Climate clause

Conservation Covenant for Soil Preservation and Enhancement

Orli's Clause

A conservation covenant between a landowner or leaseholder and a ‘Responsible Body’ to secure the long-term preservation and enhancement of soil on privately owned, non-agricultural land.

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Why use this?

UK soils store over 10 billion tonnes of carbon in the form of organic matter, which equates to around 80 years of annual GHG emissions. Preventing emissions from soil and preserving and enhancing existing stores of soil carbon will help to meet the UK’s emission reduction targets.

Soil management is also significant in the context of increasingly extreme weather events predicted to result from climate change in the UK, including defence against flood and drought. In addition, the covenant facilitates Scope 3 emissions reductions by prohibiting the use of chemical fertilisers, intensive agricultural practices and associated land-use change, including deforestation.

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The clauses on this website (and published in our Climate Contract Playbook) have been prepared in good faith on a pro bono basis and are free to download and use. The clauses have been drafted and edited by a variety of lawyers and, as such, the approaches to drafting may not conform to any particular drafting norms. We acknowledge this as a consequence of the collaborative drafting process.

The clauses on this website (and published in our Climate Contract Playbook) are provided on an ‘as is’ basis and without any representation or warranty as to accuracy or that the clauses will achieve the relevant climate goal or any other outcome.

This website (and the Climate Contract Playbook) does not comprise, constitute or provide personal, specific or individual recommendations or advice of any kind, and does not contain legal or financial advice. The clauses are precedents for legal professionals to use, amend and negotiate using their professional skill and judgement and at their own risk.

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At present, all the clauses are based on the laws of England and Wales. We encourage the conversion of these precedent clauses for use in other jurisdictions.

The clause

Additional Recitals

(A) [Insert name of landowner/ leaseholder] is the registered owner of the [freehold OR leasehold] of the Land as defined in section 1 below (the “Owner“);

(B) [Insert name, registered address and registered charity number of soil conservation charity] has been designated as a responsible body [pursuant to section 119 of the Environment Act 2021] (the “Responsible Body“) (together referred to as the “Parties”);

(C) The Parties agree to enter into a conservation covenant agreement pursuant to Part 7 of the Environment Act 2021 (this “Agreement”);

(D) The Parties agree that the purpose of this Agreement is to preserve and enhance the Soil Health at the Covenant Area to mitigate climate change and enhance biodiversity (the “Conservation Purpose”);

(E) The Parties agree that the duration of this Agreement shall be for a term of [insert number of years].

 

Additional Definitions

Baseline Soil Health Report means the baseline documentation report created by the Responsible Body that describes the Covenant Area and the Soil Health in the form of text, maps, photographs and other records of the Covenant Area and the Soil Health as of [insert relevant date], a copy of which is attached as Schedule [2].

Covenant Area [is described in the Baseline Soil Health Report] [OR] [means all the Land as defined in this Agreement].

Good Agricultural and Environmental Conditions (GAEC) means GAEC 4 (Providing minimum soil cover), GAEC 5 (Minimising soil erosion) and GAEC 6 (Maintaining the level of organic matter in soil) as published by the Rural Payments Agency in the Guide to Cross Compliance in England 2020, or any such rules as may replace the GAECs from time to time, or any other relevant rules or guidance as the Responsible Body may reasonably recommend.

Land means the land legally described as [insert address] as set out in the plan attached as Schedule [1], which is a qualifying estate [pursuant to section 117(4) of the Environment Act 2021].

Owner means [name of landowner] and its successors and permitted assigns.

Restricted Activity or Restricted Activities has the meaning given to it in clause [1.5].

Soil Health means the quantity, quality and health of the soil in the Covenant Area including but not limited to the carbon content, bulk density, pH, nitrogen, mineralisable N (nitrogen), Olsen Pm and toxic metal content of such soil. 

Subsequent Soil Health Report means the annual report created by the Responsible Body [by/ within] [insert deadline for preparation] that describes the Soil Health in the Covenant Area at the relevant period of monitoring in the form of text, maps, photographs and other records.

 

Additional Clauses

1. OBLIGATIONS ON THE OWNER

1.1 The Owner shall take all reasonable steps, including but not limited to following the reasonable recommendations of the Responsible Body (unless the Owner provides written confirmation to the Responsible Body of its reasonable cause for not doing so), to: 

1.1.1 improve upon the results of the Soil Health as recorded in the Baseline Soil Health Report after the first year of this Agreement; and 

1.1.2 in each subsequent year to improve upon the results in the Subsequent Soil Health Report from the previous year.

1.2 The Owner shall comply with the Good Agricultural and Environmental Conditions

[1.3 The Owner shall pay the reasonable costs of the Responsible Body in carrying out the activities described in clauses 2.1 and 2.2.] 

1.4 Subject to clause 2.3, the Owner shall grant such access onto the [Land and the]* Covenant Area to the Responsible Body as is necessary for the Responsible Body to carry out the activities described in clauses 2.1 and 2.2.  

* [Drafting note: Delete square brackets if the Covenant Area and Land are the same. Otherwise keep, as it might be necessary to access the Land in order to reach the Covenant Area.]

1.5 The Owner shall not carry out, or permit others to carry out, any of the following activities in the Covenant Area (each a “Restricted Activity”, or together “Restricted Activities”):

1.5.1 removal of topsoil, sand, gravel, rock, minerals or any other [naturally occurring materials/ materials that could reasonably be considered as necessary to maintaining the Soil Health] or alteration of the topography of the land in any manner (if such removal or alteration is within the Owner’s control);

1.5.1 application to or introduction of pesticides onto or into the Covenant Area, including but not limited to herbicides, insecticides or fungicides, or chemical fertilisers;

1.5.3 use of the Covenant Area for growing genetically modified plants;

1.5.4 use of tillage practices other than minimum tillage practices and/or direct drilling practices [as described in the Department for Environment, Food & Rural Affairs’ Guidance, ‘Use min-till or no-till farming’ as updated from time to time]; 

1.5.5 use of the Covenant Area to grow any single type of crop for a period of more than [three] consecutive years; or

1.5.6 lease or license of the use of the Covenant Area unless the lease or license is expressly made subject to the provisions of this Agreement and expressly entitles the Owner to terminate the lease or license if the lessee or licensee breaches any of the provisions of this Agreement.

1.6 A Restricted Activity may be carried out by the Owner, or such others as the Owner may permit, provided that the Owner has obtained prior written consent from the Responsible Body in relation to each instance of such Restricted Activity for the defined time period during which such Restricted Activity shall be carried out.

2. OBLIGATIONS ON THE RESPONSIBLE BODY

2.1 The Responsible Body shall carry out the following activities in relation to the Covenant Area:

2.1.1 monitoring the Soil Health each year, beginning with the year in which the Parties entered into this Agreement, which includes the monitoring of such aspects of Soil Health and against such metrics as the Responsible Body may reasonably recommend; 

2.1.2 preparing the Baseline Soil Health Report and the Subsequent Soil Health Report(s); and

2.1.3 keeping copies of the Baseline Soil Health Report and Subsequent Soil Health Reports at the address for the Responsible Body as set out in [recital (B)] for the duration of this Agreement and making such copies available for inspection by the Owner upon the request of the Owner.

2.2 The Responsible Body may provide, or procure the provision of, such advice and support to the Owner as it considers necessary to improve the prospects of fulfilling the Conservation Purpose.

2.3 The Responsible Body shall provide not less than [insert number] [day’s/ days’] written notice to the Owner prior to accessing the Covenant Area for the purpose of complying with its obligations under this clause 2 and shall cause as little damage to the Covenant Area including any crops or other items on the Covenant Area as reasonably practicable when accessing or entering the Covenant Area.   

3. BASELINE SOIL HEALTH REPORT

3.1 The Parties agree that the Covenant Area and the state of the Soil Health as of [insert relevant date] are accurately described in the Baseline Soil Health Report. 

3.2 The Parties agree that the Baseline Soil Health Report is intended to serve as an objective information baseline for monitoring compliance with the terms of this Agreement. 

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