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Archive for April, 2013

Conservation Covenants Consultation

The Law of England and Wales has limited the ways in which an obligation or covenant can bind land in perpetuity.  Generally speaking, it is only possible to create a perpetual covenant on freehold land if it was created for the benefit of neighbouring land and it is a restrictive rather than a positive obligation.

Some other jurisdictions (for instance as near as Scotland or far away as Australia) have, however, embraced a concept known as a ‘conservation covenant’.  The Law Commission has examined whether there is a case for introducing it into English and Welsh law.

Conservation covenants “allow landowners voluntarily to create binding obligations on their own land to meet a conservation objective, such as preserving woodland, cultivating a particular species of plant or animal, or farming land in a certain way” (Law Commission’s Summary of its consultation paper published in March 2012).

The Law Commission believes reform of the law is needed and makes some provisional proposals for introducing a statutory scheme.  For instance, in looking at who should create a conservation covenant, it is proposed that the Secretary of State or the Welsh Ministers should have the power to designate an organisation as a ‘responsible body’ i.e. a public body, a registered charity or local authority.  The responsible body will monitor the performance of the landowner’s obligations created by the covenant backed by a robust system for addressing failures to comply.  It is also proposed that any statutory scheme should aim “to combine permanence (to ensure conservation goals are realised) with sufficient flexibility so that land remains useful”.   The Commission therefore considers not just creation of a conservation covenant but also how one might be modified or discharged.

The Law Commission’s Consultation Paper is available on its website, makes a very interest read and is open for responses until 21 June 2013.