The government is consulting on Law Commission proposals to introduce a new form of “conservation covenant” to enable long term conservation schemes to be implemented.
Conservation covenants would bind the land subject to the covenants and anyone who owns it.
In 2013, the Law Commission produced a report and a draft bill to introduce conservation covenants to conserve wildlife, habitat and heritage assets. A conservation covenant would 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 would set out legally enforceable obligations and restrictions in respect of land and those would be binding on the owner and its successors in title.
Sanctions for breach of a conservation covenant would 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.
Potential use of covenants
The consultation sets out various examples of where conservation covenants could be used. These include:
- A housing developer who wants to construct a new housing estate could enter into conservation covenants to maintain land with nature conservation value, either within the development or elsewhere in the local authority’s area;
- A landowner whose property has been restored to its former historical state could enter into conservation covenants to ensure that the heritage value of the restored property is protected if the property is sold;
- A landowner could enter into a conservation covenant under which it agrees to maintain and manage land in a way that protects the environment, minimises the risk of flooding, protects flora and fauna or protects archaeological remains under the land. This might be in return for an annual payment.
In some instances, the law currently allows for landowners to agree conservation obligations that bind future landowners. However, these have serious shortcomings and they are complicated to understand. The intention is that the new form of conservation covenant will make it easier to deliver lasting conservation benefits for the public good.
Before implementing the Law Commission’s proposals, the government has asked for people’s views on a number of issues arising from the Law Commission’s report. These include:
- whether conservation covenants are needed in England;
- what demand there is for conservation covenants;
- whether conservation covenants would deliver lasting conservation outcomes;
- what uses people would make of conservation covenants;
- whether the introduction of conservation covenants might have unintended consequences;
- whether any changes are required to the Law Commission’s original proposals;
- whether tenants of land could enter into conservation covenants and, if so, on what terms; and
- how the use of conservation covenants will be monitored and abuses of the system prevented.
Responding to the consultation
- If you would like to access the consultation, you can download a copy using the link below.