The Environment Bill published on 15 October sets out the Government’s proposals to introduce a new form of “conservation covenant” to enable long term conservation schemes to be implemented.
Conservation covenants will bind the land subject to the covenants and anyone who owns it. The proposals are set out in part 7 of the Bill and they apply only to land in England.
In 2013, the Law Commission produced a report and a draft bill to introduce conservation covenants to conserve wildlife, habitat and heritage assets. The proposals were subject to a further consultation by DEFRA in early 2019. The Environment Bill does not make any radical changes to what was previously proposed.
A conservation covenant will be a private, voluntary agreement between a landowner and a responsible body - such as a conservation charity, government body or a local authority - intended to deliver lasting conservation benefits for the public good. The covenant will set out legally enforceable obligations and restrictions in respect of land that will be binding on the owner and its successors in title. To ensure that covenants are not created unintentionally, it must be apparent that there is an intention to create conservation covenants.
Conservation covenants may require the landowner to do, or not to do, something on their land or require the landowner to allow the responsible body (or impose an obligation on the responsible body) to do something on that land.
Conservation covenants may impose obligations in respect of the natural environment, such as plants and animals and their habitats; land’s natural resources, such as water on the land; the land as a place of archaeological, architectural, artistic, cultural or historic interest; and the setting of the land. The reference to setting provides for the protection of land around a conservation site, which may affect its conservation status. For example, the architectural or artistic value of a country house could derive in part from the landscape in which it is set.
Who can create conservation covenants?
Conservation covenants may be created by the freehold owner of land or by a leasehold owner who has a lease for a term of more than seven years. Where covenants are created by a freehold owner, they will continue indefinitely unless otherwise stated in the agreement or the covenants are later released either by agreement between the landowner and the responsible body or on an application to the Upper Tribunal. Covenants created by a leasehold owner will continue only during the contractual term of a lease.
Once created, conservation covenants will be registerable as local land charges. Until registered, they will not bind future owners of the land. It will be clear from a local land charges search whether land is subject to conservation covenants.
Who will be bound by conservation covenants?
Subject to registration as a local land charge, conservation covenants will bind successors in title to the landowner who gave the covenant but will not bind anyone whose interest in the land predated the creation of the covenant. Therefore, for example, a freehold owner will not be bound by a conservation covenant created by its tenant and an existing tenant of land will not be bound by a conservation covenant created by its landlord after the grant of its lease.
There is one limitation on liability for tenants of leases for a term of not more than seven years. They will be bound by negative obligations contained in existing conservation covenants. They will not be bound by positive obligations in those covenants.
A person who is bound by a conservation covenant will be released from its obligations when it no longer owns an interest in the land.
Enforcement of conservation covenants
Where a landowner undertakes a negative obligation, they must not breach or allow others to breach it. Where they take on a positive obligation there is a responsibility to ensure that it is performed. In either case, the responsible body will have the right to enforce the landowner’s obligations.
Sanctions for breach of a conservation covenant will include an injunction to prevent damaging activity, an order requiring specific performance to deliver the conservation outcomes, and the payment of damages, including exemplary damages.
Other countries, including the USA, New Zealand and Scotland, have introduced conservation covenants and the uptake of them has been good. In Scotland, which introduced its legislation in 2003, around 200 conservation covenants are in place. The new provisions will allow landowners in England to put in place legally enforceable obligations in relation to the conservation of land in a straightforward way. They are likely to be one of the mechanisms used for implementing the provisions in Part 6 of the Environment Bill on biodiversity gain.