DEFRA consultation outcome and conclusions on legislation for conservation covenants in England

rural sceneEngland’s Department for Environment Food and Rural Affairs (DEFRA) has published the consultation outcome, summary of responses and government response on new legislation for conservation covenants.

image: Peter Badcock

DEFRA concludes that it will ‘introduce legislation for covenants in England in the Environment Bill’ with proposed changes to the Law Commission proposals, to include

  • allowing for-profit bodies to apply to be responsible bodies
  • not to require responsible bodies to include the location and headline objectives of conservation covenants in annual reports
  • not to set a threshold of 15 years remaining on a lease and not to require either tenants or landlords to secure approval from each other to enter a covenant.

DEFRA writes:

Conservation covenants are private, voluntary agreements between a landowner and a responsible body, such as a conservation charity or public body, allowing for positive or restrictive obligations to fulfil a conservation objective. They are capable of being binding not only the landowner, but also subsequent landowners, so have the potential to deliver lasting conservation benefits for the public good. Covenants offer flexibility as the parties negotiate the terms to suit their particular circumstances, including the covenant duration.

Our consultation sought views on whether we should introduce legislation for conservation covenants in England. We proposed using the Law Commission’s draft Bill as a basis for legislating, with some changes. These changes were: (1) allowing for-profit bodies to become responsible bodies, (2) requiring responsible bodies to include the location and headline objectives of conservation covenants in annual reports, and (3) requiring tenants entering covenants to have at least 15 years remaining on their lease and the landlord’s consent. We also asked whether landlords should secure agreement of relevant tenants when entering into a covenant.

We received 112 responses from a range of sectors, including farmers, landowners, conservation organisations, local authorities and groups promoting access to the countryside. Responses showed significant support for covenants – the majority saw them as a useful tool for delivering lasting conservation outcomes. A number of landowners said they would consider putting conservation covenants on their land, and many mentioned the role covenants could play in delivering 25 Year Environment Plan commitments on biodiversity net gain and nature recovery. We intend to introduce legislation for covenants in England in the Environment Bill. We will develop guidance to assist parties to conservation covenants. In terms of our proposed changes to the Law Commission proposals:

  • Allowing for-profit bodies to apply to be responsible bodies received broad support. We intend to take this proposal forward. Responsible bodies can be designated by the Secretary of State if they meet relevant guidelines.
  • We do not now intend to require responsible bodies to include the location and headline objectives of conservation covenants in annual reports. We do, however, intend to include a new provision in the Bill allowing the Secretary of State to set additional requirements for annual reports in secondary legislation.
  • After consideration of consultation responses on tenants and landlords, we do not intend to set a threshold of 15 years remaining on a lease – but rather that we revert to the Law Commission proposals for tenants to have a lease of more than seven years with some time remaining on the lease. We also do not now think it is necessary to require either tenants or landlords to secure approval from each other to enter a covenant because tenants cannot act beyond the limits of their powers and legal obligations set out in the tenancy agreement.

Beyond our proposed changes to the Law Commission proposals, respondents made comments on a range of key areas:

  • Some were concerned that covenants would not be flexible enough to allow for changes in circumstances over time. Our approach will allow parties to agree to modify or discharge obligations when circumstances change and, when they cannot agree, to refer disputes to the Lands Tribunal. Parties can design their covenant to suit their particular circumstances, covering issues such as the duration of the covenant and whether it can be transferred to another responsible body.
  • Some respondents thought the introduction of legislation would make conservation covenants compulsory. This is not our proposal. Covenants are entirely voluntary, entered into only where a landowner and responsible body chooses to.
  • Some considered that the public or third parties, such as public bodies, should have a role in monitoring and enforcement of covenants. Covenants are private agreements and we share the Law Commission’s view that to give the public or a third party a role would move them out of the private, voluntary sphere and into the public sphere. Responsible bodies will have been designated by the Secretary of State and can be delisted if they do not perform their functions.
  • Some respondents raised points about the public good element of covenants, and whether delivering a conservation purpose fulfilled the public good requirement. We share the Law Commission’s view that ‘public good’ should be used in a broad sense, and our guidance will help illustrate its meaning.
  • There was some concern prior to the consultation that covenants may be a barrier to development. After consultation, we remain of the view that covenants will not block development. Responses confirmed their likely value in net gain scenarios where they could facilitate development by securing compensatory habitat at another site.
  • Some respondents expressed concern that the value of land with covenants could fall. We remain of the view that land values could rise, fall, or stay the same. We will not be providing direct public funds to support covenants, as they are private agreements. It is a matter for the parties to be satisfied that they can fund the operation of their covenant….

Conclusion
We intend to introduce legislation for covenants in England in the Environment Bill. We will develop guidance to assist parties to conservation covenants. In terms of our proposed changes to the Law Commission proposals:

  • allowing for-profit bodies to apply to be responsible bodies received broad support. We intend to take this proposal forward. Responsible bodies can be designated by the Secretary of State if they meet relevant guidelines
  • we do not now intend to require responsible bodies to include the location and headline objectives of conservation covenants in annual reports. We do, however, intend to include a new provision in the Bill allowing the Secretary of State to set additional requirements for annual reports in secondary legislation
  • after consideration of consultation responses on tenants and landlords, we do not intend to set a threshold of 15 years remaining on a lease – but rather that we revert to the Law Commission proposals for tenants to have a lease of more than seven years with some time remaining on the lease. We also do not now think it is necessary to require either tenants or landlords to secure approval from each other to enter a covenant because tenants cannot act beyond the limits of their powers and legal obligations set out in the tenancy agreement.

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