Friday, 12 April 2013

Conservation Covenants - Law Commission Consultation

The Law Commission (LC) has launched a consultation on whether the concept of "conservation covenants" should be introduced into the law of England & Wales.

By "conservation covenant", the LC means a voluntary agreement between a landowner and responsible body (charity, public body or local/central government) to do or not do something on their land for a conservation purpose. 

This might be, for example, an agreement to maintain a woodland and allow public access to it, or to refrain from using certain pesticides on native vegetation. 

The agreements would be long lasting and continue after the landowner has parted with the land, ensuring that its conservation value is protected for the public benefit.

Conservation covenants are used in many other jurisdictions (including Scotland, USA, Canada, Australia and New Zealand) but do not exist in the law of England and Wales.

Our law has been cautious about allowing people to create perpetual land obligations because of concerns about "dead hand control": allowing landowners to dictate what happens on their land long after their death.

The complex law of restrictive covenants has built up against this background.

So landowners and responsible bodies are currently relying on complicated and expensive legal workarounds, or the limited number of existing statutory covenants that enable certain covenants to be enforced by specified bodies.

For example the National Trust can create statutory covenants with landowners for the purposes of conserving land, even where the National Trust does not own neighbouring land. A National Trust covenant will bind the landowner who agrees to it, and all subsequent owners of the land.

The LC's paper sets out suggestions for a new statutory scheme and responses are invited by 2 June 2013.

In a wider context, the LC has already recommended (in June 2011) the replacement of restrictive covenants with a new "land obligation", although this hasn't been taken forward by the government.

The old rules against perpetuities have however been changed by the Perpetuities and Accumulations Act 2009 (see this post from 2011 for more about that).

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