What does a ‘conservation covenant’ mean for landowners?

Alex Walmsley, solicitor in Harrison Drury’s property litigation department, discusses the proposals in the government’s latest green initiative and what they may mean for landowners and future developers.

The Environment Bill (published in October 2019) sets out proposals to conserve wildlife, habitat and heritage assets in England and Wales with methods including ‘conservation covenants’ which are intended to bind land.

The growing desire to protect the environment

Over recent years there has been increasing interest for landowners to be able to create binding positive and restrictive obligations that are not specifically for the benefit of their neighbour, but for the general purpose of conservation.

As part of the government’s latest green initiative the new proposed conservation covenants are intended to be lasting agreements to continue after the landowner has parted with the land.

Landowners in England and Wales could, for the first time, protect their environment not only during their tenure but in perpetuity if they wished. This would potentially ensure legal protection to landscapes and wildlife sites in England and Wales.

What is the current position?

Although conservation covenants are used in many other jurisdictions, including Scotland, the USA and Canada, they do not currently exist in the law of England and Wales.

Previously, there has been attempts made by landowners to protect the environment upon the sale of land by way of restrictive covenants to prohibit development, but with limited success.

Unfortunately, the reality has been that these covenants have not been able to successfully bind land as they have never been able to satisfy the necessary legal tests, particularly when put to proof as to the benefitting land.

Who will be able to create these 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 if 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 a conservation covenant?

The idea behind conservation covenants is to allow landowners to set legally binding obligations on their land for themselves and subsequent owners and thereby secure environmental benefits for the long term. Therefore, the intention would be to bind current and future landowners.

How will conservation covenants be enforced?

Where a landowner undertakes a negative obligation, such as a conservation covenant, 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 relevant 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
• payment of damages, including exemplary damages.

If you would like to find out more about protecting your proprietary interests, or to seek specialist legal advice from Harrison Drury’s property litigation team please contact them on 01772 258321.