Conserving the land

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On 24 June 2014 the Law Commission reported to the Government on a proposal to put in place legislation to permit landowners and responsible bodies to voluntarily agree that certain things should be required or prohibited in respect of piece of land for conservation purposes, called conservation covenants.

A conservation covenant is different from a normal positive or restrictive covenant in that the responsible body does not need to own any land in the vicinity of the land affected by the conservation covenant to enforce it. In fact the responsible body does not need to have a connection with the land at all.

Once a conservation covenant is made it would be binding on the landowner and future owners and it would be up to the responsible body to make sure the landowner complied with it. The conservation covenant would take effect as a local land charge.

Why is it needed?

In the past landowners have wanted to bind future owners of the land to ensure that certain features, such as plants or historic buildings, are conserved for the public. As things currently stand it can be very difficult to do this, requiring complex ownership structures and in some cases it is just not possible to achieve.

Conservation covenants are already permitted in many other common law jurisdictions, such as Scotland, and the Law Commission has recommended that this be introduced in England and Wales too.

Who could enter into a conservation covenant and when could it be made?
A landowner could voluntarily agree to enter into a conservation covenant with a responsible body. The landowner would need to either own the freehold interest in the land in question or be tenant under lease with a term of more than 7 years.

Responsible bodies would include the Secretary of State (for England), the Welsh Ministers (for Wales) and those appointed by them, such as local authorities and public bodies or charities whose purpose is connected to conservation.

The covenant must be:

  • for the public good
  • for a conservation purpose, meaning for the purpose of conserving, protecting, restoring or enhancing:
    – the natural environment
    – natural resources
    – cultural, historic, archaeological, architectural or artistic features of the land
    – surroundings, setting or landscape of any land which has any of these features.

The Law Commission has given examples of what a conservation purpose might be, which could include an obligation to preserve a historic building, grow a specific type of plant, maintain woodland and allow the public to have access to it or to prevent the use of certain pesticides.

It has also been recommended that a conservation covenant template be produced that sets out the various points that the parties might want to consider, including the time period, the obligations of the parties and how the covenant is to be enforced.

Enforcement and defences to breach

It is up to the responsible body to ensure that the conservation covenant is complied with and to take action against the landowner if it is not. The covenant can also place obligations on the responsible body.

It is currently suggested that the responsible body should have a range of ways to ensure compliance with the covenant by the landowner. In the majority of cases it is expected that the landowner would have to pay damages and in circumstances where the breach was the landowner’s fault the court could order exemplary damages, being damages set at a higher amount than normal compensatory damages. Where compliance is required urgently the responsible body could potentially obtain a court injunction.

The landowner would be able to defend a breach of a conservation covenant in limited circumstances, for example a natural disaster where the breach is outside of their control or where it has come about due to an emergency and the parties were trying to prevent injury or loss of life.

Varying or discharging the covenant

Conservation covenants could be changed or discharged by mutual agreement between the parties. Alternatively, either party could apply to the Lands Chamber, which has the power to change or discharge the covenant if it would be reasonable to do so. The Lands Chamber would look at factors such as change of circumstances, what is of most benefit to the public and whether the covenant is successfully meeting its conservation purpose.

WM comment

Although this is currently only a proposal to the Government, the Law Commission have recommended that the scheme goes ahead. It may be worthwhile for landowners, local authorities and quasi governmental bodies or charities with a conservation purpose to reflect now upon how this could affect them and what benefits could be achieved.