Environment Bill 2019-21: Conservation Covenants (Part 1 of 2: what they are and how they work)
Background of the Environment Bill 2019-21
The previous version of the bill- the Environment Bill 2019- fell at the dissolution of Parliament for the General Election in December 2019. It was reintroduced in substantially the same form in the current Parliament and is called The Environment Bill 2019-21 . The Covid-19 pandemic interrupted its committee stage and then report stage with the result that the government postponed debate on 26 January 2021 until the next parliamentary session.
Conservation Covenants (“CCs”) are dealt with in Part 7 of the Environment Bill 2019-21, which applies to England only.
What is a CC?
In summary a CC is a provision in a private, voluntary CC agreement between a landowner and responsible body (such as a public body or a private body whose main activities include conservation such as a conservation charity). They provide for the conservation of the natural environment and heritage assets for the public good on land subject to the CC and crucially- by binding successors in title if it is sold or passed on- they ensure that that conservation can be maintained in the long-term.
A landowner means a person who holds a ‘qualifying estate’ in land i.e. freehold or a leasehold granted for a fixed term of more than 7 years (and that term has not expired). A responsible body is the Secretary of State and any qualifying body designated by him upon application by that body.
A CC is a provision in a CC agreement which is given statutory effect. A provision will qualify as a CC if it meets the following conditions:
- it is of a ‘qualifying kind’ i.e. it requires a landowner or responsible body to do something on the land (a ‘positive obligation’) or not do something (a ‘negative obligation’);
- it is for a ‘conservation purpose’ i.e. it relates to the conservation, protection, restoration, or enhancement of: the natural environment of the land (e.g. plants and animals and their habitats), the land’s natural resources (e.g. water on the land), the land as a place of archaeological, architectural, artistic, cultural or historic interest, and the setting of the land;
- it is intended by the parties to be for the public good e.g. through public access to the land subject to the CC.
An example might be a landowner covenanting to maintain a wetland on their land and allowing public access to it.
A CC agreement must be in writing, signed by the qualifying parties, evince their intention to create a CC, and contain a provision which qualifies as a CC.
What is the duration of an obligation under a CC?
Unless the parties agree to a shorter period in the CC agreement, an obligation under a CC has effect for the ‘default period’ which is:
- indefinitely where the relevant qualifying estate is freehold; or
- the remainder of the term where the relevant qualifying estate is leasehold.
How and in which circumstances do CCs bind subsequent landowners?
A CC will bind the landowner who created it (‘the original covenantor’), and burden his qualifying estate in the land which enabled him to create it. A CC will bind any successors of the original covenantor – that is, anyone who acquires the qualifying estate in the land (or part of that land) or who holds an estate derived from it (for example, a lease of the whole or part of the land)
A CC will not bind anyone:
- whose interest in the land predates the CC e.g. if a freeholder grants a lease, and then enters into a CC relating to the land which is the subject of the lease, and the lessee is not a party to it, the lessee will not be bound by any obligation of the landowner under the CC;
- who is a lessee or sub-lessee under a lease granted for seven years or less in respect of positive obligations;
- who acquires an estate in land in circumstances where the CC in respect of it- which is a local land charge- has not been registered as such (it is up to the responsible body to apply for its registration once it has been agreed);
- whose immediate predecessor was not bound by the CC e.g. because of its discharge (See Part 2 of these blog posts) or late registration so it was not registered until after the immediate predecessor had acquired their interest in land.
Charles Forrest is a barrister at Francis Taylor Building.