CONSERVATION COVENANTS: A LOOK TO THE FUTURE

23 / 09 / 2021

Conservation covenants are private and voluntary agreements between landowners and responsible bodies to do or not to do something on their land for a conservation purpose. Conservation covenants allow landowners to make their own arrangements in the public interest and can be used to secure long-term protection of the natural environment and heritage assets.

History

The Law Commission examined whether there was a need to introduce conservation covenants in early 2012 and published its findings in June 2014. The Law Commission’s final report recommended that there should be a statutory regime which provides for a voluntary agreement to be made between a landowner and responsible body for a conservation purpose and for the public good.

The Government proposed to explore the potential role of conservation covenants in its 25 Year Environment Plan, which was later published in January 2018. In the Plan, the Government suggested that conservation covenants could be used as a way to enable landowners to create legally binding obligations and deliver lasting conservation benefits for future generations.

Most recently, conservation covenants appear in Part 7 of the Environment Bill (applicable only in England), which is currently in the reporting stage in the House of Lords. The Bill provides a more formal framework of measures and demonstrates how conservation covenants will be used to support the Government’s environmental ambitions.

Similarities

Conservation covenants are not an entirely new idea, though they have not been widely used. The National Trust Act 1937 enables a landowner to agree restrictions to activities on their land with the National Trust. Similarly, the Forestry Act 1967 provides for the creation of a forestry dedication covenant, which allows a landowner to agree with the Forestry Commission that the land will only be used for the growing of timber and other forest products in accordance with the rules and practice of good forestry. However, both agreements can only be restrictive whereas conservation covenants can contain positive or negative obligations, suggesting that conservation covenants may have a wider application.

In a planning context, conservation covenants are similar to section 106 agreements and unilateral undertakings, which permit a local authority to secure restrictions on the use of land.

Current proposals

For conservation covenants to be valid, they must be (1) of qualifying land (meaning that they contain a positive or negative obligation), (2) for a conservation purpose, and (3) intended by the parties to be for the public good. For example, a landowner may covenant with the Royal Society for the Protection of Birds to permit public access on their land to preserve birdwatching.

The term of ‘responsible body’ has a wide definition. The Secretary of State itself is a responsible body,   and the Secretary of State will determine the criteria to be used when deciding whether an organisation is suitable to be a ‘responsible body’. A local authority can apply to be designated a ‘responsible body’, and a non-local authority can apply if some (or all) of its main purposes or functions relate to conservation – for example, public bodies or charities.

Duration, enforcement and discharge

Unless specified otherwise, the default position is that conservation covenants will last indefinitely where the relevant qualifying estate is freehold, or for the remainder of the term where the estate is leasehold. Responsible bodies can enforce conservation covenants against landowners, and anyone who holds a qualifying estate can enforce against responsible bodies. The limitation period following any breach of a conservation covenant is six years.

A conservation covenant will bind the landowner who created it, and any successor of the original covenantor. However, conservation covenants will not bind anyone whose interest in the land predates the covenant, anyone who is a lessee or sub-lessee under a lease granted for seven years or less (for positive obligations only), anyone who acquires an estate in land in circumstances where the conservation covenant has not been registered as a local land charge, or anyone whose immediate predecessor was not bound by the covenant.

A landowner and responsible body can agree in writing to modify or discharge one or more obligations in a conservation covenant, and the covenant will be discharged completely when the landowner’s land is released from all obligations.

Application

Looking ahead, conservation covenants will have a broad range of uses: for example, landowners can negotiate sales subject to certain obligations to preserve a conservation area, or they can agree to prohibit activities on their land which would damage a heritage asset. Conservation covenants might also interest charities or CIOs disposing of interests in land.

Key Points

  • Following a Law Commission consultation, a statutory scheme of conservation covenants is proposed in the Environment Bill.
  • Under the proposed scheme, conservation covenants are agreements between landowners and responsible bodies to do or not to do something on land for a conservation purpose.
  • Conservation covenants will have a wide application and can be used to help the Government to achieve the goals set out in its 25 Year Environment Plan.