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Environment Bill 2019-21: Conservation Covenants (Part 2 of 2: breach, enforcement, modification/discharge, declarations)

Environment Bill 2019-21: Conservation Covenants (Part 2 of 2: breach, enforcement, modification/discharge, declarations)

Climate Change

This is Part 2 of our blog posts on Conservation Covenants (“CC”). If you missed it, Part 1 can be found here .

Enforcement of a CC

What can be enforced?

If breached the following in a CC agreement can be enforced:

  • a provision which meets the conditions of a CC and therefore is given statutory effect (see Part 1 )
  • a provision which does not meet those conditions but which is nevertheless also given statutory effect because it is or should be treated as being ancillary to such a provision. Examples include where it relates to the performance of such a provision e.g. provision for payment for work done on the land or provision relating to the way in which work is to be performed, or provision for public access to the land.

The above are referred to as obligations under a CC (see Part 1 ). A negative obligation (not to do something) means the party must not breach it or allow/suffer others to breach it and a positive obligation (to do something) means there is a responsibility on the party to ensure that it is performed.

Who can enforce and who can be enforced against?

Where a landowner breaches its obligation under a CC, it is enforceable by the responsible body. Where a responsible body breaches any obligation on it under a CC, it is enforceable by anyone who holds the relevant qualifying estate (or an estate derived from it) at that time i.e. that might include a successor in title and exclude the original covenantor.

The limitation period is 6 years (the same as an action founded on simple contract)

Defence to enforcement for a breach of an obligation

It will be a defence where the breach occurred:

  • because of something beyond the defendant’s control;
  • as a result of something done in an emergency to prevent loss of life or injury (for example, to control flood water);
  • in circumstances where it is not possible to comply with an obligation under a CC without breaching a statutory control applying as a result of the designation of the land for a public purpose (e.g. as a SSSI), provided that designation was after the CC was created and, in the event that the defence is relied on only because of a failure to obtain authorisation (e.g. from Natural England) that would have enabled compliance with the obligation, the defendant can show that they took all reasonable steps to obtain such an authorisation;
  • but where, for responsible bodies, the defence of statutory authority applies

Available remedies in the event of successful enforcement

Injunction

  • Other equitable remedies e.g. specific performance of an obligation
  • Damages (contract principles apply e.g. remoteness), compensatory and exemplary (to ensure landowners do not profit from any breach)
  • Order for payment of an amount due under the obligation under the CC

The public interest in the performance of the obligation concerned will be taken into account by the court when considering equitable relief.

Modifying or discharging obligations under a CC

A landowner and responsible body can agree in writing to modify or discharge one or more of any obligation(s) under a CC in relation to part or all of the land which is subject to it or them (insofar as it relates to the landowner’s estate). Where all of a landowner’s land is released from all or the only obligation applicable to it under the CC then this will discharge the CC.

In the absence of any agreement, an application may be made to the Upper Tribunal (Lands Chamber) for modification or discharge of a CC or any obligation thereunder on grounds specific to CCs. An application cannot be made under s.84(1) Law of Property Act 1925, which is the means by which an ‘ordinary’ restrictive covenant can be discharged on the grounds therein.

If permission is granted by the High Court or County Court, an application to modify or discharge a CC can be made to the Upper Tribunal (Lands Chamber) in response to (and with the effect of suspending) proceedings brought to enforce an obligation under a CC.

Declaration as to CCs

The High Court, County Court or the Upper Tribunal, on application by any person interested, may make a declaration as to:

  • the validity of a CC;
  • whether land is subject to an obligation under a CC;
  • who is bound by or has the benefit of such an obligation;
  • the true construction (i.e. the meaning) of such an obligation. 

Charles Forrest is a barrister at Francis Taylor Building.