview and BNG Legislation & Guidance explaining statutory requirements under the Environment Act 2021.
Before drafting legal agreements, calculate baseline and post-development habitat values using the Statutory Biodiversity Metric 4.0 or Small Sites Metric (SSM), and record results within your Biodiversity Gain Plan (BGP) and Habitat Management and Monitoring Plan (HMMP).
Developers can also review our guidance on Registering a Gain Site and Off-Site Biodiversity Units to see how agreements support long-term delivery. For budgeting and implementation, visit BNG Costs & Pricing and BNG Monitoring Fee Calculator, or download supporting templates from BNG Templates & Downloads.
You can also drop us an email at hello@acp-consultants.com and we’ll get back to you within 24 hours to help with your inquiry!
- Last Updated:
- October 2025
Disclaimer: Our content is prepared by ACP Consultants’ in-house specialists and is based on current guidance, standards, and best practice in environmental consultancy. While we make every effort to keep information accurate and up to date, it is provided for general guidance only and should not be relied upon as a substitute for professional advice on specific projects. Planning authorities retain final decision-making powers, and requirements may vary between local authorities and over time. ACP Consultants accepts no liability for any loss arising from reliance on this content without obtaining tailored advice for your project.