Conservation Covenants – Binding Your Buyer To Improve The Environment

One of the key concepts that have entered public discourse over the past decade has to be our environment and the way that we, as humans, interact with it.

Few would deny that public awareness of our environmental impact is at its peak. Keywords for 2019 might include plastic-free and reusable, along with the obvious ‘B’ word.

Biodiversity and the way that we treat the land that we live on is an area of environmental conservation that receives relatively little media attention when compared to weather incidents or mountains of plastic splashed across our screens. However, the Government are proposing steps to allow members of the public to take action into their own hands.

In January 2018, the Government released a policy document called ‘A Green Future: Our 25 Year Plan to Improve the Environment‘. This included various reviews and metrics to monitor progress along with views on the key areas that they would like to deal with through future legislation.

Conservation Covenants

One of the more unusual proposals put forward by the Government is for individuals to place conservation covenants onto land either as a way to stop future owners from doing certain things on land or to give organisations the opportunity to pay individuals to do certain things with their land.

These proposals are covenants between property owners and responsible bodies who could include conservation organisations, such as the National Trust, or public bodies, such as your local authority. The covenants would oblige landowners and their successors to do or not to do something on their land that they deem as being in the public interest. The idea behind this is that individuals, including those who own agricultural land, could take positive steps to ensure that areas of land are re-wilded for future generations.

A conservation covenant will pass from owner to owner and bind future landowners as well as the person who entered into the agreement and can deliver lasting conservation benefits.

Why can’t we already do this?

A buyer cannot enforce a positive covenant (i.e. a covenant to do something). To do this, a new contract needs to be entered into, requiring one party to perform something for the other. Generally, an issue with this is that a contract contains a time limit and does not affect subsequent buyers.

Such conservation covenants already exist elsewhere, including in Scotland who uses Conservation Burdens. These are enforced by conservation bodies or by Scottish Ministers for conservation or architectural purposes that benefit the public.

What could a Conservation Covenant do?

The Government have listed a number of scenarios that they expect to be enabled by positive covenants, which include:

• Altruistic uses – A landowner who has inherited extensive moorland which includes a crag much used by rock climbers. The landowner intends to leave the land to his children. They use a conservation covenant to ensure that the moorland is properly managed and that the public continues to have access to the crag.
• Securing heritage sites – A farmer, who is also a keen amateur archaeologist, has the buried remains of a Romano-British villa on their land. They are keen to ensure its protection and agrees to take the land out of cultivation. They would like the appropriate management to be maintained after they have disposed of the land and use a conservation covenant to secure this outcome.
• An alternative to land purchase by conservation organisations – A wildlife charity identifies a plot of land as containing the habitat of a native bird species. It makes a financial offer to the landowner in return for the land being maintained as a habitat. The landowner agrees. The conservation covenant sets out the obligations that the landowner has to undertake to receive the financial offer.
• Disposals of land by conservation organisations – A heritage group have invested funds in buying and restoring a Victorian house. The organisation wishes to sell the land but ensure that the work it has undertaken, and the heritage value of the property, are preserved. A conservation covenant ensures that future owners of the property maintain the conservation improvements made through the restoration work.
• Payment for ecosystem services – An area of woodland upstream of a river that passes near homes has helped to mitigate localised flooding. After negotiations, the landowner agrees to continue with current land management practices, restoring and maintaining the woodland in return for a yearly payment. The obligations for land management and annual payments are set out in a covenant between the landowner and the responsible body.
• Net gain for biodiversity – A local planning authority receives a planning application for a new housing development on land with some nature conservation value. The proposed development has retained habitat where possible and undertaken nature enhancement within the design but cannot entirely mitigate its impacts on site. In accordance with the recently updated National Planning Policy Framework, the local authority asks the developer to agree to improve habitats elsewhere in the local area to ensure the development leads to a net positive impact on wildlife habitats before granting permission. A conservation covenant provides one possible mechanism for securing permanent land-management obligations for the area of improved habitat.

Next steps

In October 2019, the Government has decided to introduce legislation for voluntary conservation covenants in the Environment (Principles and Governance) Bill.

The Environment Bill would, along with a variety of other mechanisms, allow Conservation Covenants to bind the land.

At present, a variety of questions have been raised during the consultation, including how these could be registered, who would be obliged to enforce them, and how they would impact inheritance tax. It would also be very interesting to see how members of the public might use conservation covenants to bind their own land.

What the Government have not yet discussed is the ability of organisations and members of the public to use conservation covenants.

Perhaps a particularly environmentally conscious family might place a covenant in order to protect certain trees or areas of their garden or even oblige future landowners to preserve their favourite plants. This all falls within the Government’s Year of Green Action where they are promoting the connection with, protection of and enhancement of nature in the UK.