Conservation covenants

Conservation covenants 

Willing landowners might make better custodians of the countryside than the enforcement of compulsory schemes. 

 

Conservation: a new approach?

The idea of ‘fortress conservation’ has been orthodoxy in policy circles since the 1950s and our landscape today is blanketed with a myriad of statutory designations and regulations – SSSIs, SPAs, SACs, Ramsar sites, TPOs, AONBs, NVZs – requiring careful navigation when undertaking anything from felling a tree to restoring a historic park. But it is increasingly recognised that willing landowners working in partnership with conservation organizations make better custodians than those ruled by the enforcement of compulsory schemes. Voluntary agreements that incentivise good management often lead to much more positive outcomes.

Voluntary agreements

One of the reasons why more voluntary conservation agreements do not already operate is that there is no easy contractual mechanism to safeguard land use in the longer term which is binding on successors in title. Recognising this gap in our law, the Law Commission has been consulting on the introduction of conservation covenants. On 29th January this year the Environment Secretary, Liz Truss, committed Defra to exploring the role of conservation covenants in the department's 25 year Environment Plan. So what exactly are conservation covenants? 

Conservation covenants

A conservation covenant is a long-term agreement between a landowner and a conservation body. The landowner promises to do something, or not to do something, on his or her land to achieve a conservation objective – be it farming land in a particular way, protecting a habitat, or cultivating a particular species of plant. The obligation is binding: the current landowner and any future landowners will have to abide by the agreement. But, critically, it is a voluntary contractual agreement between willing parties. 

Why hasn’t this happened before?

English Law has until now been extremely cautious about allowing people to create perpetual obligations on their land, because of concerns about ‘dead hand’ control: allowing landowners to dictate what happens long after their death. This caution is based on the principle that each subsequent owner of land should have the freedom to make his or her own decisions about how the land is used. The courts have said that it is only possible to create binding obligations on freehold land if: 

1. It is created for the benefit of neighbouring land (for example, a promise by a landowner not to build above a certain size so that his or her neighbour’s view is preserved); and

2. It is a promise not to do something (a restrictive obligation), rather than a promise to do something (a positive obligation). 

In recent years, however, there has been increasing interest in landowners being able to create binding positive and restrictive obligations for the purpose of conservation generally – not just for the benefit of a neighbour.  

Precedents abroad

Accordingly, the Law Commission recommended new primary legislation to bring about a statutory scheme of conservation covenants in England and Wales. In doing so we would be following other Common Law jurisdictions, including Scotland, Canada, Australia and New Zealand, which have already made special provision for conservation covenants.

Conclusion 

In those countries when conservation covenants already operate, they have been used to drive and deliver a ‘bottom-up’ approach to conservation: rather than relying on statutory impositions, individual landowners can decide for themselves, under private contractual agreements, whether they would like to provide assurance of long-term conservation. The proposals should therefore be welcomed, offering a step-change in the way we do conservation – and heralding a move away from designation and regulation.  

If you would like any more information on Conservation Covenants please contact Charlie Russ cruss@savills.com

 
 

Key contacts

Philip Eddell

Philip Eddell

Director
Country House Consultancy

Savills Newbury

+44 (0) 1635 277 709

+44 (0) 1635 277 709