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The Introduction of Conservation Covenants in English Law

Published online by Cambridge University Press:  22 December 2020

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Summary

On 30 January 2020, the Environment Bill 2019-21 was introduced into Parliament. Part 7 of the Bill makes provision for the creation of conservation covenants, implementing in England the recommendations made by the Law Commission for England and Wales in its 2014 report Conservation Covenants. English law is likely, in the near future, to make provision for the creation and enforcement of conservation covenants. A conservation covenant is –

‘an agreement made between a landowner and a conservation body which ensures the conservation of natural or heritage features on the land. It is a private and voluntary arrangement made in the public interest, which continues to be effective even after the land changes hands.’

In this chapter, we discuss the nature of conservation covenants and the case put forward by the Law Commission for their introduction. We focus, in particular, upon the following issues. First, we look at the limitations under English law (as it currently exists) on a landowner's ability to undertake lasting conservation obligations to manage their land in a particular way. Secondly, we examine the features that conservation covenants need to have if they are to fill the gap tified in English law. We consider how the Law Commission's draft bill ensures that they have these features and discuss, where relevant, the changes that were made to that bill when it was incorporated into the Environment Bill. Thirdly, we provide an illustration of the possible use of conservation covenants in the context of planning legislation. Finally, we discuss the nature of conservation covenants, whether they will constitute a new form of proprietary interest in land, and why this issue matters.

THE LIMITATIONS OF CURRENT ENGLISH LAW

We start by examining the limitations of English law and some of the considerations that prompted the Law Commission's work on conservation. We do so by reference to the following example.

Example 1

A farmer owns an extensive estate comprised of a fine 17th century farmhouse, fields that are actively farmed, and a substantial area of marshland bordering a local river. When there is a period of heavy rain, the marshland floods and thereby prevents the river from breaking its banks further downstream, potentially flooding the local town.

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Publisher: Intersentia
Print publication year: 2020

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