If you’ve ever purchased a house or other land, you will probably have encountered ‘covenants’ – in essence, these are promises which restrict what you can do with your land, either by requiring you to do something or by forbidding you from doing it. Common examples include covenants not to convert a house into multiple flats, covenants to maintain walls or fences, and even covenants restricting the range of colours you can paint your house or forbidding the use of a washing line.
Last month, the government published plans to introduce an entirely new species of covenant, one that is particularly designed to secure environmental and heritage benefits for the public good. These ‘conservation covenants’ would be created by agreements between landowners and organisations such as local councils, Natural England or the National Trust (to be known as ‘Responsible Bodies’). The landowner would then be bound to use their land in certain ways as specified in the covenant in order to promote conservation – the Responsible Body would have the power to enforce the agreement in court if the landowner failed to meet their obligations.
The government expects conservation covenants to be used in two different scenarios. In the first, a landowner who has undertaken a great deal of conservation work on their land (such as rewilding, or restoring a historic building) could enter into a covenant with a Responsible Body – the covenant would bind later owners of the land, thereby preventing a purchaser (or inheritor) from undoing all of the original owner’s efforts. In the second scenario, an organisation which funds wildlife or heritage conservation work could use a conservation covenant to protect the improvements which it has funded. At present, there is little to prevent a landowner from ploughing up wildflower meadows or destroying newly-established hedges once a funding agreement or environmental stewardship scheme has run its course – the funding body could use a conservation covenant to secure both its investment and the environmental or heritage benefits.
Perhaps unsurprisingly, many of the potential Responsible Bodies have greeted this development with enthusiasm – it seems likely that conservation covenants could quickly become commonplace, especially for those landowners who often take advantage of government grant schemes for conservation and land management. Although a full assessment of the positives and negatives for farmers and landowners will have to wait until the system is in place and ‘bedded in’, a few potential issues can already be identified. Firstly, those landowners who agree to a conservation covenant will have to take care that the covenant does not put them in breach of the terms of any leases they have granted over the land. Conversely, tenants (who will also be able to enter into conservation covenants if their lease is for seven years or more, although such covenants would not bind the landlord after the end of the lease) could be at risk of forfeiting their lease entirely if they agree to a conservation covenant which is contrary to its terms. Another issue for landowners is that the default position will be for conservation covenants on freeholds to last forever, meaning that they will bind all future purchasers of the land for the rest of time. Agreeing to an onerous conservation covenant could therefore make it very difficult to sell your land, or significantly reduce its value. This would be particularly true for land with development potential, which could be entirely destroyed.
Given the current preoccupation with Brexit and the recent change in government (including the replacement of Michael Gove by Theresa Villiers as Secretary of State), the introduction of conservation covenants is probably a long way down the government’s list of priorities. However, with public interest in environmental matters at an all-time high, it seems likely that they will be introduced at some point in the near future – landowners and farmers should be aware of these developments, especially if you often take advantage of grants from government agencies or arrangements with conservation charities.