Conservation covenants – what developers and landowners need to know

September 6, 2014
Agricultural law All Tallents Articles

Tom says:

A conservation covenant is a voluntary agreement between a landowner and a conservation organisation, or public body, to do, or not do, something on their land for a conservation purpose. This might include, for instance, agreements to maintain woodland and allow for public access or to refrain from using certain pesticides on native vegetation.

The Law Commission, an independent body set up by Parliament to keep the law under review and recommend changes where necessary, has recently issued a Report recommending a change in the law to introduce a system of statutory conservation covenants in respect of land in England and Wales.

A binding conservation obligation

If accepted by Parliament, the recommendations would create a system whereby not only the landowner, but also all future owners of that land, will be bound by the agreement made under the conservation covenant. Obligations of this type would be enforceable by a responsible body such as a charity, public body or local or central government and would continue in full force even after the original landowner who entered into the obligation parted with their interest in the land.

Protecting the land for future generations

Tom continues:

Under the current law, the enforceability of covenants of this type is far from straightforward and cannot be guaranteed.  For instance, the law draws a distinction between positive obligations (requiring a landowner to do certain things) and negative obligations (requiring and landowner not to do certain things) and the rules concerning enforceability are different for each sub-category. The present law can give rise to disputes as to whether or not obligations are binding and very detailed research can be required in order to clarify the position.

If accepted, the proposed changes would simplify these issues, hopefully reducing the potential for disputes. The aim of the recommendations appears to be to encourage landowners to impose binding conservation obligations for the continued benefit of the environment and the public as a whole.

We suspect that in many cases landowners will already be undertaking conservation activity of the type that the proposed changes envisage on their land. However, by entering into a formal obligation of the kind that the Law Commission is recommending, the landowner could also help secure future continuation of these practices by their successors in title.

But is this all good news?

A possible counter-argument to the proposed reforms might be that if a landowner imposed onerous conservation obligations on their land then this might affect the value of the land because subsequent owners may be restricted in the way they could then use or develop the land.

Tom comments:

For this reason, it may be that landowners who were interested in imposing conservation covenants might have to attempt to strike a balance by imposing obligations that are strict enough to achieve their conservation objectives but not so onerous as to suppress future land values. Balancing these factors may well prove difficult, but at least if the proposed system were to be brought in, then landowners would have the choice.

The level of appetite for these changes among landowners remains to be seen and this might go some way to influencing whether or not Parliament will accept the Law Commission’s recommendations and whether the proposed changes will ever become law.

allowing public access to land conservation covenants maintaining woodland
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